Devisahai vs Govindrao

Dixit, J.—This is an application u/s 417 (3) Code of Criminal Procedure for leave to appeal against a decision of the Additional District Magistrate, Indore, acquitting the non-applicants of charges under Ss. 420, 467 and 471 I.P.C.

It is not necessary to refer to the facts of the case, for this petition must be dismissed on the ground that in this case the applicant has no right of appeal at all and his application u/s 417 (3) for leave to appeal is not competent.

The applicant made his complaint against the non-applicants in respect of offences mentioned above in 1951. The decision of the Additional District Magistrate acquitting the non-applicants was pronounced on 19th December, 1955. The complaint was thus lodged and the case was decided before the commencement of the Code of Criminal Procedure (Amendment) Act, 1955. Now, under the Criminal Procedure Code, as it stood before it was amended in 1955, the State alone had the right of appeal against a decision of acquittal. The complainant had no right of appeal although he could move the High Court in its revisional jurisdiction for interfering with the order of acquittal. A right of appeal against an acquittal subject to the leave of the High Court was conferred on a private complainant for the first time by the Code of Criminal Procedure (Amendment) Act, 1955, which inserted a new Sub-section, namely Sub-section (3), in S. 417 Cr. P.C. The Petitioner thus bad no right of appeal in this case on the date of the filing of the complaint, If he had no such right on the date on which he filed his complaint, then he could not claim the right under the new Sub-section (3) of S. 417 Cr. P.C., unless the Code of Criminal Procedure (Amendment) Act, 1955, expressly or by its necessary intendment confers on private complainants the right of appeal in complaints instituted before the amending Act came into force. This is clear from the decision of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, which now firmly establishes the proposition that the right of appeal is not a mere matter of procedure but is a substantive right; that it accrues to the litigant and exists as on and from the date the lis commences; and that where a right of appeal is vested, it can be taken away only by a subsequent enactment, if it so provides expressly or by necessary Intendment and not otherwise. The express provision in the amending Act is, however, to the contrary and that is S. 116 of the Code of Criminal Procedure (Amendment) Act, 1955, which is a saving provision. After saying that certain provisions of the principal Act, as amended, shall not apply to the relevant pending proceedings. S. 116 proceeds to say--

but, save as aforesaid, the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement.

This provision makes it very clear that the benefit of S. 417 (3) is not available to a complainant in a case which was instituted and even decided before the commencement of the Act.

Mr. Sanghi, learned Counsel for the applicant, urged that this application for leave to appeal u/s 417 (3) was filed on 9th February, 1956, and was a proceeding instituted after the commencement of the Code of Criminal Procedure (Amendment) Act, 1955, and that, therefore, S. 417 (3) was applicable. This argument is fallacious and must be rejected. It overlooks the fact that when the question is of the applicability of an amendment made by the Code of Criminal Procedure (Amendment) Act, 1955, and of the competency of the proceedings thereunder, the words "all proceedings" which first occur in the last para of S. 116 must necessarily refer to proceedings other than those purported to have been taken under the amendment. This is plain enough. The application for leave to appeal cannot, therefore, be regarded as a proceeding for the purpose of considering the applicability of S. 417 (3) and for determining whether the application is competent under that section. A similar argument was raised in Dulan Dayal Singh Vs. Prasadi and Others, and was rejected by a Division Bench of the Allahabad High Court as unsound on the ground that it is a condition precedent for the institution of a proceeding that the person concerned should have a right to institute it. In the Allahabad case it was also held that the right given by S. 417 (3) Cr. K.C., as amended, is not available to a complainant whose complaint ended in acquittal prior to the enforcement of that Act.

I am clear in my mind that in this case the complainant has no right of appeal. When there is no right of appeal at all, the question of granting or refusing leave to appeal does not arise. I would, therefore, dismiss this petition.

In the result, the petition is dismissed.