State of Maharashtra vs Mahipati Krishna Ingavale

J.M. Gandhi, J.—This is an appeal filed by the State of Maharashtra u/s 377 (1) of the Code of Criminal Procedure, 1973, against the order of the learned Judicial Magistrate, F. C., Malkapur, District: Kolhapur, dated 25th January 1974 convicting the accused u/s 33 (1) (c), (f) and (h) of the Indian Forests Act, and sentencing him to pay a fine of Rs. 3 in default to suffer R. 1. for 3 days u/s 243 of the Code of Criminal Procedure, 1898, for enhancing the sentence on the ground that the sentence passed by the learned Magistrate was inadequate.

As the conviction is based on the plea of guilty by the accused, it is not material for this judgment to refer to the facts of the case. The important question raised by Mr. Pinge for the accused, as this was an appeal for enhancement of sentence, is that u/s 377 (1) read with section 377 (2) of the Code of Criminal Procedure, 1973, it is not competent for the State of Maharashtra to direct the Public Prosecutor to file an appeal for enhancement of sentence on finding the sentence to be inadequate. In order to appreciate the law point raised by Mr. Pinge, it is necessary to go into a little detail about the provisions of the Code of Criminal Procedure, 1898 and 1973. The relevant sections for my consideration are, section 417 (1), section 435 read with section 439 (1) of the Old Code and section 377 (1) read with section 377 (2) and section 378 (1) read with section 378 (2) of 1973 Code, which are in the following terms:

417(1). Subject to the provisions of sub-section (5) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, 435(1). The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the State Government in this behalf may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his Jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation-All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 437.

(2) If any Sub-Divisional Magistrate acting tinder sub-section (1) considers that any inch finding, sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate.

(3)..........

(4) If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.

(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the powers conferred on a Court of Appeal by sections 423, 436, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429

Section 377 (1) and (2), section 378 (1) and (2) of the 1973 Code read as follows:

(1) Save as otherwise provided in sub-section (2) the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.

(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-section (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3) to the High Court from the order of acquittal.

It is submitted by Mr. Pinge that the appeal for enhancement is introduced for the first time by the new Act. Under the Old Act, there were no provisions for filing an appeal either by the State or by the complainant on the ground that the sentence passed by the lower Court was inadequate. But under the old Act, the High Court u/s 435 read with section 439 in its re-visional jurisdiction, was empowered to either suo motu enhance the sentence, if the Court came to the conclusion that the sentence was inadequate or if it was brought to the notice of the High Court, either by the State or by the Complainant by revision application that in a case the sentence passed by the trial Court or the Sessions Court was inadequate, after going through the records of the case, it should be enhanced. Mr. Pinge pointed out that this re-visional jurisdiction which was there under the Old Act has been now removed and instead a new provision has been introduced by the new Act. Under the new Act, the power is given to the State Government to file an appeal directing the Public Prosecutor to present the appeal to the High Court against the sentence in the ground of inadequacy. He submitted that this power of the State Government to file an appeal for enhancement was subject to provisions save and otherwise provided in sub-section (2) and subsection (2) provides that any such conviction in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, to the High Court against the sentence on the ground of inadequacy. In short, the submission of Mr. Pinge is that whenever section 377 (2) comes into operation, the State Government has no power to file an appeal against an order of conviction for enhancement of sentence on the ground of inadequacy He further submitted that looking to the provisions of section 377 (2) of the new Act, it is very clear that when the case falls, under sub-section (2) it was the Central Government which may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Mr. Pinge submitted that the scheme of section 377 (1) and (2) is so clear that if the offence for which a conviction has been found, is an offence under the Central Act, and if the agency which has investigated the offence is the agency other than one that which is provided by the Criminal Procedure Code, then it is only the Central Government, which may direct the Public Prosecutor to file an appeal against the conviction for enhancement of the sentence

Mr. Pinge then submitted that in order to appreciate the clear import of section 377 (2) if one were to look to section 378 (2) it is so clear that once the case falls u/s 377(2) it is only the Central Government which alone is empowered to direct the Public Prosecutor to file an appeal against the conviction for enhancement of sentence. He submitted that the provisions of section 378 (1) and (2) are exactly the same as section 417 (1) and (2) of the Old Act. Section 417 (2) as well as section 378 (2) provided that an appeal can be filed against the order of acquittal by the State Government as also by the Central Government, under certain circumstances mentioned. Now sub-section (2) of section 378 of the new Act provides that if such an order of acquittal is passed in a case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. He submitted that an appeal against the order acquittal is ordinarily provided u/s 378 (1) of the 1973 Code by the State Government in any case by directing the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any other Court than the High Court. Therefore, if the appeal is to be filed against the order of acquittal, it was the power of the State Government but by sub-section (2) of section 378 the Central Government may also direct the Public Prosecutor to file an appeal. In other words, section 378 (2) is an enabling section that even where the State Government does not wish to direct the Public Prosecutor to file an appeal against the order of acquittal, the Central Government can also do so under the circumstances mentioned in the provisions of section 378 (2). Mr. Pinge submitted that this difference in the language between section 377 (2) and 378 (2) clearly indicates that if the Legislature intended that even the State Government can also file an appeal against the order of conviction for enhancement of sentence on the ground of inadequacy of sentence, the language would have been used as it has been used in section 378 (2), that is, it would have been stated that the Central Government may also direct the Public Prosecutor to file an appeal. The absence of the word "also" clearly indicates that the Legislature has contemplated a specific scheme, namely, that where the conviction is under the Central Act and not under the State Act and the conviction is for an offence investigated not by the authorities appointed under the Code of Criminal Procedure but by the Agency or authorities appointed under the Central Act, then it is only the Central Government which can direct the Public Prosecutor for presenting an appeal against the order of conviction for enhancement on the ground of inadequacy. He submitted that in view of these new provisions, there are necessary corollaries which follow : (1) The original powers of revision either suo motu by the High Court or the High Court being informed by any other party cannot be now availed of by the State Government or by the complainant. (2) The appeal can be only competent provided it complied with the provisions of section 377 (1) or section 377 (2). (3) It is competent at the direction of the State Government directing the Public Prosecutor in a case falling u/s 377 (1) and it is competent only for the Central Government to direct the Public Prosecutor to file such an appeal if the case fell u/s 377 (2). He submitted that there cannot be any doubt that if the investigating agency was the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1945, then only the Central Government could have directed but because of the words used "by any other agency empowered to make investigation into an offence under any Central Act other than this Code," the question that has to be determined by the Court is whether if the agency empowered is other than the agencies mentioned in the Code of Criminal Procedure are the agencies or authorities appointed by the State Government, can it be said that the State Government can direct the Public Prosecutor to file an appeal for enhancement? He submitted that reading the section it is clear that in the absence of the word "also" in section 377 (2) which we find in section 378 (2) there cannot be any doubt that the Legislature contemplated that any offence under the Central Act if the investigating agency or the authorities are other than the authorities contemplated by the Criminal Procedure Code and the offence is one under the Central Act it is only the Central Government who can direct the public Prosecutor to present an appeal against conviction for enhancement on the ground of inadequacy. He submitted that the difference in the language of section 377 (2) and section 378 (2) must be given effect to by the Court. The Court cannot ignore the word "also" in section 378 (2) which is absent in section 377 (2). He further submitted that when drafting the new Code of Criminal Procedure Legislature wanted the provisions providing for both the State Government as well as the Central Government, empowering them to file an appeal against the order of acquittal retained the same language as it was u/s 417 (1) and section 417 (2) of the Old Code. He further submitted that it is not disputed by the State Government but on the contrary, clearly stated in the memo of appeal, para III Page B that the appeal is u/s 377 (1) and Mrs. Shenoy appearing for the State has also fairly stated that the appeal has been filed on the direction of the State Government and not on the directions of the Central Government.

Mr. Pinge submitted that if once the Court comes to the conclusion that the present case falls u/s 377 (2) and not u/s 377 (1) then the appeal is incompetent by the State Government. In support of his arguments, Mr. Pinge frankly stated that the provisions of section 377 (1) and (2) have not been considered as far as his research showed either by any other High Court or by the Supreme Court and, therefore, the interpretation of section 377 (2) of the new Code is to be made by this Court on the language of the section itself, without the assistance of any precedents either by High Courts or the Supreme Court. But, he submitted that in a recent judgment by the Supreme Court in Khemraj Vs. State of Madhya Pradesh, , the Supreme Court has considered the provisions of section 417 (2) of the old Code and especially the words "Central Government may also" and by that judgment it has been made very clear by the Supreme Court that these words clearly empower both the State Government as well as the Central Government to direct and appeal against the order of acquittal. He has drawn my attention to various paragraphs of that judgment. It is not necessary for me to refer to these paragraphs in the judgment because it is not disputed that the judgment clearly lays down that when u/s 417 (2) the phrase "Central Government may also" is mentioned it means that the State Government has a right to file an appeal against the order of acquittal but even the Central Government may also exercise the power to direct the Public Prosecutor to present an appeal against the order of acquittal. In para 14 the Supreme Court has observed as under:

The word "also" in sub-section (2) of section 417 is very significant. This word seems not to bar the jurisdiction of the State Government to direct the public prosecutor to present an appeal even in cases investigated by the Establishment. Subjection (1) of section 417 is in general terms and would take in its purview all types of cases since the expression used in that sub-section is "in any case". We do not see any limitation on the power of the State Government to direct institution of appeal with regard to any particular type of cases. Sub-section (1) of section 417 being in general terms is as such of wider amplitude sub-section (2) advisedly uses the word ''also'' when power is given the Central Government in addition to direct the Public Prosecutor to appeal.

Para 16 of the judgment reads as under :

As a matter of procedure it will be even permissible for the appeal against acquittal to be filed by the public prosecutor under the direction of the State Government or the Central Government without impleading either as a party.

Mr. Pinge submitted on the strength of this authority that by interpreting the original section 417 (2) it has been now specifically held by the Supreme Court that when the word "also" is used it has great significance and the greatest significance is that both the State Government as well as the Central Government, are empowered to direct the Public Prosecutor to present an appeal against the order of acquittal. He submitted that in the absence of the word of this very significant expression "also" in section 377 (2) the Legislature has advisedly departed from the procedure which they wanted in appeals against acquittal u/s 378 (2) and the appeals against conviction for enhancement on the ground of inadequacy u/s 377 (2). He submitted that if the Legislature wanted the State Government to exercise the power of presenting an appeal or directing the Public Prosecutor to present an appeal when the conviction was under the Central Act and the investigation was by the Agency other than the one provided by the Code of Criminal Procedure, sub-section (1) of section 377 would have been worded in terms as in section 417 (1) and section 377 (2) would have included the expression "also" which is absent. He submitted that as it is a matter of interpretation of the provisions of law, the Court should give effect to the legislative intent, namely, that in case of conviction under the Central Act, if an appeal for enhancement of sentence is to be filed, when the investigation is not done by the authorities under the Criminal Procedure Code, it is only the Central Government which can direct the Public Prosecutor to present an appeal for enhancement.

Against these arguments by Mr. Pinge, Mrs. Shenoy has taken me through various provisions of the Indian Forests Act, 1927. She submitted that the conviction is u/s 33 (1) (c), (f) and (h); that the offence has taken place at Kotali Forests, situate in Shabuwadi, Malkapur Taluka, that is in the State of Maharashtra. She submitted that tub-section (2) of section 2 of the said Act defines "forest officer". The Indian Forests Act, 1927 which is the Central Act (Act No 16 of 1927) is adopted by the State of Maharashtra and in its application to the State of Maharashtra, the State of Maharashtra has also published the Act. The Act on all material points is verbatim the same Sub-section (2) of section 2 defining the "forest officer" is exactly in the same language as in the Indian Forests Act. Section 2 (3) defines forest offence. Chapter IX, section 52 (2) provides power of seizure of property liable to confiscation. Under that section, power of seizure can be exercised by the forest officer or any police officer. Section 52 (2) provides that a report must be made by the officer to the Judicial Magistrate by the Forest Officer or the Police Officer. Section 54 provides that the Magistrate shall take cognizance of the offence and deal with the offender by arrest or such other methods as provided. Section 64 provides that the powers to arrest without warrant are given not only to the Police Officer but to the Forest Officer and Revenue Officer without a warrant from the Magistrate u/s 64 (3). u/s 67 powers to try offence summarily are provided. Section 68 provides for the power to compound offences Under Chapter XI, section 72 it is provided that the forest officers may be invested with certain powers and under this section the power to enter upon any land and to survey, demarcate and make a map of the same;(b) the powers of a Civil Court to compel the attendance of witnesses and the production of documents and material objects; (c) power to issue a search-warrant under the Code of Criminal Procedure, 1898 and (d) power to hold an inquiry into forests offences, and, in the course of such inquiry, to receive and record evidence, are provided. She also drew my attention to the Bombay Forest Manual, Vol. 2, Para. 3 Statutory Orders, which refers to the powers of the officers.

The main submission of Mrs. Shenoy is that section 377 (2) when refers to any other agency empowered, it must be an agency empowered by the Central Government and then only the Central Government can direct. Bat if the agency or person empowered are so empowered by the State Government and also officers of the State Government, that there is no necessity of the Central Government directing the Public Prosecutor to present an appeal for enhancement of sentence She submitted that the various provisions of the Act empowering the forest officers under the Forests Act in exercise of power of seizure, arrest, and inquiry are all done by the State Officers and the State is empowered to appoint officers for the purposes of investigation or enquiry. It is therefore submitted by Mrs. Shenoy that though it is true that the Indian Forests Act is a Central Act and though it is true that the investigation is held by the officer other than the officers provided by the Code of Criminal Procedure, It cannot be said that it is an agency empowered as contemplated, or an authority different from the officers mentioned in the Code of Criminal Procedure. She submitted that ho doubt that besides the Police Officers, the forest officer and the revenue officer are also empowered who ordinarily are. not invested with such powers under the Code of Criminal Procedure. These officers are designated by the State Government and they cannot be considered as agency empowered as contemplated u/s 377 (2).

I have carefully considered the arguments of Mrs. Shenoy. I have also carefully gone through the various provisions of the Act, but I am unable to persuade myself to interpret section 377 (2) mean that the agency empowered as referred to in that sub-section must be agency empowered by the Central Government, because nothing prevented the Legislature to use the expression, if they so desired to say "agency empowered by the Central Government." On the contrary, the sub-section used the language "agency empowered" under the Central Act and not by the Central Government. If the power to empower the authorities is delegated to the State Government under Central Act itself, it makes no difference as to who appoints the agency or the authorities to investigate into the case. Once the offence is under the Central Act and further it is shown that it could be investigated not by the officers contemplated by the Code of Criminal Procedure but by the officers and agencies other than those provided by the Code of Criminal Procedure, section 377 (2) comes into operation.

I see considerable force in the arguments of Mr. Pinge that the absence of the word ''also'' in section 377 (2) which expression is found in section 378 (2) which expression is also present in section 417 (2) which has been, now interpreted by the Supreme Court in a recent judgment which is of great significance. The absence of the word "also" in section 377 (2) clearly indicates that it is not both the State Government and the Central Government that can direct the Public Prosecutor to present an appeal but is only the Central Government which may direct the Public Prosecutor to present an appeal against the conviction of enhancement when the conviction is under the Central Act and the investigation is by the agency or the authorities other than those provided by the Code of Criminal Procedure. As the matter is of some importance and the power of the Government, namely, the State Government, which has been now considered u/s 377 for appeal for enhancement of sentence on the ground of inadequacy, I have summarised all the arguments advanced by both the sides and after analysing everything I have come to the conclusion that it is the duty of the Court not to add or detract any words from the section but to give effect to the legislative intent as provided by the language itself and in my opinion, the language is very clear when the Legislature wanted both the Central Government and the State Government empowering them to direct the Public Prosecutor to present an appeal against the order of acquittal, they have used the expression "also" in section 378 (2) and it used the expression for the State Government wide enough u/s 378 (1) whereas u/s 377 (2) it is specifically stated that it is the Central Government, which may direct the Public Prosecutor to present an appeal for enhancement

It is pertinent to note that the power of the State Government to file an appeal u/s 377 against the conviction for enhancement of sentence as stated in section 377 (1) is save as otherwise provided in sub-section (2). Therefore, the Legislature clearly wanted to restrict the powers of the State Government to file an appeal for enhancement of sentence in a case where the offence is not under the Central Act or even when the offence is under the Central Act, if the agency or authority is not as per the Code of Criminal Procedure.

As stated above, there is no dispute between the parties that the agency which investigated the case and made a report was the forest officer who is not an officer under the Code of Criminal Procedure to investigate or inquire into the offence. There is no dispute between the parties that The Central Government has not directed the Public Prosecutor to present an appeal. On the contrary, it is specifically mentioned in the memo of appeal that the appeal has been presented u/s 377 (1) by the State Government. Mrs. Shenoy has fairly stated that the directions given to the Public Prosecutor in the present appeal are given by the State Government and not by the Central Government. Therefore, when on the facts, there are no disputes, the question which has to be decided by the Court is purely a question of law, namely, the interpretation of the words of section 377 (2) of the 1973 Code. As observed above, the difference in the language between section 377 (2) and section 378 (2) clearly indicates that the Legislature had intended different authorities for the purposes of directing the Public Prosecutor under different circumstances to present an appeal for enhancement of sentence. In this view of the matter, I am of the opinion that the submissions made by Mr. Pinge must be accepted and the submissions of Mrs. Shenoy must be rejected. The result would be that on the point of law, I have come to the conclusion that it is not competent for the State Government to direct the Public Prosecutor to present an appeal for enhancement of sentence when the offence committed is one under the Central Act which could be investigated by the agency or authority other than that provided by the Criminal Procedure Code unless the Public Prosecutor is directed to file an appeal by the Central Government. The result, therefore, is that the appeal is not competent and therefore, it must be rejected and dismissed.

As this is an important point of law, dealing with the power of the State Government to prefer an appeal I feel it is necessary that besides disposing of the appeal on the law point raised by Mr. Pinge, I should make my observations with regard to the facts of the case.

Mrs. Shenoy for the State contended that the offence is a serious one as it is dealing with the property of the State being used by an individual for his personal gain and also obtaining wood which is valuable, which the accused wanted to use as a manure for agricultural purposes. She submitted that when a protected area of a forest u/s 30 of the Indian Forests Act is a prohibited area where certain acts on the part of individuals are prohibited and especially when cutting or felling the trees is prohibited to preserve the forest such an offence is a serious one. Against this submission of Mrs. Shenoy, on merits, Mr. Pinge has pointed out that in this case, there is nothing to show that the offence is serious. On the contrary, looking to the pleas of guilt, and the short order passed by the learned Magistrate ordering only Rs. 3 fine, i e. Re. 1 on each count, clearly shows that the learned Magistrate has found the offence to be merely technical and the offence was not one where seriously there is an attempt on the part of the accused to encroach upon the Government land or to cut down the trees so as to enable him to cultivate the land. It is true that some branches were cut and that those branches may have been cut by the accused to be used as manure for his cultivation purposes outside the forest. In this view of the matter, Mr. Pinge submitted that the order indicates that, though it does say in so many words, the offence is merely a technical one of cutting the branches of a tree and not serious one of deforestation or encroaching upon the land for the purpose of using the land by the person for agricultural purposes. Mr Pinge relying upon Ramashraya Chakravarti Vs. State of Madhya Pradesh, submitted that ordinarily the High Court should not exercise the power of enhancement of sentence when the offence is not a serious one and when there is nothing on the record to show that it calls for the interference by the High Court in the discretion used by the lower Court. On merits also I find that there is nothing on the record to show the seriousness of the offence and I see considerable force in Mr. Pinge''s arguments that the High Court should be reluctant to interfere in matters of enhancing the sentence when the lower Court has after considering the case given certain sentence in the exercise of discretion vested in the Court itself.

In the result even if on the point of law which I have decided in favour of the accused and against the State, if I am in error, I am of the opinion that on merits too in this appeal, I would not exercise my power and allow the appeal, to enhance the sentence. Therefore, on merits also, I dismiss the appeal of the State.

This judgment will dispose of the law point as well as on merit, it will be applicable to two other appeals, namely, Criminal Appeals Nos. 812 and 813 of 1974, where the facts and the points of law, arising are the same. Therefore, I do not propose to separately pass orders in Criminal Appeals Nos. 812 and 813 of 1974, but direct that both the appeals, which raise the same points which are raised in Criminal Appeal No. 811 of 1974, as stated above, will also stand dismissed.

All the three Criminal Appeals for enhancement of sentence are dismissed.