Calcutta High Court (Appellete Side)
State Of West Bengal vs Subhas Bhowmik @ Baban & Ors on 4 August, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
04.08.2016
ag
GA No. 3 of 2015
State of West Bengal
Versus
Subhas Bhowmik @ Baban & Ors.
With
CRA No. 98 of 2015
Priyanka Dutta
Versus
State of West Bengal & Ors.
Mr. Bikashranjan Bhattacharya, Sr. Advocate,
Mr. Sabyasachi Chatterjee,
Mr. Sourav Mondal,
Mr. Aniruddha Bhattacharyya ...for the Appellant in CRA 98/2015
Mr. Sudipta Moitra,
Mr. Anand Keshri,
Mr. Biplob Das,
Mr. Vijay Verma ...for the State/Appellant in GA 3/2015
Mr. Sekhar Basu, Sr. Advocate
Mr. Soubhik Mitter ...for the Respondent No.4 in CRA 98/2015
Mr. Milon Mukherjee, Sr. Advocate,
Mr. Biswajit Manna ...for the Respondent Nos.2-6 in CRA 98/2015
These two appeals are directed against a judgment and order of
acquittal of five accused persons, namely, (1) Ashit Gayen, (2) Sasti Gayen,
(3) Kartick Das, (4) Subhas Bhoumik @ Baban and (5) Ramesh Mahato dated
December 6, 2014 passed by the learned Additional District & Sessions
Judge, Fast Track 1st Court, Howrah in S.T. No.88 of 2012 arising out of
Bally Police Station Case No.205 of 2011 (G.R. Case No.2097 of 2011) dated
May 6, 2011 under Sections 302/120B/34 of the Indian Penal Code
(hereinafter referred to as the I.P.C.) read with Sections 25/27/35 of the
Arms Act.
A separate charge sheet dated September 26, 2011 was filed against
two other accused persons, namely, Santosh Singh and B. Raju under
Sections 302/120B/34 of the I.P.C. read with Sections 27/35 of the Arms Act
showing both of them as absconder before the learned Chief Judicial
Magistrate, Howrah. Consequent thereupon, the names of the aforesaid
two accused persons were "filed for the present" by an order dated March
22, 2012 passed by the aforesaid learned Chief Judicial Magistrate, Howrah.
An application bearing CRMSPL No.1 of 2015 filed by the State of
West Bengal against the aforesaid judgment and order of acquittal filed
under Section 378 (1) (b) of the Cr.P.C. was allowed by an order dated April
6, 2015 granting special leave to prefer the appeal. Subsequently, the
appeal bearing GA No.3 of 2015, the former one before us, was admitted by
an order dated May 15, 2015.
The later appeal bearing CRA No.98 of 2015 preferred by Priyanka
Dutta daughter of the deceased person Tapan Dutta under the proviso to
Section 372 of the Cr.P.C. has been directed to be heard by an order dated
April 8, 2015.
At the very outset, a preliminary objection is raised by Mr. Sekhar
Basu, learned Senior Advocate appearing on behalf of the accused persons
with regard to the maintainability of the later appeal bearing CRA 98 of
2015. According to Mr. Basu, the above appeal has been filed by the
appellant as a victim as defined under sub-section (wa) of Section 2 of the
Cr.P.C. It is further contended by him that the right of questioning
correctness of the judgment and order of acquittal by preferring an appeal
to the High Court, under the proviso to Section 372 of the Cr.P.C., which is
conferred upon the victim including the legal heir and others as defined
under sub-section (wa) of Section 2 of the Cr.P.C., is subject to obtaining of
a leave of the High Court as provided under sub-section (3) of Section 378
of the Cr.P.C. It is submitted by Mr. Basu that since the appellant failed to
file an application praying for a leave to appeal under sub-section (3) of
Section 378 of the Cr.P.C., there is no scope to hear the appeal on merit at
this stage.
Reliance is place by Mr. Basu on the decisions of Satya Pal Singh,
reported in 2016 (1) AICLR 7 (S.C.) 7, P.V. George & Ors. vs. State of Kerala
& Ors., reported in (2007) 3 SCC 557, M.A. Murthy vs. State of Karnataka &
Ors., reported in (2003) 7 SCC 517, B.A. Linga Reddy & Ors. vs. Karnataka
State Transport Authority & Ors., reported in (2015) 4 SCC 515 and State of
West Bengal vs. Munwar Ali Khan, reported in (2010) 3 C Cr. LR (Cal) 256
in support of his above submissions.
It is submitted by Mr. Sudipta Moitra, learned State Advocate, that
the intention of the legislature to incorporate a proviso into the body of
Section 372 of the Cr.P.C. by virtue of the Criminal Procedure Code
(Amendment) Act, 2008 is to create a status of the "victim" widening the
definition of "victim" by insertion of sub-section (wa) of Section 2 of the
Cr.P.C. According to him, it gives a locus to the victim creating a right of
appeal against any order passed by the Court acquitting the accused or
convicting for a lesser offence or imposing inadequate compensation in
favour of the victim which is a creature of the statute. According to him,
while a procedure is provided in the principal Section to the effect that no
appeal should lie from any judgment or order of a Criminal Court except as
provided for by this Code or by any other law for the time being in force,
the right of appeal created in favour of the "victim" by way of
incorporating the aforesaid proviso to the above statutory provision, is
subject to the procedure prescribed in sub-section (3) of Section 378 of the
Cr.P.C. in case of appeal against any order passed by the Court acquitting
the accused, amongst others. According to Mr. Moitra, the above
submission lends support from legislative history to find out the object
behind the amendment under reference.
Reliance is place by Mr. Moitra on the decisions of Vishesh Kumar
vs. Shanti Prasad, reported in (1980) 2 SCC 378 and South Asia Industries
Private Ltd. vs. S. Sarup Singh, reported in AIR 1966 SC 346 in support of
his above submissions.
It is submitted by Mr. Milon Mukherjee, learned Senior Advocate
appearing on behalf of one of the accused persons, that the legal issue
relating to the statutory right of a victim as defined in sub-section (wa) of
Section 2 of the Cr.P.C. to prefer an appeal to the High Court under proviso
to Section 372 of the Cr.P.C. against the order of acquittal has already been
decided by the Apex Court in the matter of Satya Pal Singh (supra).
According to the above judgment, such an appeal cannot be preferred
without obtaining the leave of the High Court as required under sub-
section (3) to Section 378 of the Cr.P.C. According to Mr. Mukherjee, the
intention of the legislature to give a right to the victim to prefer an appeal
against order of acquittal by way of introducing a proviso to Section 372 of
the Cr.P.C. is to give protection to the accused similar to that given in case
of preferring appeal by the prosecutor. According to him, the above
protection is provided in sub-section (3) of Section 378 of the Cr.P.C. by
way of a safeguard to the accused persons.
On the other hand, it is submitted by Mr. Bikashranjan Bhattacharya,
learned Senior Advocate appearing on behalf of the appellant in the above
appeal (later one) that the proviso to Section 372 of the Cr.P.C. has been
introduced by the legislature for the purpose of creating a special right in
favour of the victim to prefer appeal against an order of acquittal, amongst
others, for the first time in the country. According to him, the legislative
history of the above enactment, as appeared from the statement of objects
and reasons of the Criminal Procedure Code (Amendment) Bill, 2006
speaks of creation of the aforesaid right in favour of the victim which is not
similar to that of the prosecutor, i.e. the State Government, the Central
Government or the complainant, as the case may be. According to him, no
amendment has been carried on by the legislature in respect of the
provisions of sub-section (3) of Section 378 of the Cr.P.C. with the intention
not to create similar restriction in case of preferring an appeal by a victim
against an order of acquittal, amongst others.
His next contention is that the term "to prefer" is different from the
term "to present" according to literal/grammatical meaning. While the
former one speaks of putting forward for consideration on merit, the later
one speaks of presentation for prima facie consideration of the question of
hearing on merit. It is further submitted by him that the Hon'ble Supreme
Court delivered the judgment of Satya Pal Singh (supra) considering the
facts and circumstances of the above case so far as the leave which might be
granted to the appellant in that case. According to him, it was not a
judgment in rem.
Reliance is placed by Mr. Bhattacharya on the decisions of Manik Lal
Majumdar & Ors. vs. State of Tripura, reported in (2004) 12 SCC 448, Manik
Lal Majumder vs. Gouranga Chandra Dey, reported in 2005 (2) SCC 400,
Commissioner of Income Tax (Central) vs. B.N. Bhattacharjee & Anr.,
reported in (1979) 4 SCC 121, Nirmal Kumar Batabyal vs. The State of West
Bengal, reported in (2016) 2 C Cr. LR (Cal) 534, M/s. PCS Industries Ltd. vs.
State of West Bengal & Anr., reported in 2012 Cri. LJ 135, L. Chandra
Kumar vs. Union of India & Ors., reported in (1995) 1 SCC 400, Union of
India & Ors. vs. Mohd. Ramzan Khan, reported in (1991) 1 SCC 588 and
Sakinala Hari Nath & Ors. vs. State of Andhra Pradesh & Ors., reported in
1993 ( 3) ALT 471 in support of his above submissions.
Having heard the learned Counsel appearing for the respective
parties on the aforesaid preliminary objection and in interpreting the
provision of Section 372 of the Cr.P.C. consequent upon import of
legislation from a proviso wholesale into the body of the aforesaid Section
widening the definition of "victim" by insertion of sub-section (wa) to
Section 2 of the Cr.P.C. by virtue of the Criminal Procedure Code
(Amendment) Act, 2008, we find that the above issue was the subject matter
of consideration before the Hon'ble Supreme Court in the matter of Satya
Pal Singh (supra). According to Mr. Bikashranjan Bhattacharya, the above
judgment was in personem and the ratio laid down in the above decision
was not a judgment in rem having no binding effect on all cases under the
provisions of Article 141 of the Constitution of India. So, we address the
issue in question in the following manner.
We recollect that the object of all interpretation is to discover
intention of the legislature. In doing so one must keep in mind the
observation of Lord Parker C.J. made in Capper & Anr. vs. Baldwin,
reported in (1965) 2 Q.B. 53 (at page 61), that the intention of Parliament
must be deduced from the language used and the relevant portion of the
above decision is quoted below:-
"I agree that it is very odd, but the intention of Parliament must be
deduced from the language used, and it may well be that Parliament
expected the necessary limitation to be imposed by the permit which is a
condition precedent to the operation of such a machine in such a place."
Further, in order to ensure that the meaning that correctly conveys
the legislative intention, determination and application of legal meaning of
the enactment is required. Usually, this corresponds to grammatical
meaning of the verbal formula which constitutes the enactment. But in the
event the verbal formula in its application to the facts of the case is
ambiguous, the legal meaning leads to a doubt. Only in case of such an
enactment, it should be given a strained construction for the purpose of
arriving at the legal meaning.
It will not be out of context to keep in mind the basic rule of
interpretation of a statutory provision that the interpreter cannot judge
soundly what mischief an enactment is intended to remedy without having
knowledge about the previous state of the law, the defects found to exist in
that law, and the facts that caused the legislature to pass the Act in
question.
Now, in order to deal with the task of interpretation of the
enactment under reference, the pre-amended prevision of Section 372 of the
Cr.P.C. is quoted below:-
"372. No appeal to lie unless otherwise provided.-No appeal
shall lie from any judgment or order of a Criminal Court except as provided
for by this Code or by any other law for the time being in force:"
In view of the above, unless there was a provision in the Code of
Criminal Procedure or any other law for the time being in force, no appeal
should lie from any judgment or order of a Criminal Court. At that point of
time, the victim nowhere figured in the entire scheme of the Code or in
other words the Code of Criminal Procedure, as it stood prior to the
amendment in the year 2008, recognised the following parties:-
(i) The accused;
(ii) The State or prosecution; and
(iii) The complainant (who may or may not be a victim)
Noteworthy, that in accordance with the provisions of sub-section
(3) of Section 378 of the Cr.P.C. no appeal to the High Court at the instance
of (i) the State or prosecution, (ii) the complainant could be entertained
except with the leave of the High Court. At that point of time, the State was
recognised as the custodian of the interest of the victim of crime and the
victim was not entitled to play any active role at any stage of the criminal
proceeding save and except in setting the criminal law in motion by
lodging a complaint to the police station or to proceed with a complaint
case as provided under Chapter XV of the Cr.P.C. The success or failure of
the prosecution was depending upon the efficiency of the investigating
officer during investigation and upon the public prosecutor at the time of
trial. Under the provisions of Section 225 of the Cr.P.C. in every trial before
a Court of Session the prosecution should be conducted by a public
prosecutor. Section 24 of the Cr.P.C. provided for appointment of a public
prosecutor for conducting in High Court, any prosecution appeal or other
proceeding on behalf of the Central Government or State Government, as
the case may be. Proviso to sub-section (8) of Section 24 of the Cr.P.C. was
the only opportunity available to the victim to engage an advocate of his
choice to assist the prosecution under the above sub-section.
The Law Commission undertook a comprehensive review of the
Code of Criminal Procedure in its 154th report which laid emphasis in its
recommendations on the provisions concerning arrest, custody and
remand, procedure for summons and warrant-cases, compounding of
offences, victomology, special protection in respect of women and inquiry
and trial of persons of unsound mind. The legislature decided to amend
the Code of Criminal Procedure on the basis of the above recommendations
of the Law Commission of India made in its 154th report as also in view of
the various judicial pronouncements of the Supreme Court emphasising
change in the legislative policy for taking care of the interest of victims. For
the purpose of proper appreciation of the pre-amendment legislative
history, the statement of objects and reasons of the Code of Criminal
Procedure (Amendment) Bill, 2006 is quoted below:-
"STATEMENT OF OBJECTS AND REASONS"
The need to amend the Code of Criminal Procedure, 1973 to ensure
fair and speedy justice and to tone up the criminal justice system has
been felt for quite sometime. The Law Commission has undertaken a
comprehensive review of the Code of Criminal Procedure in its 154th
report and its recommendations have been found very appropriate,
particularly those relating to provisions concerning arrest, custody
and remand, procedure for summons and warrant-cases,
compounding of offences, victimology, special protection in respect
of women and inquiry and trial of persons of unsound mind. Also,
as per the Law Commission's 177th report relating to arrest, it has
been found necessary to revise the law to maintain a balance between
the liberty of the citizens and the society's interest in maintenance of
peace as well as law and order.
2. The need has also been felt to include measures for preventing
the growing tendency of witnesses being induced or threatened to
turn hostile by the accused parties who are influential, rich and
powerful. At present, the victims are the worst sufferers in a crime
and they don't have much role in the court proceedings. They need
to be given certain rights and compensation, so that there is no
distortion of the criminal justice system. The application of
technology in investigation, inquiry and trial is expected to reduce
delays, help in gathering credible evidences, minimise the risk of
escape of the remand prisoners during transit and also facilitate
utilisation of police personnel for other duties. There is an urgent
need to provide relief to women, particularly victims of sexual
offences, and provide fair-trial to persons of unsound mind who are
not able to defend themselves. To expedite the trial of minor
offences, definition of warrant-case and summons-case are to be
changed so that more cases can be disposed of in a summary manner.
3. The Code of Criminal Procedure (Amendment) Bill, 2006 seeks
to achieve the above objectives.
New Delhi SHIVRAJ V. PATIL."
The 14th August, 2006.
Therefore, the object and purpose of amending the Code of Criminal
Procedure by virtue of the Criminal Procedure (Amendment) Act, 2008 was
to safeguard the interests of the victim whereby a right of statutory appeal
was conferred upon the victim apart from the existing right of the accused,
the State or the prosecution and the complainant in the following manner:-
(i) inserting sub-section (wa) to Section 2 for the purpose of
widening the definition of "victim".
(ii) introducing legislation from a proviso wholesale into the body of
Section 372 of the Cr.P.C. For the purpose of proper interpretation of the
above provisions the same are quoted below:-
"2. (wa) - "victim" means a person who has suffered any loss or
injury caused by reason of the act or omission for which the accused person
has been charged and the expression "victim" includes his or her guardian
or legal heir;"
"372. No appeal to lie unless otherwise provided.-No appeal
shall lie from any judgment or order of a Criminal Court except as provided
for by this Code or by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against
any order passed by the Court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation, and such appeal shall
lie to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.]"
On a plain reading of the provisions sub-section (wa) of Section 2 of
the Cr.P.C. we find no doubt about the object of the amendment to the
context in widening of the definition of "victim" by incorporating the
guardian or legal heir of a person who has suffered any loss or injury
caused by raising of the act or omission for which the accused person has
been charged.
After careful consideration of the proviso to Section 372 of the
Cr.P.C., we are of the opinion that a right has been conferred upon the
victim to prefer an appeal against any order passed by the Court acquitting
the accused or convicting for a lesser offence or imposing inadequate
compensation. After considering the rival submissions made on behalf of
the respective parties to this appeal we find that the main controversy
centers round the procedure to be followed by the victim to prefer an
appeal in such a case.
In CIT vs. Indo-Mercantile Bank Ltd., reported in AIR 1959 SC 713,
it has been observed by a three Judges Bench of the Hon'ble Supreme Court
as follows:-
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
............................................................
The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Corporation of City of Toronto v. Attorney- General for Canada.)"
Therefore, even after carving out an exception to the main enactment, a proviso has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect.
We cannot ignore that a proviso will not be construed as reducing the purview of the enactment to a nullity. In R.S. Swamiji vs. State of Mysore, reported in AIR 1966 SC 1172, it was observed by a Constitution Bench of the Hon'ble Supreme Court that an exception cannot be allowed to swallow the general rule and the relevant portion of the above decision is quoted below:-
". . . . On the other hand, if the main provision is construed to mean that the time prescribed by it was to apply generally only with certain exceptions contemplated by the proviso, that would be a different matter. However, it is not necessary for us to pursue this point further and to express a definite opinion on the general proposition that an exception cannot swallow the general rule, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
The provisions of Section 372 of the Cr.P.C. finds its place in Chapter-XXIX relating to appeals. According to the principal provision of Section 372, no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
As discussed hereinabove Section 378 of the Cr.P.C., which finds place in the same chapter of the Code, dealt with appeal in case of acquittal. At the instance of the following parties:-
(i) The State or prosecution;
(ii) The Complainant In the proviso in dispute a right has been conferred upon the victim to prefer an appeal in the contingencies recorded hereinabove. But in view of the settled proposition of law the above proviso carves out an exception to the main enactment though there is no provision in the main enactment entitling a victim to prefer an appeal in the contingencies provided in the proviso and for operation in the same field. But the language of the main enactment is so clear, it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says.
Further, on a harmonious reading of the principal provision of Section 372 as a whole read with that of sub-section (3) of Section 378 of the Cr.P.C., the intention of the legislature is that the right to prefer an appeal by the victim provided in the proviso to Section 372 of the Cr.P.C. is subject to making a prayer before the High Court for a leave. Or in other words though the intention of the legislature behind conferring a right upon the victim after widening its definition to prefer an appeal against a judgment and order of acquittal, amongst others, by introducing proviso to Section 372 of the Cr.P.C. in the body of the above Section, the same procedure of praying for a leave to prefer an appeal must be followed like other parties as mentioned hereinabove.
Ultimately we find that the interpretation of provisions of Section 372 of the Cr.P.C. after its amendment by virtue of the Criminal Procedure Code (Amendment) Act, 2008 was under consideration in the decision of Satya Pal Singh (supra) and the above issue has been concluded by the Apex Court as under:-
"13. Thus, to conclude on the legal issue:
whether the Appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Code of Criminal Procedure without obtaining the leave of the High Court as required Under Sub-section (3) to Section 378 of Code of Criminal Procedure, this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others as defined Under Section 2 (wa) of Code of Criminal Procedure, under proviso to Section 372, but only after obtaining the leave of the High Court as required Under Sub-section (3) to Section 378 of Code of Criminal Procedure. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order."
Therefore, it is a precedent binding upon this Court under Article 141 of the Constitution of India.
In view of the discussions and observations made hereinabove, we do not find any substance in the submissions made by Mr. Bikashranjan Bhattacharya that while a special right is created by the legislature in favour of the victim by way of amendment of the Code of Criminal Procedure under reference to prefer an appeal against a judgment and order of acquittal, amongst others, the legislature has created such right ignoring the provisions of sub-section (3) of Section 378 of the Cr.P.C. Otherwise, it will be an attempt of making a class within class of the parties who are entitled to prefer an appeal before the High Court against a judgment and order of acquittal.
We further find that in the event grammatical meaning of the verbal formula is assigned to the term "to prefer" an appeal making a distinction with the term "to present" an appeal, it would be opposed to the settled proposition of law that a proviso ordinarily is but a proviso although the golden rule is to read the whole section, inclusive of the proviso in such manner that they mutually throw light on each other and result in a harmonious construction.
With regard to the scope of considering the question of praying for a leave by the appellant to prefer an appeal at this stage, admittedly the instant appeal has been filed by the appellant without praying for a leave for the same before the judgment in the matter of Satya Pal Singh (supra) is delivered. We are of the view that unless the effect of a judgment interpreting a statutory provision is given prospective effect, the same become applicable during the entire period of existence of such statutory provision.
Admittedly, the appeal bearing CRA 98 of 2015 has not been filed adhering to the provisions of Section 372 of the Cr.P.C. read with sub- section (3) of Section 378 of the Cr.P.C. In Nazir Ahmad vs. King Emperor, reported in AIR 1936 PC 253, the question for consideration was whether the oral evidence of a Magistrate regarding the confession made by an accused, which had not been recorded in accordance with the statutory provisions of Section 164 of the Cr.P.C. would be admissible. For the first time in India the Judicial Committee of the Privy Council decided the above issue adopting the rule laid down in Taylor vs. Taylor, reported in (1876) 1 Ch 426, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance were necessarily forbidden.
The above proposition of law was repeated and reiterated in the matter of State of U.P. vs. Singhara Singh, reported in AIR 1964 SC 358, CIT vs. Anjum M.H. Ghaswala, reported in (2002) 1 SCC 633 and Ram Phal Kundu vs. Kamal Sharma, reported in (2004) 2 SCC 759. The relevant portion of the decision of Ram Phal Kundu (supra) is quoted below:-
". . . . The rule laid down in Taylor v. Taylor that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, was adopted for the first time in India by the Judicial Committee of the Privy Council in Nazir Ahmad v. King Emperor. The question for consideration was whether the oral evidence of a Magistrate regarding the confession made by an accused, which had not been recorded in accordance with the statutory provisions viz. Section 164 CrPC would be admissible. The First Class Magistrate made rough notes of the confessional statements of the accused which he made on the spot and thereafter he prepared a memo from the rough notes which was put in evidence. The Magistrate also gave oral evidence of the confession made to him by the accused. The procedure of recording confession in accordance with Section 164 CrPC had not been followed. It was held that Section 164 CrPC having made specific provision for recording of the confession, oral evidence of the Magistrate and the memorandum made by him could not be taken into consideration and had to be rejected. In State of U.P. v. Singhara Singh a Second Class Magistrate not specially empowered, had recorded confessional statement of the accused under Section 164 CrPC. The said confession being inadmissible, the prosecution sought to prove the same by the oral evidence of the Magistrate, who deposed about the statement given by the accused. Relying upon the rule laid down in Taylor v. Taylor and Nazir Ahmad v. King Emperor it was held that Section 164 CrPC which conferred on a Magistrate the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. This principle has been approved by this Court in a series of decisions and the latest being by a Constitution Bench in CIT v. Anjum M.H. Ghaswala."
Applying the above settled proposition of law we find no force in the above contention.
Though the judgment of Dineshbhai Makawana (supra) had been delivered by a three Judges Bench of High Court of Gujarat on the issue involved in the instant appeal, the same does not help the appellant in the instant case, in view of the fact that the judgment in Satya Pal Singh (supra) was delivered subsequently on the issue on October 6, 2015 by the Hon'ble Supreme Court. Needless to point out that it has been held hereinabove that the judgment in Satya Pal Singh (supra) is in rem and binding in nature upon all Courts.
In the matters of Manik Lal Majumder (supra) and Commissioner of Income Tax (Central) (supra) the term "to prefer" was interpreted to the context of the relevant enactments taking into consideration the object behind such legislation. In view of the discussions and observations made hereinabove with regard to the aforesaid term, the aforesaid judgments have no manner of application in the instant appeal.
The decision of Nirmal Kumar Batabyal (supra) is taken into consideration by us on its persuasive value and we find that it has been held in the above decision in the event the victim prefers an appeal to the Court of Sessions in terms of proviso to Section 372 of the Code of Criminal Procedure, no leave is required to be granted in terms of sub-section (3) of Section 378 of the Cr.P.C. but leave has only to be granted in case of appeals before the High Court and not before any other Forum. So, the above judgment does not come as an aid to the appellant.
In the matter of M/s. PCS Industries Ltd. (supra) the issue was the law relating to dismissal of appeal for default or non-prosecution in the light of the provisions of Sections 385 and 386 of the Cr.P.C. It has no manner of application on the instant appeal.
In the decisions of L. Chandra Kumar (supra) and Mohd. Ramzan Khan (supra), effect of those judgments were given prospectively in expressed terms as discussed hereinabove. In absence of such expression the above principle cannot be applied in giving effect to a judgment where interpretation of a statutory provision is under consideration.
In view of the distinguishable facts and circumstances of the instant case, the decision of Sakinala Harinath (supra) does not help the appellant in the instant case in any way.
In view of the discussions and observations made hereinabove, we are of the opinion that there is no existence of the later appeal bearing CRA 98 of 2015 in the eye of law since no leave has been prayed for and the same cannot be entertained except with the leave of this High Court in accordance with the provisions of sub-section (3) of Section 378 of the Cr.P.C.
Let the above appeal go out of the list for the present to enable the appellant to take steps in accordance with the provisions of the Cr.P.C. in the light of the observations hereinabove. Leave is granted to the appellant to take back the certified copy of the impugned judgment after replacing the same by a photostat true copy.
Let the former appeal bearing GA No.3 of 2015 be heard today. Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertakings.
(Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)