Bombay High Court
M/S. Piramal Diagnostics Services ... vs The State Of Maharashtra And Anr on 10 March, 2023
Author: Prakash D. Naik
Bench: Prakash D.Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.817 OF 2022
M/s.Piramal Diagnostics Services Pvt.Ltd. Appellant
versus
The State of Maharashtra and another Respondents
WITH
INTERIM APPLICATION NO.4130 OF 2022
T.Kannan Applicant
versus
M/s.Piramal Diagnostics Services Pvt.Ltd
and another Respondents
Mr.Ram Apte, Senior Advocate, with Mr.Vinay Kanodia, Mr.Devendra
Tiwari, Harshal Nahata i/by Law Chamber of Siddharth Murarka for
Appellant.
Mr.S.S.Kumar with Mr.Firoz Behlim, Advocate for Respondent no.2.
Mrs.Veera Shinde, APP, for Respondent-State.
CORAM : PRAKASH D.NAIK, J.
DATE : 10th March 2023 PC :
1. Pursuant to order dated 9th November 2022, 25th January 2023 and 8th February 2023 and praecipe moved by learned advocate for Appellant, the proceedings are listed before this Court for speaking to minutes/modification of order dated 22nd July 2022.
2. Although appellant had moved the praecipe for limited purpose, in view of several objections urged by learned advocate for respondent no.2 and submissions advanced by both the sides, this Court is called upon to pass elaborate order.
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3. Appellant is the original complainant in complaint filed for offence u/s.138 of Negotiable Instruments Act. Vide judgment and order dated 26th April 2017 respondent no.2 was convicted for offence u/s.138 of Negotiable Instruments Act. The judgment of conviction was challenged by respondent no.2 before Sessions Court by preferring an appeal. Vide judgment and order dated 28 th June 2018 learned Sessions Judge allowed the appeal and acquitted respondent no.2. The order passed by Sessions Court for Greater Bombay is challenged by appellant before this Court. Initially appellant moved Criminal Revision Application No.517 of 2018 before this Court. Vide order dated 22 nd July 2022 it was observed by me, that complainant had presented revision application challenging judgment and order of acquittal. In accordance with Section 378(4) of Cr.P.C the appeal is maintainable against order of acquittal passed by Sessions Court. Learned advocate for revision applicant sought permission to convert the revision application into appeal as per Section 378(4) of Cr.P.C. Permission as prayed was granted. Requisite conversion was permitted to be carried out within a period of four weeks. It was also observed that in the event question of delay in preferring the appeal arises, the fact that applicant had initiated this proceeding may be considered for condoning delay, if any.
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4. Pursuant to the order dated 22nd July 2022 requisite amendment was carried out and revision application was converted into an appeal u/s.378 of Cr.P.C, 1973.
5. This appeal was listed before regular Court on 9 th November 2022. Respondent no.2 was represented by advocate. After hearing both sides the Court observed that appellant had carried out necessary amendment pursuant to the order dated 22 nd July 2022. Leave to convert revision into an appeal is granted and not leave to prefer appeal u/s.378(4) of Cr.P.C. Hence matter be placed before appropriate Bench.
6. In the mean time, respondent no.2 filed Criminal Interim Application No.4130 of 2022. Vide order dated 25 th January 2023 the regular Court recorded submissions respondent no.2 herein, who had urged dismissal of appeal for want of prayer to grant special leave to appeal. The Court granted two weeks time to appellant to file reply to the said application. Subsequently vide order dated 8 th February 2023 it was submitted on behalf of appellant before regular Court that while passing order dated 22nd July 2022 the Court was intending to grant leave to prefer an appeal. However, it was not reflected in the order and appellant is intending to move the same Judge for modification of order dated 22nd June 2022 by way of praecipe. In view of that the matter was adjourned to 28 th February ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 4 of 13 1.Apeal.817.2022.doc 2023. Both parties were heard by me on 28 th February 2023 and the matter is posted today for passing order.
7. Learned advocate for appellant submitted that it is not necessary to file a separate application seeking leave to appeal. The order dated 22nd July 2022 indicate that permission was granted to convert the application into an appeal as per Section 378(4) of Cr.P.C which also includes grant of permission to seek leave to file an appeal. Rule 19 of Chapter-XXVI of Bombay High Court Appellate Side Rules, 1960 permits composite filing of appeal and application for leave to appeal. It is submitted that paragraph 3 of order dated 22nd July 2022 may be modified as "Learned Advocate for the applicant seeks permission to convert this Criminal Revision Application into Application for leave to file Appeal against order of acquittal and appeal, as per Section 378(4) of Cr.P.C. Permission as prayed is granted."
8. In the event Court deems it fit the appellant may be permitted to prefer a separate application seeking leave to prefer appeal to be heard along with appeal preferred by the appellant. It is submitted that in the interest of justice, the order may be modified/clarified by directing that appellant seeks permission to convert Criminal Revision Application into Application for Leave to file Appeal against order of acquittal and Appeal as per Section 378(4) of Cr.P.C, or the ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 5 of 13 1.Apeal.817.2022.doc applicant may be permitted to prefer separate application seeking leave to file appeal against order of acquittal. The object of prescribing procedure is to advance the course of justice. Mr.Apte has relied upon the decision of Division Bench of this Court in the case of Manikrao Vs. Vasantrao Vishwasrao Charjan and others 1; Smt.Rani Kusum Vs. Smt.Kanchan Devi and others 2; The State of Punjab and another Vs. Shamlal Murari and another3.
9. Learned Advocate Mr.S.S.Kumar appearing for respondent no.2 submitted that Rule 19, Chapter-XXVI of Bombay High Court Appellate Side Rules, 1960 cannot be applied to Section 378(4) of Cr.P.C. It only applies to Section 378(3) of Cr.P.C. As per Section 378(4), the aggrieved person is required to file application for special leave to appeal. The order dated 22 nd July 2022 passed by this Court does not speak about the application for leave to appeal. Separate application was required to be filed seeking leave to file an appeal against order of acquittal. Section 378(4) does not refer to composite proceedings for appeal and leave to file appeal. Pursuant to the said order revision applicant had changed the title of revision application and converted it into an appeal. There is no prayer for leave to appeal. The appellant has sought speaking to minutes/modification/clarification only on the basis of praecipe and 1 2015-SCC-Bom-3655 2 (2005)6-SCC-705 3 (1976)1-SCC-719 ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 6 of 13 1.Apeal.817.2022.doc without filing any application in that regard. Order dated 22 nd July 2022 cannot be altered/modified/clarified in the light of Section 362 of Cr.P.C. Pursuant to order dated 22 nd July 2022, this Court has become functus officio. Granting permission of preferring application for leave to file an appeal or a prayer in that regard would amount to giving retrospective effect to the order dated 22 nd July 2022. The modification is sought after a period of about seven months from 22nd July 2022. It is a non curable default. The delay occurred cannot be condoned by modifying said order dated 22 nd July 2022. Section 5 of Limitation Act is not applicable to Section 378 of Cr.P.C. The complainant should not be allowed to fill up lacuna. Reliance is placed on the decision of Hon'ble Supreme Court in the case of Kaushalya Rani Vs. Gopal Singh4.
10. The submission of learned counsel for respondent no.2 that adding words in the order dated 22nd July 2022 granting permission to seek special leave to appeal would have retrospective effect and in view of delay the appeal is not maintainable cannot be accepted. Conversion of revision into appeal was granted on 22 nd July 2022. Amendment was carried out within stipulated time. This Court can modify/correct the order dated 22nd July 2022 in the interest of justice. The submission of learned counsel that Court becomes functus officio is devoid of merits. Section 362 related to bar on 4 1964-AIR-260 ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 7 of 13 1.Apeal.817.2022.doc alteration of judgment or final order disposing of a case. In the light of order dated 22nd July 2022, Rule 19 of Bombay High Court Appellate Side Rules and in the interest of justice, the modification sought by appellant deserves to be granted.
11. In the case of State of Punjab and another Vs. Shamlal Murari and another (supra), Hon'ble Supreme Court has observed that we must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps have to be moderated into wholesome directions to be complied within time or in extended time.
12. In the case of Smt.Rani Kusum Vs. Smt.Kanchan Devi and others (supra), Hon'ble Supreme Court has observed that processual law so dominates in certain systems as to overpower substantive ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 8 of 13 1.Apeal.817.2022.doc rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in the judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Processual law is not to be tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
13. In Manikrao Vs Vasantrao Vishwasrao Charjan and others (supra), it is noted that Rules 19 and 20 of Chapter-XXVI of Bombay High Court Appellate Side Rules, 1960 deal with appeals against acquittal. Rule 19 of Chapter-XXVI provides for filing of composite petition seeking leave and giving grounds of appeal. If the leave is ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 9 of 13 1.Apeal.817.2022.doc granted, the same memo is registered as appeal. The appellant is obliged to pay Court fee on his memo of appeal at that stage. Next provision is the procedure to be followed by the office, if the appeal is admitted. Thus, Appellate Side Rules themselves contemplate different stages for grant of leave, of registration of appeal and stage of its admission for final hearing. Procedure stipulated in Rule 20 i.e. notice to District Magistrate and obligation of later to inform the High Court whether accused is in jail and in what jail, starts only after such an appeal is admitted.
14. In the case of Kaushalya Rani Vs. Gopal Singh (supra), the question for determination was whether provisions of Section 5 of Limitation Act applies to an application for leave to appeal from an order of acquittal under sub-section 417 of Cr.P.C (old Code). The objection raised in the said proceeding before High Court was that appeal was filed long after the period of prescribed by sub-section 4 of Section 417 of the Code. It was held before High Court bar of time prescribed by sub-section 4 of Section 417 was a specific law within the meaning of Section 29(2) of Limitation Act and that Section 5 of Limitation Act would not be available to appellant for condoning admitted delay in filing application for special leave. The Supreme Court confirmed the decision of High Court. This decision cannot be applied in the present case.
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15. Vide order dated 22nd July 2022 this Court took cognizance of the fact that revision applicant/complainant is aggrieved by order of acquittal and observed that appeal u/s.378(4) of Cr.P.C is maintainable against order of acquittal. The revision application was permitted to be converted into an appeal as per Section 378(4) of Cr.P.C. It is true that in the order dated 22 nd July 2022 it is not specifically stated that revision applicant was permitted to prefer application seeking leave to file appeal u/s.378(4) of Cr.P.C. According to me, the order dated 22 nd July 2022 allows applicant to challenge judgment of acquittal in accordance with Section 378(4) of Cr.P.C by converting it into an appeal. Seeking leave is implicit in the said order although it is not specifically mentioned in the said order. There is no ground for dismissal of appeal on the basis of submission that while passing order dated 22nd July 2022 this Court had not permitted the appellant to seek leave to appeal. The decision relied upon by learned advocate for respondent no.2 is not applicable in the present case. To meet the ends of justice, the litigant cannot be thwarted from challenging the impugned orders on hyper-technical grounds. As observed by Hon'ble Supreme Court in the decisions referred hereinabove, the processual law is not to be tyrant but a servant, not an obstruction but an aid to justice. Courts are to do justice and not to regulate the end product on technicalities. ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 :::
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16. Learned counsel for respondent no.2 has vehemently submitted that Rule 19 of Bombay High Court Appellate Side Rules is applicable to Section 378(3) and not to Section 378(4) of Cr.P.C. It is pertinent to note that although Rule 19 of Chapter XXVI of Bombay High Court Appellate Side Rules in clause-(i) refers to the fact that every application for leave u/s.378(3) should be a composite application giving necessary facts and circumstances of the case along with grounds which may be urged in the appeal with a prayer to entertain the appeal, the title of said rule mentions that it relates to procedure regarding appeals against acquittals by private parties. This Court in the case of Satesh H. Chandiramani Vs. Sadashiv Namdeo Kharabi and another5, has dealt with interpretation of Rule 19 of Chapter XXVI of Bombay High Court Appellate Side Rules. It is observed that in all applications both under sub sections 3 and 4 of Section 378 of Cr.P.C, 1973, the Public Prosecutor, the Advocates and parties have been filing an application for leave or special leave, as the case may be, along with a separate memorandum of appeal. It will be necessary to refer to Rule 19 of Chapter XXVI of Bombay High Court Appellate Side Rules, 1960. Reference was made to the said Rule and in paragraph 3 of the said order it was observed as follows :
5 Criminal Application No.1201/2007 with Criminal Application No.1200/2007, decided on 10-
2-2009 ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 12 of 13 1.Apeal.817.2022.doc "3. On plain reading of the said rule, the requirement is that an application for leave shall be a composite application giving necessary facts and circumstances of the case along with grounds which may be urged in the appeal with a prayer to entertain the appeal. The rule requires that typed copies of the judgment or judgments should be annexed to such application. The sub-rule 2 of Rule 19 provides that if leave to appeal is granted, the composite application shall be entered in the register of appeals and numbered as an appeal. Therefore, along with the applications under sub-section 3 and sub-section 4 of Section 378 there is no requirement of filing a separate memorandum of appeal. Though the Rule 19 refers to leave under sub section (3) of section 378 of the said Code, from the title of the rule it is obvious that the said rule also applies to applications under sub section (4) of section 378 of the said Code. In such cases, a composite application as provided in the Rules has to be filed. The Registrar (Judicial-I) will issue necessary directions to the registry. If a separate appeal compilation is filed it unnecessarily increases the paper work of the office. Hence, the same should be avoided. A copy of this order shall be forwarded to Registrar (Judicial) of the benches at Nagpur and Aurangabad. A copy of this order shall be also forwarded to the Secretary of the Advocates' Association of Western India."
17. The appellant has filed a praecipe for modification of order dated 22nd July 2022. Although the order is very clear but on account of objections raised by the respondents and in the light of order dated 9th November 20922 passed by regular Court and by way of abundant caution, the order dated 22 nd July 2022 is modified to mean that in paragraph 3 it may be corrected as " learned Advocate for the applicant seeks permission to convert this Criminal Revision ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 ::: 13 of 13 1.Apeal.817.2022.doc Application into application for Leave to file an appeal against order of acquittal and appeal as per Section 378(4) of Cr.P.C. Permission as prayed is granted". Requisite corrections may be carried by replacing paragraph no.3 of order dated 22nd July 2022.
18. Hence, for reasons stated above, requisite corrections be carried out in the order dated 22nd July 2022 in paragraph 3 of order dated 22nd July 2022 and corrected order be uploaded on website of Bombay High Court.
19. Praecipe dated 16th February 2023 stands disposed off.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 15/03/2023 ::: Downloaded on - 09/06/2023 22:05:04 :::