Punjab-Haryana High Court
Punjab State Civil Supplies ... vs Karamjit Singh And Others on 28 March, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: March 28, 2011
Crl. Rev. No.2774 of 2008
Punjab State Civil Supplies Corporation Ltd. ...Petitioner
Versus
Karamjit Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE ARVIND KUMAR
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Charanjit Singh Bakhshi, Advocate,
for the petitioner.
Mr. Pardeep Kumar Bajaj, Advocate,
for the respondent Nos.1 & 2.
HEMANT GUPTA, J.
The present criminal revision petition has been placed before this Bench to deciding the following questions:
(i) As to whether the revision petition pending against the acquittal order prior to the amendment in Section 372 of the Code of Criminal Procedure can be directed to be converted into the appeal and can be transferred to the learned Sessions Judge.
(ii) As to whether the proviso of Section 372 of the Code of Criminal Procedure as added by the Amendment 2009 shall be prospective or retrospective.
Crl. Rev. No.2774 of 2008 2Such questions arise consequent to insertion of proviso to Section 372 of the Code of Criminal Procedure (for short 'the Code') vide Central Act No.5 of 2009 notified on 31.12.2009. Vide the said insertion, a 'victim' as defined in Section 2 (wa) has been given right to file an appeal against an order of acquittal. Prior to the said insertion, there was no right of appeal to the victim or the complainant. The right of appeal against an order of acquittal was reserved only to the State. The complainant aggrieved against an order of acquittal could invoke the revisional jurisdiction of this Court under Sections 397 and 401 of the Code.
In the present case, on the complaint of the petitioner, an FIR for an offence under Section 409 IPC was lodged. However, the learned trial Court recorded a finding that the prosecution has failed to prove its case against the accused beyond any reasonable doubt and consequently, giving benefit of doubt to the accused, passed an order of acquittal. Such order passed by the learned trial Court on 11.10.2004 has been challenged by way of present revision petition filed on 30.10.2008 along-with an application for condonation of delay of 1431 days in filing of revision.
The revision petition came up for hearing before the learned Single Judge of this Court on 01.02.2011. The learned counsel for the petitioner relied upon an order passed by a learned Single Judge on 09.08.2010 in Criminal Revision No.2491 of 2008 titled 'Punjab State Civil Supplies Corporation Ltd. Vs. The State of Punjab and others'. In the said revision, after condoning delay, the revision was converted into appeal and remitted to the Court of Sessions for decision on merits. The learned Single Judge in its order dated 01.02.2011 had reservation Crl. Rev. No.2774 of 2008 3 about the said view and, therefore, referred the above-mentioned questions for decision before this Court.
Section 372 after insertion of proviso vide Act No.5 of 2009 reads as under:
"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."
Before adverting to the arguments of the learned counsel for the parties, it would be advantageous to examine the nature and scope of right of appeal. The right of appeal is statutory right to be exercised in terms of the statute regulating and controlling such right.
In M/s Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and others AIR 1953 SC 221, it was held to the following effect:
"3. That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of the commencement of the proceedings.....Crl. Rev. No.2774 of 2008 4
4. The principle of the above decision was applied by Jenkins, C.J. in Nanabin Aba v. Sheku bin Andu (1908) I.L.R. 32 and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner, Delhi (1927) L.R. 54. A Full Bench of the Lahore High Court adopted it in Kirpa Singh v. Rasalldar Ajaipal Singh AIR 1928 Lah. 627. It was there regarded as settled that the right of appeal was not a mere matter of procedure but was a vested right which inhered in a party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication.
xxx xxx xxx
8. The above decisions quite firmly establish and our decisions in Janardan Reddy v. State (1950) SCR 941 and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd. (1952) SCJ 564 uphold the principle that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins, C.J. in Nana bin Aba v. Shaik bin Andu (supra) to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication."
In Hari Singh Vs. Kanhaiya Lal (1999) 7 SCC 288, the Hon'ble Supreme Court held to the following effect:
"7. .....No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers it and it is to the extent it is conferred. Thus the area to challenge is also hedged by the legislature hence challenge to the impugned order has to be confined within such limitation.
xxx xxx xxx Crl. Rev. No.2774 of 2008 5
9. .....Creation of powers or limiting such powers in the appellate authorities is always a decision based on public policy expressed in the maxim interest reipublicae ut sit finis litium. This policy brings to finality some issues or a litigation at some point of time. If no appeal is provided, the original order becomes final. Thus it is open for the legislature to bring finality to the adjudication on question of facts up to the stage of first appeal and limit the second appeal to question of laws or to the substantial question of law (sic or) to such other limitation which the legislature deems fit and proper."
While considering the amendment in Section 115 of the Code of Civil Procedure in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and others (2003) 6 SCC 659, the Hon'ble Supreme Court observed as under:
"13. First aspect that has to be considered is the respective scope of appeal and revision. It is fairly a well-settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application under Section 115. Though great emphasis was laid on certain observations in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat (1969) 2 SCC 74, to contend that appeal and revision stand on the same pedestal, it is difficult to accept the proposition. The observations in the said case are being read out of context. What was held in that case related to the exercise of power of a higher court, and in that context the nature of consideration in appeal and revision was referred to. It was never held in that case that appeal is equated to a revision.
xxx xxx xxx
16. An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal. As was observed in K. Kapen Chako v. Provident Investment Co. (P) Ltd (1977) 1 SCC 593, only in cases where vested rights are involved, a legislation has to be interpreted to mean as one affecting such right to be Crl. Rev. No.2774 of 2008 6 prospectively operative. The right of appeal is only by statute. It is (sic not a) necessary part of the procedure in an action, but "the right of entering a superior court and invoking its aid and interposition to redress the error of the court below. It seems absurd to denominate this paramount right part of the practice of the inferior tribunal". (Per Lord Westbury, See: Attorney General v. Sillem 33 LJ Ex 209, ER p.1209.) The appeal, strictly so called, is "one in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it" (Per Lord Devuil Ponnammal v. Arumogam 1905 AC 383. The right of appeal, where it exists, is a matter of substance and not of procedure (Colonial Sugar Refining Co. v. Irving 1905 AC 369).
17. Right of appeal is statutory. Right of appeal inhered in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so....."
Recently, in Competition Commission of India Vs. Steel Authority of India Limited and another (2010) 10 SCC 744, it was held to the following effect:
"50. The principle of "appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure" is now well settled. The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases. It being a creation of a statute, legislature has to decide whether the right to appeal should be unconditional or conditional. Such law does not violate Article 14 of the Constitution. An appeal to be maintainable must have its genesis in the authority of law. Reference may be made to M. Ramnarain (P) Ltd. v. State Trading Corpn. of India Ltd. (1983) 3 SCC 75 and Gujarat Agro Industries Co. Ltd. v.
Municipal Corpn. of the City of Ahmedabad (1999) 4 SCC 469.
51. Right of appeal is neither a natural nor an inherent right vested in a party. It is a substantive statutory right regulated by Crl. Rev. No.2774 of 2008 7 the statute creating it. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 and Kashmir Singh v. Harnam Singh (2008) 12 SCC 796 may be referred to on this point. Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party.
52. A statute is stated to be the edict of legislature. It expresses the will of legislature and the function of the court is to interpret the document according to the intent of those who made it. It is a settled rule of construction of statute that the provisions should be interpreted by applying plain rule of construction. The courts normally would not imply anything which is inconsistent with the words expressly used by the statute. In other words, the court would keep in mind that its function is jus dicere, not jus dare. The right of appeal being creation of the statute and being a statutory right does not invite unnecessarily liberal or strict construction. The best norm would be to give literal construction keeping the legislative intent in mind." In view of the aforesaid judgments, the right of appeal is not inherent or natural right. Right of appeal has to be specifically conferred and is regulated by statute alone. The provisions of appeal and the powers of the Appellate Court have to be conferred by Statute and cannot be created by Courts by way of judicial pronouncements. It is also well-settled that right of appeal is a substantive and vested right. In respect of substantive and vested rights, such rights operate prospectively. It is only in the matter of procedure, the amendments operate retrospectively.
In Garikapatti Veeraya Vs. N. Subbiah Choudhury AIR 1957 SC 540, the Hon'ble Supreme Court has laid down the following five principles:
Crl. Rev. No.2774 of 2008 8
"(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
In the aforesaid case, the right of appeal was modified subsequent to the filing of the suit. In the present case, the right of appeal has been conferred for the first time w.e.f. 31.12.2009. It is not a case, the forum where such appeal can be lodged has been altered, as the forum of appeal and also the limitation to file such appeal has been held to matters pertaining to procedural laws.
The judgment in Moti Ram Vs. Suraj Bhan and others AIR 1960 SC 655, is somewhat similar to the facts of the present case,. In the said case, after the filing of a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, a remedy of revision was provided by inserting Section 15(5) of the Act and also restricting the scope of eviction granted under Section 13(3)(a)(iii). In the said case, the eviction petition was dismissed by the Rent Controller and by Crl. Rev. No.2774 of 2008 9 the Appellate Authority, but revision was accepted by the High Court. An argument was raised that the rights of the parties have to be examined as it existed on the date of initiation of the lis and, therefore, as per the provision then existing, the decision of the Appellate Authority is final and that revision before the High Court is not maintainable. Subsequent provision of revision cannot be availed by landlord. In these facts, the Court held to the following effect:
"6. Let us first deal with the point about the competence of the revisional application. The appellant's case is that under section 15, sub-section (4) as it stood at the time when the present proceedings commenced, the decision of the appellate authority was final, and it could not be questioned in suit or other proceedings by way of appeal or revision. In other words, a revisional application against the appellate decision was expressly excluded. If at the time when the present proceedings commenced the decision of the appellate authority was final in the eyes of law the subsequent amendment by which a revisional application has been allowed cannot affect that position. It was the appellant's right as a party to the proceedings to claim the benefit of the finality of the appellant order so far as the present proceedings are concerned. Put in a different form the contention is that the provision for a revisional application which has now been made by the amending Act cannot retrospectively affect the proceedings which were pending at the time when the amending Act was passed.
7. .....According to this decision then the finality prescribed by Section 5-B came into operation after the order in question was made and not before. "Even if there be in law any such right at all", observed Jagannadhadas J., who delivered the unanimous opinion of the Court, "it can in no sense be a vested or accrued right. It does not accrue until the determination is in fact made when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner (1927) I.L.R. 9. We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v.Crl. Rev. No.2774 of 2008 10
Irving (1905) A.C. 369 cannot be invoked in support of the case of the kind we are dealing with". Having regard to this decision it is impossible to accede to Mr Bindra's argument that the finality of the appellate decision could be invoked by the appellant before the said appellate decision was actually recorded. If no finality could be claimed at an earlier stage it is clear that at the time when the Appellate Authority decided the matter the amending section had come into force and when the appellate order was actually passed it could not claim the finality under the earlier provision. (...emphasis supplied) We may incidentally point out that the said principle laid down in the case of Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi (1955) 2 S.C.R. 1117, has been cited by this Court in Garikapatti Veeraya v. N. Subbiah Choudhury (1957) S.C.R. 488, and it has been observed that the question which was left open by the court on the earlier occasion fell to be considered in the case of Garikapatti Veeraya and was in fact considered and decided. Mr Achru Ram, for the respondent, has suggested that the very passage in the case of Indira Sohanlal which enunciated the principle appears to have been cited with approval. However that may be, we are bound by the decision of this Court in the case of Indira Sohanlal and that decision is clearly against the contention of the appellant that the amended provision in respect of revisional jurisdiction of the High Court was inapplicable."
In the present case, instead of revisional jurisdiction provided for the first time after the filing of eviction petition as in the above judgment, the right of appeal has been provided during the pendency of trial of an offence. Keeping in view the aforesaid judgment, the right of appeal would arise only when the trial Court recorded its decision acquitting the accused. Since, the decision by the learned trial Court has been recorded prior to 31.12.2009, such order could be challenged by the petitioner only by way of a revision and not by an appeal as on the date of decision, there was no right of appeal contemplated by the Code.
Crl. Rev. No.2774 of 2008 11
In view of the above, in respect of first question, it is held that the revision filed prior to 31.12.2009 cannot be converted into an appeal.
In respect of second question, it is held that an appeal would be maintainable against a judgment of acquittal passed by the learned trial Court on or after 31.12.2009.
As the questions of law having been answered, the present revision petition is ordered to be posted before the Bench as per roster.
(HEMANT GUPTA)
JUDGE
28.03.2011 (ARVIND KUMAR)
Vimal JUDGE