Madhya Pradesh High Court
State Of Madhya Pradesh vs Bhura Alias Kamal And Ors. on 6 September, 1996
Equivalent citations: 1997CRILJ2815, 1997(2)MPLJ98
ORDER D.P.S. Chauhan, J.
1. The State of Madhya Pradesh on 19th January, 1996, filed the present appeal against acquittal together with prayer for leave to appear without enclosing the certified copy of the judgment passed in S.T No. 766/94 by the 4th Additional Sessions Judge, Jabalpur acquitting accused persons, viz. Bhura for the offence Under Section 302, Indian Penal Code, Dinesh for the offence Under Section 302/34, Indian Penal Code as well as accused Panda and Gudda for the offence Under Section 201, Indian Penal Code.
On 31st January, 1996 and 1st February, 19% it was posted before the Additional Registrar (Judicial). The application was posted being defective before Additional Registrar (J) on 31st January and 1st February, 1996 but non-appearance of the learned counsel before him led to the posting of the matter before the Court for orders. This Court thereon, on 2-9-1996 passed the following order:
"Learned State Counsel, Shri Dilip Naik, wants to study the matter as to the effect of non-filing of the certified copy of the judgment appealed against together with the appeal against acquittal also containing prayer for leave.
As prayed, let the matter be posted on 4-9-1996."
The case was posted as directed but was passed over on the prayer of the learned State counsel.
2. Heard the learned State counsel Shri Dilip Naik and Shri M. S. Chouhan, appointed as amicus curiae to assist the Court.
3. The question for consideration as has arisen is :
"Whether the State Government Under Section 378(3) of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred to as 'Code') can file an application together with the prayer for leave to appeal against an order of acquittal passed in a case not instituted on a complaint sans certified copy of the judgment sought to be appealed against?"
For the purpose of consideration of the question it is not necessary to dilate on the merit for the grant of refusal of leave to appeal.
It is settled position of law that for filing appeal against the order of acquittal it is not necessary to file separate application for leave to appeal as the same document i.e. memorandum can contain both the prayers, in view of the decision of this Court in M.Cr.C. No. 4132/95, The State of M.P. v. Chandrabhan, decided on 1-8-1996.
4. The controversy of the nature practically is no more res integra in view of the decision of the Supreme Court in State of U.P. v. C. Tobit, AIR 1958 SC 414 except that the decision was rendered under the Code of Criminal Procedure, 1898 (for brevity hereinafter referred to as the 'Old Code') and certain extra submissions which have been advanced by the learned State counsel. In support of the submission that the word "copy" has, as used in section 382 of the Code, got a different meaning than that of certified authenticated copy and for the purpose of appeal together with prayer for leave to appeal, the plain copy though not even authenticated is sufficient to satisfy the provision of section 382 of the Code.
The case State of U. P. v. C. Tobit (supra) reached Supreme Court against the decision of the Allahabad High Court where before the question developed before a Division Bench comprising of the then the Hon'ble Shri M. C. Desai and Hon'ble Shri N. U. Beg, JJ. and there being difference of opinion, the question as to whether the filing of a plain copy of the judgment appealed from was a sufficient compliance of law within the meaning of the requirement of section 419 of the old Code but the difference of opinion led to reference to the 3rd Hon'ble Judge Raghubar Dayal, J., who concurred with the view expressed by Hon'ble N. U. Beg, J. holding that the word 'copy' in section 419 of the Old Code meant a certified copy. However, the matter did not get rest at that stage as it was taken to the Supreme Court by the State of U.P. after obtaining certificate of fitness for appeal to Supreme Court.
5. Section 419 of the Old Code provided for a petition of appeal of which corresponding provision under the Code is section 382 with the difference that the following portion contained in section 419 of the Old Code was omitted by the Legislature while enacting section 382 :
"and, in cases tried by a jury, a copy of the heads of the charge recorded Under Section 367."
Section 382 of the Code under which present appeal was filed, reads as :
"Petition of appeal - Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the Judgment or order appealed against."
This provision is the sheet-anchor of controversy involved in the present case as the words used are "such petition shall be accompanied by a copy of the judgment or order appealed against."
Learned State counsel laid emphasis on the word "copy" used in section 382 of the Code for consideration of question whether section 382 of the Code warrants for accompaniment of the petition of appeal by a certified copy of the judgment or order appealed from. At the very face of the provision, it is apparent that a copy of the judgment need be filed with the petition of appeal, but copy could be of variety of nature and the question is not as simple as learned State counsel considers.
Section 378 of the Code which is the provision providing for appeal in case of acquittal at the behest of State against the decision in case instituted otherwise than on a complaint, but speaks nothing about the copy of the judgment sought to be appealed against. No doubt, appeal Under Section 378 of the Code is not as of right but is dependent upon grant of leave by the High Court. If it is a decision in a case not instituted upon a complaint, then provision is for obtaining leave to appeal from the High Court and if it is a decision given in a case filed on a complaint then the provision is for obtaining special leave to appeal against order of acquittal and for special leave and as well as for appeal, it itself has provided different period of limitation and there has to be separate application for special leave.
Since the word 'copy' is not defined in the Code or in the Indian Penal Code or even in the General Clauses Act (Central) and as such, reference to the dictionaries becomes essential to search for and select a particular meaning out of diverse meanings of the word "copy" capable of according to lexicographers.
6. Thus, with a view to find out the meaning of word 'copy' first we advert to take assistance from the dictionaries. In Black's Law Dictionary, Fourth Edition, the word 'copy' is defined as :
"The transcript or double of an original writing"
and in Judicial Dictionary by Alyear's Eleventh Edition, the word 'copy' is defined as :
"A transcript of an original document."
There, thus, could be no doubt that the ordinary dictionary meaning of the word "copy" is a reproduction or transcription of an original writing.
Learned State counsel submitted that the dictionary cannot be taken aid for finding out the meaning of the word "copy" as dictionaries are not dictators of statutory construction. Krishna Iyer, J. in State Bank v. N. S. Money, AIR 1976 SC 1111 (Para 8, at p. 1114) while propounding the said principle stated that dictionaries are pot dictators of statutory - construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Here there is no definition clause defining the word "copy" and in such a circumstance reference to dictionary is imperative. Section does not, in terms, require a certified copy, it is urged on behalf of the appellant that the word "copy" with reference to a document has only one ordinary meaning, namely, a plain copy and the filing of a plain copy along with petition of appeal is sufficient compliance with the requirements of provisions of section 382 of the Code. This argument at its face looks simple, but it is not so.
A copy may be (1) a plain copy i.e. an unofficial carbon and photo or separately typed copy issuance, not provided by law; (2) an official copy i.e. copy authenticated one issuance provided by law; (3) Certified copy issuance provided by law under procedure provided therefor. If a certified copy of the judgment is annexed to the petition of appeal, there could be no question of objection regarding non-compliance of requirement of section 382, for a certified copy is nonetheless a "copy" and in such a case, question of construction does not arise as to whether the word "copy" used in section 382 refers to a plain copy or to a certified copy or covers both category of copies etc.
7. As noted in the case State of U. P. v. C. Tobit (supra) from Maxwell's Interpretation of Statute (10th Edn. P. 52) that the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, not even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained."
Apart from this, Denning, L.J. said :
"When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement written words so as to give 'force and life' to the intention of the legislature. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases." The observation was received with approval by the Supreme Court.
Hon. Beg. C.J., said that the situation called for "some judicial heroics to cope with the difficulties raised" in the case of Bangalore Water Supply v. R. Rajappa, AIR 1978 SC 548. The following passage is from the Lord Dennings, LJ.'s Judgment in the case of Magor & St. Mallong R.D.C, v. Newport Corporation, 1951 2All.ER 839 :
"The duty of the Court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited."
Mere the question is giving of the meaning to a word "copy" and not to go on voyage of discovery outside the arena. A word is not a crystal transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances shown in the context the words by themselves are "slippery customers". Therefore, in determining the meaning of any word in a statute, question to be asked is - "What is the natural or ordinary meaning of that word in its context in the Statute."
8. Section 353 of the Code deals with the judgment and requirement is that the judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer and in the language of the Court and Sub-section (2) provides that where the judgment is delivered under Clause (c) of Sub-section (1), the presiding officer shall cause it to be taken down in shorthand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. Sub-section (4) provides that where the judgment is pronounced in the manner specified in Clause (c) of Sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties of their pleaders free of cost. Here the word "copy" is used and after pronouncement of the judgment, the same or the copy thereof to be made available for perusal of the parties or their pleaders. Here it provides only for perusal not for providing and it is so under the authority of law. So the meaning of the word "copy" here is exact copy of the judgment which form the part of the record and can be made available for perusal only and the same remains in the custody of the person who is incharge of a record.
Section 363(1) of the Code says that when the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost and there is proviso under Sub-section (2) which says that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applied for the same. The Court in such a case shall inform the accused of the period within which, if he wishes to appeal, his appeal should be preferred. Sub-section (6) also provides that the High Court may, by rules, provide for the grant of copies of any judgment or order of a criminal Court to any person who is not affected by a judgment or order, on payment, by such person, of such fees and subject to such conditions as the High Court may, by such rules, provide. Here the appeal is not by a stranger. Sub-section (2) provides for delivery of a certified copy of the judgment on an application being made for the purpose by the accused. So far as the right of the accused is concerned, he is under a disability as his freedom is curtailed. If the accused is sentenced to imprisonment at that time it is necessary to supply him a copy of the judgment immediately on pronouncement of the judgment so to enable him, in case he chooses to do so, for filing the appeal.
The position is not so in the case of appeal against the order of acquittal by the State Government as the State Government is under no disability and under the law the State Government is not entitled for a copy of the judgment free of cost. The words used in Sub-section (1) of section 363 of the Code are that a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost. The word "copy" itself indicates copy means an authenticated copy and in the sense it has got legislative purpose behind it, that is of providing for availment the right to the accused person who is under detention and his right is preserved for filing appeal from prison.
Therefore, if the State Government desires to file an appeal against the order of acquittal Under Section 378(3) of the Code, the State will have to procure a copy of the judgment or order i.e. certified as there is no other official mode for providing copy of the judgment and order to it so to enable it to file appeal and thereby to comply with the requirement of section 382 of the Code. According to section 74 of the Indian Evidence Act a judgment, being the act or record of the act of a judicial officer, would be included in the category of public documents. Under Section 363 of the Code if a person affected by a judgment desires to have its copy he has the right, on applying for such copy, to be furnished therewith. The old provision Under Section 598 of the Old Code provided that the copy of the finding and sentence should be given to the accused "as soon as may be after the delivery of the judgment." A person desirous of such a copy has to apply for it to the public officer having the custody of it and, Under Section 76 of the Indian Evidence Act, such public officer is bound to give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of such copy that it is a true copy of such document, that is to say, to supply to the applicant what is known as a certified copy. Therefore, whether it is the accused person who applies for a copy Under Section 363 of the Code or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy and as such it is reasonably held that it is certified copy so obtained that must be filed.
The copy may be of three kinds :
(i) Copy obtained privately
(ii) Authenticated copy
(iii) Certified copy.
The copy which is obtained privately under the law has no relevance. Authenticated copy is a copy which is given to the accused free of cost and it has got value and that, in essence, is the copy duly authenticated and the accused can file appeal on the basis of it. Certified copy is the copy which is made available on application being made to the concerned authority and it required certain formalities and also contains a certificate that when the copy was applied for, when the same was got ready for delivery and when it was actually delivered. It is for the purpose that in case limitation is expiring then the person may have aid of section 12 of the Limitation Act.
It may also be noticed that the Parliament while enacting the code was having knowledge of the decision of Supreme Court on section 419 and if it had its different intention then the interpretation given by Supreme Court in the case State of U.P. v. C. Tobit (supra), then it could have defined the word "copy" instead maintaining same phraseology.
Taking all the relevant facts into consideration, namely, that a "copy" of the judgment has to be filed along with the petition of the appeal Under Section 382 of the Code to be copy of the judgment which the accused gets free of cost Under Section 366 read with section 76 of the Indian Evidence Act and which copy the State could obtain on an application made by it Under Section 76 of the Indian Evidence Act could be the certified copy. Thus, the copy to be filed with the petition of appeal against acquittal must be the certified copy and not the plain copy which is not obtained by adopting legal procedure.
9. Section 382 requires a copy of the judgment or order appealed against to be filed not without some purpose. That purpose becomes clear when we pass on to section 384 of the Code. This provision enjoins upon the Court that on receiving the petition of appeal and a copy of the judgment or order appealed from Under Section 382, to examine the same and after examining, if it finds that there is no sufficient ground for interfering to dismiss the appeal summarily or when the court does not dismiss the appeal summarily, then, Under Section 385 to cause notice to be given to the appellant or his pleader etc. The act of summarily rejecting the appeal or admitting it and issuing notice is necessarily a judicial act and obviously it must be founded on proper materials. The authenticity or correctness of the copy of a judgment is also essential in order to enable the appellate Court to make proper order either interlocutory or summary and final which may have serious consequences. In the case of an appeal against an order of acquittal, a leave needs to be obtained which is not as of right. Leave could be granted and also could be refused but it could be done if authenticated copy of the judgment appealed against is before the Court and what is authenticated is the certified copy.
10. Thus, it is clear that the copy means authenticated copy and not the plain copy obtained privately otherwise than legal means adopting legal procedure as the same has no significance under the law. Attention of the Court was also brought to the provision of section 365 of the Code which states that in cases tried by the Court of Session or a Chief Judicial Magistrate the Court or such Magistrate, as the case may be, shall forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction the trial was held. This section does not come to the aid of the State. It does not speak for communication of the copy of the judgment and apart from it the official communication of copy as required by section 365 is the authenticated copy. In the proviso to Sub-section (2) of section 363 of the Code, the word "certified copy" is used as the matter pertains to High Court where is one mode of issuance of certified copy. Section 363 has used the word "copy" and certified copy given free of cost to the accused is the authenticated copy issued as per the direction of statute and the certified copy is also issued as per direction of statue. Both such category of copies come under the definition of certified copy, meaning authentically issued as per statutory directions.
11. The appeal against acquittal by the State or even regular appeal is not appeal against the finding or sentence, but is the appeal, which under the law has to state reasons, on the basis of its merit regarding the material on the record i.e. evidence and that evidence has to be challenged. The finding is a consequential part of the decision arrived on the basis of evidence. It need be mentioned that in the present case no such copy has been filed.
12. Learned State counsel also invited the attention of the Court to the provisions of the Code of Civil Procedure. Order 41, Rule 1 of the Code of Civil Procedure says that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from (unless the appellate Court dispenses therewith) of the judgment on which it is founded. This provision also does not come to the aid of the learned State counsel though it uses the words "copy of the decree".
Section 2 of the Code which is the definition clause, defines "decree" but does not define "copy". Meaning of the copy has to be given same as has been given in the present case. The power of dispensation of the Civil Court is same as is with the Criminal Court.
13. No other submission was advanced except that this Court has got the power Under Section 382 of the Code to direct that the appeal may be filed without being accompanied by a copy of the judgment or order appealed against. This procedure is not for permitting the State Government to act in leisurely fashion. It is a provision covering some extraordinary circumstances of urgent nature so to dispense with the filing of the copy of the judgment at the time of presentation of the appeal and the appeal could be presented with the leave of the Court for dispensation and there could be other circumstances as well such as, if a copy of the judgment is filed by one of the accused persons, then, the other accused persons have got a right to approach this Court seeking permission for dispensing with the filing of the copy of the same as the same has already been filed in the appeal of the co-accused, which under the law has to be heard together.
14. In view of the above, we find no merit in the submissions advanced by the learned State counsel. In the alternative learned State counsel made a prayer that he may be allowed time to file certified copy of the judgment. It is a clear case of negligence and of not being vigilant regarding the provisions of law. It is not a case where such prayer to be considered. The aspect of the matter has already been considered and dealt with earlier. Dispensation of filing of the certified copy has to be sought at the time of filing of the appeal.
In view of the above, the appeal together with leave is dismissed as incompetent. However it would be open for the State to file competent appeal, if it chooses to do so along with an application for condonation of delay as may be advised and permissible under law.