Bombay High Court
Good Value Marketing Company vs Montex Corporation & Another on 30 January, 2009
Author: A.S.Oka
Bench: A.S.Oka
((-1-))
mst
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1170 OF 2008
IN
CRIMINAL APPLICATION NO.2081 OF 2008
IN
CRIMINAL APPEAL NO.821 OF 2008
WITH
CRIMINAL APPLICATION NO.1171 OF 2008
IN
CRIMINAL APPLICATION NO.2082 OF 2008
IN
CRIMINAL APPEAL NO.824 OF 2008
WITH
CRIMINAL APPLICATION NO.1172 OF 2008
ig IN
CRIMINAL APPLICATION NO.2083 OF 2008
IN
CRIMINAL APPEAL NO.825 OF 2008
Good Value Marketing Company
Limited and another Applicants
versus
Montex Corporation & another Respondents
Mr.Subhash Jha i/by M/s.Law Global for the
applicants.
Mr.N.K.Thakore with Prakash Naik for respondent
no.1.
Mr.J.P.Yagnik, APP for the State in Application
No.1170 of 2008.
Miss A.J.Javeri, APP for the State in
Application No.1171 of 2008.
Mr.Y.S.Shinde, APP for the State in
Application No.1172 of 2008.
CORAM : A.S.OKA, J.
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((-2-))
DATE : 30th January 2009
JUDGEMENT :
1. The submissions of the learned counsel for the parties have been heard. The facts of these three applications are more or less similar. Hence, for the sake of convenience, I am referring to the facts in Criminal Application No.1170 of 2008. The applicants are the accused in a complaint filed by the first respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The learned Magistrate acquitted the applicants in this application.
The first respondent filed Criminal Application no.2081 of 2008 in this Court invoking sub section 4 of section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The said application was heard on 28th July 2008. This Court granted leave and admitted the appeal.
This Court directed that an action be taken under section 390 of the said Code of 1973.
The prayer in this application is for recall of the said order dated 28th July 2008 and for a direction to place the application for leave ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-3-)) for re-hearing. As the learned Judge who passed the order dated 28th July 2008 is not available at Mumbai, by administrative order dated 26th November 2008, these applications were ordered to be placed before the regular Court.
2. The learned counsel for the applicant submitted that a special leave under sub section 4 of section 378 of the said Code of 1973 cannot be granted without giving an opportunity of being heard to the accused. His submission is that grant of leave results in admission of the appeal against acquittal which is invariably followed by an action under section 390 of the said Code of 1973. He submitted that by grant of leave and admission of an appeal against acquittal, the rights of the accused are vitally affected and, therefore, it was necessary for this Court to have issued a notice to the applicants before granting the leave.
3. He submitted that the Apex Court has repeatedly held that when an authority takes an action by which rights of an individual are affected, the principles of natural justice ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-4-)) will have to be read in the statutory provisions. He submitted that the Apex Court has now held that the principle of natural justice "audi alteram partem" apply even to the administrative orders having the civil consequences. He placed reliance on decisions of the Apex Court in the case of Canara Bank vs. V.K.Awasthy ([2005]6-SCC-321), Rajesh Kumar and others vs. Dy.Cit and others ([2007]2-SCC-181 and the State of Maharashtra and others Vs. Jalgaon Municipal Council and others ([2003]9-SCC-731) on this aspect. He submitted that as the rule of "audi alteram partem" has to be read in the statute under which a quasi judicial authority or an administrative authority passes an order involving civil consequences, surely the said rule will have to be read in sub section 4 of section 378 of the said Code of 1973 while this Court exercises the power of grant of special leave. He submitted that section 378 itself makes a distinction between a leave which is granted in an appeal preferred by the State and a special leave which is required to be granted for preferring an appeal against the acquittal by a complainant in a private complaint.
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4. He invited my attention to the provisions of section 473 of the said Code of 1973 which confers power on the Court to extend the period of limitation. He submitted that the Apex Court in the case of State of Maharashtra vs. Sharadchandra Vinayak Dongre and others ([1995]1-SCC-42) has held that the principles of audi alteram partem will have to be read in the said provision. He also placed reliance on the decision of the Apex Court in the case of Mangilal vs. State of M.P. ([2004]2-SCC-447).
5. Lastly he submitted that this Court could not have passed an order directing an action under section 390 of the said Code of 1973. He submitted that it is not mandatory in every case where special leave or leave has been granted under section 378 of the said Code of 1973 to direct that an action under section 390 of the said Code of 1973 should be initiated.
He submitted that in the case of an appeal against an order of acquittal for offence punishable under section 138 of the Negotiable Instruments Act, 1881, it is not at all necessary to issue a direction for action under section 390 of the said Code of 1973. He submitted that the result of mechanically ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-6-)) passing an order for an action under section 390 of the said Code is that a warrant will be executed against the accused who is already acquitted and in a given case he may be detained though the offence for which he was prosecuted may be a non cognizable and bailable offence. He, therefore, submitted that atleast that part of the direction issued by this Court directing an action under section 390 of the said Code of 1973 be set aside or recalled.
6. The learned ig counsel for the first respondent opposed the prayer by submitting that once a leave is granted and the appeal is admitted, there is no power under the said Code of 1973 vesting in this Court for reviewing or recalling its own order. He submitted that even by exercising the power under section 482 of the said Code, the aforesaid order of this Court granting leave cannot be recalled. He submitted that an appeal against the acquittal is available on law as well as on facts and, therefore, this Court has rightly granted the leave. He submitted that action under section 390 of the said Code has already been completed and the applicants have furnished bail and, therefore, now it is not necessary to interfere ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-7-)) with that part of the order. He fairly stated that the first respondent had not prayed for an action under section 390 of the said Code, however, this Court thought it fit to issue such a direction. He submitted that no interference is called for.
7. I have carefully considered the submissions. The well established legal position is that as far as an admission of the appeal is concerned, it is always a matter between the Appellate Court and the appellant.
A respondent to the appeal has no right of hearing at the stage of admission. It is only when the Appellate Court thinks it fit to issue a notice before admission or a show cause notice calling upon the respondent to show cause as to why the appeal shall not be admitted, the respondent can claim a right of being heard at the stage of admission of the appeal. Under section 378(1) of the said Code a Public Prosecutor can present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. Under the same sub-section it is provided that the State Government may in any case direct the ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-8-)) public prosecutor to present an appeal to the High Court from original or appellate order of acquittal passed by any Court other than the High Court (not being an order passed on an appeal preferred against acquittal to the Court of Sessions) or order of acquittal passed by the Court of Sessions in revision. Sub section 3 provides that an appeal to the High Court under sub section 1 of section 378 shall not be entertained except with the leave of the High Court. Sub section 4 provides that if such an order of acquittal is passed in any case instituted upon a complaint, the complainant is entitled to apply to the High Court for grant of special leave to appeal from the order of acquittal. When a public prosecutor desires to appeal against an order of acquittal, he has to apply for grant of leave and when a complainant in private complaint desires to appeal against an order of acquittal, he has to apply for a special leave. Grant of leave or special leave by this Court may result in admission of the appeal against acquittal. Leave or special leave is granted by this Court after examining the merits of the case. Leave or special leave is granted when a case is made out by the applicant. Section 385 of the said Code ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-9-)) provides that when an appeal against acquittal is not dismissed summarily by this Court, the Court is enjoined to cause notice of the time and place at which such an appeal will be heard to be given to the accused. Clause (a) of section 386 of the said Code provides that in an appeal from order of acquittal, the Appellate Court may reverse such an order and direct that further enquiry be made or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. Thus, from the scheme of the provisions of Chapter-XXIX of the said Code, it appears that after grant of leave or special leave, if an appeal against acquittal is not summarily dismissed, under section 385 of the said Code this Court is enjoined to issue notice of the hearing of the appeal to the accused. As stated earlier, the law is well settled. There is no right of audience available to a respondent at the stage of admission of an appeal and the admission of an appeal is always a matter between the appellant and the Court. An order admitting an appeal against the order of acquittal is not an adverse order against an accused. Grant of leave or special leave precedes the admission ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-10-)) of an appeal. If a respondent has no right of audience at the stage of admission of an appeal against the order of acquittal, it is not possible to say that he has a right of hearing at the stage of grant of leave or special leave. It is, therefore, very difficult to accept the submission of the learned counsel for the applicant that the principles of natural justice or principles of audi alterem partem will have to be read in sub section 3 and sub section 4 of section 378 of the said Code of 1973 so as to give right of hearing to a respondent-accused at the stage of grant of leave or at the stage of admission of an appeal against acquittal.
8. Reliance placed by the learned counsel for the applicants on the decision of the Apex Court in the case of State of Maharashtra vs. Sharadchandra Vinayak Dongre and others (supra) will be of no help to the applicants. The Apex Court was dealing with the power of the Criminal Court under section 473 of the said Code of 1973 to extend the period of limitation or to condone the delay. Right of hearing to the opposite party in such a case has been read in the statute. The reason is that by virtue ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-11-)) of lapse or expiry of period of limitation provided under the said Code of 1973, a right is accrued in favour of the accused and, therefore, before the delay is condoned and/or the period of limitation is extended, the accused is required to be heard. Similarly, the decision of the Apex Court in the Case of Mangilal (supra) will not help the applicant as the question therein was as regards grant of compensation under section 357 of the said Code.
9. In the case of Chandrappa vs. State of Karnataka ([2007]4-SCC-415) the Apex Court held that under the said Code there is no limitation, obstruction or condition on exercise of appellate power and the Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Appellate Court on evidence before it may reach its own conclusion both on law as well as on facts.
The Apex Court, however, held that when it comes to Appellate Court interfering with the order of acquittal in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence available to an ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-12-)) accused is further strengthened by an order of acquittal. The Apex Court has also held that the Appellate Court has to bear in mind that if two reasonable conclusions are possible on the basis of evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court.
10. Thus, the conclusion is that no right of hearing can be read in the said Code in favour of an accused at the stage of grant of leave or special leave under sub section 3 or sub section 4 of section 378 of the said Code of 1973. No right of hearing in favour of an accused can be read into the statute while this Court considers the question of admission of an appeal against acquittal. An accused is entitled to notice only under section 385 of the said Code after this Court comes to the conclusion that the appeal cannot be summarily dismissed by exercising the power under section 384 of the said Code. It is needless to say that this Court always has a discretion of issuing a notice before admission or a show cause notice on application for grant of leave or special leave wherever this Court desires that the accused should be heard. In such a ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-13-)) case naturally the accused will get audience before grant of leave and admission of the appeal. Therefore, the first submission made by the counsel for the applicants will have to be rejected.
11. In the present case it is pointed out that an action under section 390 of the said Code has been already taken and the applicants have already furnished bail bonds. Nevertheless, I am dealing with the legal submissions made by the counsel igappearing for the applicant.
Section 390 of the said Code of 1973 read thus:-
"S.390. Arrest of accused in appeal from acquittal.-
When an appeal is presented under section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail."
12. The section uses the word "may" which indicates that this Court has a discretion either to direct an action under section 390 of the said Code of 1973 or not to direct such an action. A Division Bench of this Court in the ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-14-)) case of A.H.Satranjiwala vs. The State of Maharashtra (LXXIV-Bom.L.R.-742) had an occasion to consider the provisions of Section 427 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the old Code").
The said section reads thus :-
"When an appeal is presented under section 411A, sub-section (2), or section 417, the Court may issue a warrant directing that the accused be arrested and brought before the Court...."
Section section 427 390 of to the old Code the said Code of is similar 1973.
to The Division Bench held that it is the discretion of the High Court to exercise the power under section 427. This Court held that section 427 is not meant for the protection of the accused but it is to ensure that the accused against whom an appeal has been filed may not abscond during pendency of the appeal. This Court further observed that it must be also appreciated that situation is altogether different in the course of the original criminal trial and during the hearing of an appeal because during the trial a Court would be entitled to examine the accused at any stage of evidence and his presence might, therefore, ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-15-)) be required at any stage. Whereas, in an appeal, the hearing of the appeal would normally be proceeded with on the basis of the record. Thus, what has been held is that it is in the discretion of this Court to exercise power under section 427 of the old Code and it is not necessary that in every case in which an appeal against acquittal is admitted that procedure under section 427 of the old Code should be followed. As held by the Division Bench, the object of section 390 of the said Code is to ensure that the accused against whom an appeal has been filed may not abscond during pendency of the appeal. The object is of ensuring the presence of the accused before the Appellate Court. If this is the object of section 390, then it is obvious that the word used "may" in the section cannot be construed as "shall". Therefore, in every case in which an appeal against acquittal is admitted, the action under section 390 will not automatically follow. The action under section 390 has drastic consequences. A warrant is served on the accused who has been already acquitted.
There are instances where bail was either denied to the accused or was belatedly granted.
As a result, the accused who were already ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-16-)) acquitted remained in custody.
13. Therefore, after admission of an appeal against an order of acquittal it is for this Court to exercise the discretion under section
390. The exercise of discretion will depend on the nature of the offence alleged, the gravity of the offence and the conduct of the accused as reflected from the record of the case. Only by way of an illustration a reference can be made where an appeal against acquittal is filed against an order of acquittal of the accused under section 138 of the said Act of 1881. The offence is a bailable offence. In a given case where this Court finds that the accused has a fixed place of residence and that he has regularly attended the Trial Court and has co-operated for trial, it may not necessary to initiate an action under section 390 of the said Code. There are cases where a respondent-accused is represented by an advocate in an appeal against acquittal who after admission of an appeal waives service of notice of appeal. In such a case, it may not be necessary for this Court to pass an order directing an action under section 390 of the said Code. The exercise of discretion will ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-17-)) depend on combination of various factors.
14. There is one more aspect of the matter.
The power of this Court to issue warrant under section 390 of the said Code of 1973 is not confined to a stage when appeal against acquittal is admitted. In a case where this Court finds that the notice is issued under section 385 of the said Code and the accused is evading service of notice, this Court can exercise power under section 390 of the said Code for achieving the object of ensuring that the accused does not abscond. In a given case when an appeal against an order of acquittal is placed for final hearing and the Court finds that the presence of the accused is necessary, even at that stage also this Court can exercise the power under section 390 of the said Code of 1973. Thus, the power under section 390 of the said Code of 1973 can be exercised at any stage during the pendency of an appeal against acquittal.
15. The learned counsel for the applicants submitted that on the basis of action under section 390, there are cases where an accused who is acquitted is put behind the bars as he ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-18-)) is not enlarged on bail. Section 390 contemplates that when action is taken under section 390, the accused can be arrested and brought before this Court or any subordinate Court. The section further provides that the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail. Thus, when pursuant to an action under section 390 of the said Code, an accused is brought before a subordinate Court, the said Court has ample power to enlarge the accused on bail. On plain reading of the section it is obvious that the concerned Court subordinate to this Court need not be under an impression that merely because an order is passed by this Court of issuing warrant, the accused should not be admitted to bail and he should be taken in custody. The said Court has a power to admit the accused to bail. When an accused is brought before a Court subordinate to this Court on the basis of an action under section 390 of the said case, normally the accused should be enlarged on appropriate bail unless there are extraordinary circumstances or unless there is a direction of this Court to that effect. The subordinate Court before which the accused is produced must keep it in ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-19-)) mind that the accused produced before it is already acquitted.
16. At this stage it will be necessary to refer to a decision of Division Bench in the case of Prema Bangar Swamy vs. State of Maharashtra and others (2004-Cri.L.J.-1296). I find that the certain important directions have been given by the Division Bench of this Court on this aspect which are not at all implemented by the registry. The said directions are consistent with ig the object of the section to ensure that the accused does not abscond. In paragraph 25 of the said decision this Court observed that when pursuant to action under section 390 of the said Code, an accused is arrested and brought before the Court subordinate to this Court, it is quite possible that out of lack of adequate knowledge or financial difficulties or various reasons that inspite of an acquittal in his favour an accused may not apply for bail. The Division Bench directed that in all such matters where the accused is produced before the subordinate Court after his arrest, the Judge concerned ought to inform the accused that he has a right to apply for the bail and thereafter it will be ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-20-)) for the accused to make the appropriate application. In the said decision this Court noted the practice constantly followed that after action is ordered under section 390 of the said Code by this Court, the concerned Subordinate Court issues communication to this Court recording as to whether the accused has been granted bail or the same has been refused.
The Division Bench directed that in all such matters it would be desirable that the registry places papers of the concerned appeal before the appropriate ig Court immediately after receiving the communication with a note that after the arrest of the accused he has been taken into custody. The Division Bench noted that in a case where the accused is not enlarged on bail, there will be one more opportunity to see that unnecessary detaining the accused in custody inspite of acquittal by the Trial Court is avoided and the person concerned can be released on a bond. The Division Bench observed that the aforesaid two directions will take care of the situation which had arisen in the case before the Division Bench. The relevant part of the decision of paragraph 25 reads thus :-
::: Downloaded on - 09/06/2013 14:17:31 :::((-21-)) "25. ... ... Now as the Section reads, in an appeal from acquittal when an accused is arrested and brought before the subordinate Court it is for the accused to apply for bail. It is quite possible that out of lack of adequate knowledge or financial difficulties or various reasons that in spite of an acquittal in his favour an accused may not apply for bail. Some such thing appears to have happened in the present case. In our view in all such matters where an accused is produced before the subordinate Court after his rearrest the Judge concerned ought to inform the accused that he has a right to apply for bail. Thereafter it will be for the accused to make the appropriate application.
application
(ii) We are told that the consequence of any such bail application or even non presentation thereof is reported by the Judge concerned to the High Court subsequently. Thus the communication reaches the High Court as to whether the accused has been granted bail or the same has been refused. In our view, once such communication is received from the subordinate Court the Administration of the High Court must find out as to whether the accused has been granted bail or has been denied it and whether he is continued in custody. In all such matters it would be desirable that the High Court Administration places the paper of the concerned appeal before the appropriate Court with a note that after the arrest of the accused subsequent to the admission of the appeal against the acquittal, accused has been taken in custody. On noting this development it will be for the concerned Court thereafter to pass appropriate order. that will be one more opportunity to see to it that unnecessary retaining the accused in custody in spite of acquittal by the trial Court is avoided and the person concerned can be released on a bond."
bond (Emphasis added) ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-22-))
17. It is unfortunate that the Registry of this Court has not implemented the second direction issued by this Court of placing the appeals against acquittal after report is received from the Trial Court as regards the action under section 390 of the Code. Even the first direction issued to the Subordinate Courts to bring it to the notice of the accused of his right to apply for bail is not being implemented.
18. Now coming back to the present case, as stated earlier, the order under section 390 has already been implemented.
19. In the circumstances, no relief can be granted to the applicants in these applications. Therefore, I pass following order:-
(a) The applications are rejected;
(b) The Registrar (Judicial-I) is directed to ensure that second direction issued by this Court in paragraph 25 of the judgement in the case of Prema Bangar Swamy vs. State of Maharashtra ([2004]- Cri.L.J.- 1296) is ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-23-)) implemented;
(c) The Registrar (Judicial-I) will circulate a copy of the said decision of the Division Bench as well as this order to all the Criminal Courts subordinate to this Court to ensure that the said Courts scrupulously comply with the directions issued by the Division Bench of this Court in paragraph 25 of the said decision;
(d) A copy of this order shall be forwarded to the Registrar (Judicial-I) of this Court.
(A.S.OKA, J.) ::: Downloaded on - 09/06/2013 14:17:31 ::: ((-24-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.821 OF 2008 WITH CRIMINAL APPEAL NO.824 OF 2008 WITH CRIMINAL APPEAL NO.825 OF 2008 Good Value Marketing Company Limited and another Appellants versus Montex Corporation & another Respondents Mr.Subhash Jha i/by M/s.Law Global for the appellants.
Mr.N.K.Thakore with Ganesh Bhujbal, Pavan Mali i/by Prakash Naik for respondent no.1.
Mr.J.P.Yagnik, APP for the State in Appeal No.821 of 2008.
Miss A.J.Javeri, APP for the State in Appeal No.824 of 2008.
Mr.Y.S.Shinde, APp for the State in Appeal No.825 of 2008.
CORAM : A.S.OKA, J.
DATE : 30th January 2009
PC :
1. The learned counsel for the appellants
prayed that he be permitted to file private
paper book. Liberty is granted to file private
paper book.
(A.S.OKA, J.)
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((-25-))
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((-26-))
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1170 OF 2008 IN CRIMINAL APPLICATION NO.2081 OF 2008 IN CRIMINAL APPEAL NO.821 OF 2008 WITH CRIMINAL APPLICATION NO.1171 OF 2008 IN CRIMINAL APPLICATION NO.2082 OF 2008 IN CRIMINAL APPEAL NO.824 OF 2008 WITH CRIMINAL APPLICATION NO.1172 OF 2008 IN CRIMINAL APPLICATION NO.2083 OF 2008 IN CRIMINAL APPEAL NO.825 OF 2008 Good Value Marketing Company Limited and another Applicants versus Montex Corporation & another Respondents Mr.Subhash Jha i/by M/s.Law Global for the applicants.
Mr.N.K.Thakore with Prakash Naik for respondent no.1.
Mr.J.P.Yagnik, APP for the State in Application No.1170 of 2008.
Miss A.J.Javeri, APP for the State in Application No.1171 of 2008.
Mr.Y.S.Shinde, APP for the State in Application No.1172 of 2008.
CORAM : A.S.OKA, J.
DATE : 30th January 2009
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((-27-))
JUDGEMENT :
1. For the reasons separately recorded,
following order is passed :-
(a) The applications are rejected;
(b) The Registrar (Judicial-I) is directed to ensure that second direction issued by this Court in paragraph 25 of the judgement in the case of Prema Bangar Swamy vs. State of Maharashtra ([2004]-Cri.L.J.-1296) are implemented;
(c) The Registrar (Judicial-I) will circulate a copy of the said decision of the Division Bench as well as this order to all the Criminal Courts subordinate to this Court to ensure that the said Courts scrupulously comply with the directions issued by the Division Bench of this Court in paragraph 25 of the said decision;
(d) A copy of this order shall be forwarded to the Registrar (Judicial-I) of this Court.
(A.S.OKA, J.) ::: Downloaded on - 09/06/2013 14:17:31 :::