Bombay High Court
Sunderbaug Lane vs The State Of Maharashtra on 13 December, 2011
Bench: V.M. Kanade, M.L. Tahaliyani
1
APPA.46-2011
acd
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.46 OF 2011
IN
CRIMINAL APPEAL ST. NO. 35 OF 2011
Babu Uligappa Batteli )
Age 38 years )
having his address at ¼ Batteli )
Electronics, Panchsheel Chawl )
Sunderbaug Lane, Kamani, Kurla(W) )
Mumbai- 400 070, ig ) ..Applicant.
(Orig.Informanat/PW-1)
Vs.
1.The State of Maharashtra )
(through ACB, BMU, Mumbai. )
2. Pralhad Bhaurao Sable )
Age- 46 years, occ-nil )
residing at Mahatma Phule Wadi )
Karba Mithagar, Barkatali Darga Road)
Near Wadala Police Station, )
Wadala (East) Mumbai-400 037. )
3. Ayub Babu Khan )
Age 40 years, occu-nil )
residing at Bail Bazar, )
Old Kurla Andheri Road, Anand )
Bhavan Chawl, Room No.2, )
Kurla (West), Mumbai-400 070. ) ..Respondents.
(Nos.2 & 3 Orig.Accused)
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APPA.46-2011
Mr. Murtaza Najmi a/w A.K. Moily,
for the Applicant.
Mr. P.S. Hingorani, A.P.P. for the State.
Mr. Kamlesh Mali a/w Pawan Mali i/b
C.P. Sengaonkar, for Respondent No.2.
Mr. H. Shaikh with Dhiraj Bansode i/b
Amin Solkar, for Respondent No.3.
----
CORAM: V.M. KANADE &
M.L. TAHALIYANI, JJ.
ig DATE : DECEMBER 13, 2011.
ORAL JUDGMENT (PER V.M. KANADE, J.):
1. Heard learned counsel for the applicant, learned counsel for
respondent nos 2 and 3, and learned A.P.P. appearing for the State.
2. The applicant is the original complainant who had filed a
complaint against respondent no.2 for offences punishable under the
Prevention of Corruption Act. Pursuant to the complaint investigation was
made and a chargesheet was filed against respondent no.2, and he was tried
by the Special Judge. The Trial Court, however, acquitted respondent no.2
by judgment and order dated 11.5.2009.
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3. Being aggrieved by the said judgment and order, the applicant
has preferred this appeal under the proviso of Section 372 of the Code of
Criminal Procedure, and has also filed an application for condonation of
delay caused in filing of this appeal.
4. It is submitted that the applicant is a victim within the meaning
of Section 2(wa) of the Cr. P.C., and therefore, has a right to file an appeal
against the order of acquittal in view of the amendment to Section 372 of
the Cr. P.C. Secondly, it is submitted that the said amendment being a
procedural amendment could have retrospective effect and therefore, the
applicant would have a right to file an appeal and apply for a condonation
of delay caused in filing this appeal.
5. On the other hand, learned counsel appearing on behalf of
respondent no.2 submits that in the complaint which is filed under the
Prevention of Corruption Act, the complainant could not be termed as
victim within the meaning of Section 2(wa) of the Cr. P.C. In support of
the said submission, reliance is placed on the judgment of the learned
Single Judge of this Court delivered in the case of Prakash C. Sheth Vs.
State of Maharashtra & Ors. in Criminal Appeal No.508 of 2011 dated
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21.7.2011. Further, it is submitted that since the judgment which was
delivered by the Trial Court was dated 11.5.2009, the applicant did not
have the right to file an appeal under the amended Section 372 of Cr. P.C.
since the said amendment came into force on 31st December, 2009. In
support of the said submission, reliance is placed on the judgment of the
Apex Court in the case of National Commission for Women Vs. State of
Delhi & Anr. [(2010) 12 SCC 599].
6.
On the other hand, learned counsel appearing on behalf of the
applicant submitted that so far as the term "victim" is concerned, it could
not be given a restricted meaning. He further submits that similarly the
word "any" which is used in the proviso clearly showed that the word
"victim" included all types of victim. In support of the said submission,
reliance is placed on two judgments of the Apex Court in the case of viz.
(i) Union Bank of India Vs. M/s Seppo Rally OY & Anr. [AIR 2000
Supreme Court 62], and (ii) Rajkumar Shivhare Vs. Assistant Director,
Directorate of Enforcement & Anr. [AIR 2010 Supreme Court 2239].
7. So far as the first question as to whether the complainant who
has filed a complaint under the provision of Prevention of Corruption Act
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would be a victim or not within the meaning of the said Section- 2(wa) is
concerned, in our view, taking into consideration the objects and reasons
and the said definition, even a complainant who files a complaint under the
Prevention of Corruption Act will have to be treated as a victim. Firstly it
has to be remembered that the Legislature in its wisdom had to amend the
Code of Criminal Procedure after taking into consideration various
judgments of the Apex Court and observations made thereunder, and also
the law commission report wherein emphasis was laid on the rights of the
victim. It would be relevant to take into consideration the objects and
reasons. From the perusal of the said objects and reasons, it is obvious that
the Legislature thought it necessary to create substantive rights in favour
of the victim and in order to ensure that the said word "victim" was not
given a restricted meaning the word "any" has been used as prefix to the
said word "victim". The word "any victim" therefore would include
various categories of victim. Since it is not possible to categorize the word
"victim" by defining it in particular manner, therefore, the Legislature has
used the word "any". The word victim is defined in Section 2(wa) as under:
"victim" means a person who has suffered any loss or
injuries caused by reason of the act or omission for which
the accused person has been charged and the expression
"victim" includes his or her guardian or legal heir"
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Section 372 of Cr. P.C. reads as under:
" 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.
8. Perusal of the definition of the "victim" would also indicate
that the criteria which has been used for the purpose of determining the
victim is essentially the loss or injury caused by reason of the act or
omission for which the accused person has been charged. If the said criteria
is applied to the cases where the complaint is filed under the Prevention of
Corruption Act, the loss or injury has to be read in the context of the
provision of the Prevention of Corruption Act.
9. Under the said Act, the complainant or a person who suffers as
a result of any act or omission on the part of a public servant by virtue of
demand of bribe is entitled to file a complaint. The loss or injury caused,
therefore, in such case cannot be equated with loss or injury caused in the
case where the person is inflicted a physical injury or wrongful loss is
caused to his property or valuable security as in the case where the
complaint of cheating is filed. In cases where the complaints are filed under
the Prevention of Corruption of Act injury is caused by the public servant
in not discharging his statutory duty for deciding the application of the
complainant.
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10. The law Commission in its 154th Report has laid special
emphasis in Chapter XV on the subject of Victimology and has observed
that right from the ancient Babylonian Code of Hammurabi (about 1775
BC), it has been observed that victim of crime was left with no remedy
except to sue for damages in the civil court. It is also noted that in Anglo-
Saxon legal system an English Magistrate advocated state compensation to
be given to the victims of crime and, accordingly, programme was set up in
Britain in the year 1964. A reference also was made to the declaration made
by the General Assembly of the United States Nations in its 96th plenary
meeting on 29th November, 1985, laying down basic principles of justice
for victims of crime and abuse of power, recognizing that millions of
people throughout the world suffer harm as a result of crime and the abuse
of power and that the rights of these victims have not been adequately
recognized and that frequently their families, witnesses and other who aid
them are unjustly subjected to loss, damage or injury. In this Report, apart
from referring to earlier Law Commission Reports, reference is also made
to Justice V.R. Krishna Iyer, Human Rights- A Judge's Miscellany (1995);
V.N. Rajan Victimology in India (1995); R.I. Mawby and S. Walklate,
Critical Victimology (1994); Law Reform Commission of Canada (1974)
and other essays and reports on this subject.
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11. The celebrated "Heydon's Rule" or "Mischief Rule" reads as
under:-
"1st - What was the law before making of
the Act,
2nd - What was the mischief and defect
for which the previous law did not
provide.
3rd - What remedy the Parliament had
resolved and appointed to cure the
disease of the commonwealth, and
4th - The true reason of the remedy."
(Principles of Statutory Interpretation
by Justice G.P.Singh, 11th Edition 2008.)
12. It appears that as a result of prevailing conditions as they
existed prior to the amendment when instances had come to light where the
accused, who had tremendous influence, both, political, financial and
otherwise, could get away after committing crime and the victim was very
often was left without remedy either of filing appeal or challenging the
inadequate compensation which was awarded, the legislature appears to
have taken cognizance of the pronouncements and observations made
by the Apex Court in various judgments; one of which is referred to herein
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(Best Bakery Case) and passed Amendment Act which takes into
consideration various aspects which may be seen from the Statement of
Objects and Reasons which reads as under:-
"Statement of Objects and Reasons.- The need to amend
the Code of Criminal Procedure, 1973 to ensure fair and
speedy justice and to tone up the criminal justice system has
been felt for quite sometime. The Law Commission has
undertaken a comprehensive review of the Code of
Criminal Procedure in its 154th report and its
recommendations have been found very appropriate,
particularly those relating to provisions concerning arrest,
custody and remand, procedure for summons and
warrant-cases, compounding of offences, victimology,
special protection in respect of women and inquiry and trial of
persons of unsound mind. Also, as per the Law
Commission's 177th report relating to arrest, it has been found
necessary to revise the law to maintain a balance between the
liberty of the citizens and the society's interest in maintenance
of peace as well as law and order.
2. The need has also been felt to include measures for
preventing the growing tendency of witnesses being
induced or threatened to turn hostile by the accused parties
who are influential, rich and powerful. At present, the
victims are the worst sufferers in a crime and they don't have
much role in the Court proceedings. They need to be given
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certain rights and compensation, so that there is no distortion
of the criminal justice system. The application of
technology in investigation, inquiry and trial is expected to
reduce delays, help in gathering credible evidences, minimise
the risk of escape of the remand prisoners during transit and
also facilitate utilisation of police personnel for other
duties. There is an urgent need to provide relief to women,
particularly victims of sexual offences, and provide fair-
trial to persons of unsound mind who are not able to defend
themselves.
3. The Code of Criminal Procedure (Amendment) Bill, 2006
seeks to achieve the above objectives." [Emphasis supplied]
The Statement of Objects and Reasons also makes a reference to the Law
Commission's 154th Report and its recommendations and it is
observed that these recommendations have been found to be very
appropriate, particularly relating to the provisions of arrest, custody and
remand, procedure for summons and warrant-cases,
compounding of offences, victimology, special protection in respect of
women and inquiry and trial of persons of unsound mind. It is also
observed that the need has also been felt to include measures for preventing
the growing tendency of witnesses being induced or threatened to turn
hostile by the accused parties who are influential, rich and powerful. It was
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also felt, therefore, that certain rights and compensation should be provided
to the victim so that there is no distortion of the criminal justice system.
It is also observed that application of technology in investigation, inquiry
and trial is expected to reduce delays, help in gathering credible evidences,
minimise the risk of escape of the remand prisoners during transit etc and
urgent need to provide relief to women, particularly victims of sexual
offences. The Amendment Act which is called the Code of Criminal
Procedure (Amendment) Act, 2008 was passed on 7/1/2009 and the various
provisions of the Code have been amended in order to ensure that intention
of the legislature is fulfilled by carrying out these amendments. Before,
therefore taking into consideration the said provisions of
Section 372 and the proviso which has been inserted, it is necessary to keep
in mind that prior to the said amendment being brought in force, no right of
appeal was given to the victim and proviso, therefore, gives right to victim
in three cases viz. in cases where the accused is acquitted or is convicted
for a lesser offence or where the compensation which is imposed is found
to be inadequate. No right, however, has been given in cases where
inadequate sentence is imposed or awarded by the Trial Court and that
right is retained by the State by virtue of Section 377."
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13. It would be also relevant to note the observations made by the
Apex Court in a different context in the case of K.C. Sareen Vs. C.B.I.,
Chandigarh [(2001) 6 Supreme Court Cases 584] in paragraphs 12 and 13
which are as under:
"12. Corruption by public servants has now reached a
monstrous dimension in India. Its tentacles have started
grappling even the institutions created for the protection of the
republic. Unless those tentacles are intercepted and impended
from gripping the normal and orderly functioning of the public
offices, through strong legislative, executive as well as judicial
exercises the corrupt public servants could even paralyse the
functioning of such institutions and thereby hinder the
democratic polity. Proliferation of corrupt public servants
could garner momentum to cripple the social order if such
men are allowed to continue to manage and operate public
institutions. When a public servant is found guilty of
corruption after a judicial adjudicatory process conducted by
a court of law, judiciousness demands that he should be
treated as corrupt until he is exonerated by a superior court.
The mere fact that an appellate or revisional forum has
decided to entertain his challenge and to go into the issues
and findings made against such public servants once again
should not even temporarily absolve him from such findings. If
such a public servant becomes entitled to hold public office
and to continue to do official acts until he is judicially
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absolved from such findings by reason of suspension of the
order of conviction, it is public interest which suffers and
sometimes, even irreparably. When a public servant who is
convicted of corruption is allowed to continue to hold public
office, it would impair the morale of the other persons
manning such office, and consequently that would erode the
already shrunk confidence of the people in such public
institutions besides demoralising the other honest public
servants who would either be the colleagues or subordinates
of the convicted person. If honest public servants are
compelled to take orders from proclaimed corrupt officers on
account of the suspension of the conviction, the fallout would
be one of shaking the system itself. Hence it is necessary that
the court should not aid the public servant who stands
convicted for corruption charges to hold only (sic) public
office until he is exonerated after conducting a judicial
adjudication at the appellate or revisional level. It is a
different matter if a corrupt public officer could continue to
hold such public office even without the help of a court order
suspending the conviction.
13. The above policy can be acknowledged as necessary for
the efficacy and proper functioning of public offices. If so, the
legal position can be laid down that when conviction is on a
corruption charge against a public servant the appellate court
or the revisional court should not suspend the order of
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conviction during the pendency of the appeal even if the
sentence of imprisonment is suspended. It would be a sublime
public policy that the convicted public servant is kept under
disability of the conviction in spite of keeping the sentence of
imprisonment in abeyance till the disposal of the appeal or
revision."
Though the said observations are made in the context of
exercise of power by the Court of appeal under Section 389 for suspending
the order of conviction, in our view, these observations also are very
relevant for the purpose of determination of the issue in question.
14. Therefore, in our view, in the case under the Prevention of
Corruption Act, the inaction or omission on the part of the public servant
not passing any order on the application or passing a adverse order since
bribe is not given would constitute the loss or injury and therefore, even
such complainant would fall within the category of a victim.
15. Apart from this, there is much substance in the submissions
made by the learned counsel for the applicant that the word "any" which
has been used in the proviso to the Section 372 also cannot be given
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restricted meaning. The Apex Court in the case of Rajkumar Shivhare Vs.
Assistant Director (Supra), has while construing the provision of Section
35 of the Foreign Exchange Management Act, 1999 has observed as under:
"25. Justice Chitty in Beckttt V. Sutton (51 Law Journal 1882
Chancery Division 432) had to interpret "any decree or
order" in Section 1 of the Trustee Extension Act, 1852 and his
Lordship held:
"...the words of the section are as wide as possible, and
appear to me to apply adopting the language the Legislature
has used to "any decree or order" by which the Court directs
a sale".
26. The word 'any dispute' is somewhat akin to 'any order' or
'any decision'. Any dispute, occurring in Section 51 of
Arbitration Act 1975, has been interpreted to have a wide
meaning to cover all situations where one party makes a
request or demand and which is refused by the other party
[see Ellerine Bros (Pty) Ltd. and another V. Klinger, 1982 (2)
AER 737].
27. Justice Bachawat, while in Calcutta High Court, in the
case of Satyanarain Biswanath V. Harakchand Rupchand,
reported in AIR 1955 Calcutta 225, interpreted the word 'any'
in Rule 10 of Bengal Chamber of Commerce, Rules of the
Tribunal of Arbitration. Construing the said rule, the learned
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Judge held that the word 'any' in Rule 10 means one or more
out of several and includes all and while doing so the learned
Judge relied on an old decision of the Calcutta High Court in
the case of Jokhiram Kaya V. Ganshamdas Kedarnath,AIR
1921 Cal 244 at page 246. This Court is in respectful
agreement with the aforesaid view of the learned Judge.
28. In Black's Law Dictionary the word 'any' has been
explained as having a 'diversity of meaning' and may be
'employed to indicate all and every as well as some or one
and its meaning in a given Statute depends upon the context
and subject matter of Statute". The aforesaid meaning given
to the word 'any' has been accepted by this Court in Lucknow
Development Authority V. M.K. Gupta [AIR 1994 SC 787]:
(1994 AIR SCW 97). While construing the expression "service
of any description" under Section 2(o) of Consumer
Protection Act, 1986 this Court held that the meaning of the
word 'any' depends upon the context and the subject matter of
the Statute and held that the word 'any' in Section 2(o) has
been used in wider sense extending from one to all (para 4 at
page 793 of the report). In the instant case also when a right
is conferred on a person aggrieved to file appeal from 'any'
order or decision of the Tribunal, there is no reason in the
absence of a contrary statuary intent, to give it a restricted
meaning."
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16. In this context, the Apex Court, therefore, held that the word
'any' which was used in the said provision could not be given restricted
meaning.
17. On the same analogy, therefore, in our view a restricted
meaning cannot be given to the word "victim". Even complainant who has
suffered loss on account of inaction and omission on the part of the public
servant will have to be termed as "victim". Our attention has been invited
to the judgment of the learned Single Judge of this court in the case of
Prakash C. Sheth Vs. State of Maharashtra & Ors. in Criminal Appeal
No.508 of 2011 dated 21.7.2011 (Coram:R.C. Chavan, J.). We respectfully
disagree with the view taken by the learned Single Judge in view of
whatever we have stated hereinabove.
18. We are of the view that the complainant or a person who is
aggrieved on account of act or omission of a public servant would fall
within the definition of the word "any victim" and would be entitled to file
a substantive appeal against the order of acquittal in view of the proviso to
Section 372 of Cr. P.C.
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19. So far as second submission is concerned, in our view, since
the impugned judgment and order passed by the Special Judge is dated
11.5.2009, the applicant does not have a substantive right to file an appeal
against the said order since such right had vested in him only after the
amended Section 372 came into force i.e. after 31st December, 2009. It is
settled position in law that whenever substantive rights are created by the
amendment, the said provision cannot apply retrospectively unless it is
specifically provided by the said amendment. This question is no longer
res-integra in view of the judgment of the Apex Court in the case of
National Commission for Women (Supra) . In the said case similar
question arose and the Apex Court in para-8 of the said judgment has
observed as under:
"8. Chapter XXIX of the Code of Criminal Procedure deals
with "Appeal(s). Section 372 specifically provides that no
appeal shall lie from a judgment or oder of a criminal court
except as provided by the Code or by any other law which
authorises an appeal. The proviso inserted by Section 372(Act
5 of 2009) with effect from 31.12.2009, gives a limited rights
to the victim to file an appeal in the High Court against any
order of a criminal court acquitting the accused or convicting
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him for a lesser offence or the imposition of inadequate
compensation. The proviso may not thus be applicable as it
came in the year 2009 (long after the present incident) and,
inn any case, would confer a right only on a victim and also
does not envisage an appeal against an inadequate sentence.
An appeal would thus be maintainable only under Section 377
to the High Court as it is effectively challenging the quantum
of sentence."
20.
In the said case, the Trial Court had acquitted the accused by
its judgment and order dated 21.4.2008, and therefore, the appeal could not
have been filed. The Apex Court, therefore, in para-11 has observed as
under:
"11. An appeal is a creature of a statute and cannot lie
under any inherent power. This Court does undoubtedly grant
leave to appeal under the discretionary power conferred under
Article 136 of the Constitution of India at the behest of the
State or an affected private individual but to permit anybody
or an orgnasation pro bono publico to file an appeal would be
a dangerous doctrine and would cause utter confusion in the
criminal justice system. We are, therefore, of the opinion that
the special leave petition itself was not maintainable."
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21. In view of the above, the appeal filed by the applicant being
not maintainable since it is challenging the judgment and order passed by
the Trial Court dated 11.5.2009, the question of condonation of delay does
not arise.
Hence, the Criminal Application is dismissed. In view thereof,
the Criminal Appeal also does not survive.
22.
Needless to mention that the applicant is at liberty to take out
proceedings in accordance with law.
(M.L. TAHALIYANI, J.) (V.M. KANADE, J.)
