Giving relief to Lalu Yadav and his wife on a technical point, the Supreme Court in a decision delivered this week has declared that given the provisions of the Code of Criminal Procedure, the State Government cannot direct filing of appeal against an acquittal order passed by a court where the matter is investigated by the CBI. The Supreme Court, setting aside the proceedings before the High Court, declared that in matters investigated by the CBI it is only the Central Government which can file appeal against acquittal of accused.
The Court was interpreting Section 378 of the Code of Criminal Procedure which inter alia states as under;
S.378. - Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal.
Holding that the term 'also' in sub-Section (2) did not imply that the State Government could also file an appeal in a matter investigated by the CBI (i.e. Delhi Special Policy Establishment) given the fact that sub-Section (1) employed the terminology 'save as otherwise provided', the Court gave the conclusion as under;
40. In our opinion, the Legislature has maintained a mutually exclusive division in the matter of appeal from an order of acquittal inasmuch as the competent authority to appeal from an order of acquittal in two types of cases referred to in sub-section (2) is the central government and the authority of the state government in relation to such cases has been excluded. As a necessary corollary, it has to be held, and we hold, that the State Government (of Bihar) is not competent to direct its public prosecutor to present appeal from the judgment dated December 18, 2006 passed by the Special Judge, CBI (AHD), Patna.
Stating the principles of interpretation of statutes, the Bench opined that;
34. The main object and legislative intent by the opening words – “save as otherwise provided in sub-section (2)” – in sub-section (1) of Section 378 being clear i.e., to fetter the general power given to the state government in filing appeal from the order of acquittal in two types of cases stated in sub-section (2), the use of word “also” in sub-section (2) does not make any sense. The word “also” in sub-section (2), if construed in the manner suggested by the state government, may result in reducing the opening words in subsection (1) a nullity and will deny these words their full play. Since exception (clause) in the beginning of sub-section (1) has been expressly added in Section 378 and it is not possible to harmonise the word “also” occurring in sub-section (2) with that, it appears to us that no sensible meaning can be given to the word “also” and the said word has to be treated as immaterial. We are not oblivious of the fact that to declare “also” enacted in sub-section (2) immaterial or insensible is not very satisfactory, but it is much more unsatisfactory to deprive the words – “save as otherwise provided in sub-section (2)” – of their true and plain meaning. In order that the exception (clause) expressly stated in the opening words of sub-section (1) might be preserved, it is necessary that word “also” in sub-section (2) is treated as immaterial and we hold accordingly.
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37. A perusal of Section 24 would show that the central government appoints its public prosecutors for conducting prosecution, appeal or other proceedings on its behalf and a state government appoints its public prosecutors in conducting prosecution, appeal or other proceedings on its behalf. One has no control over the other. The central government or the state government, as the case may be, may appoint a special public prosecutor for the purpose of any case or class of cases. Under Section 378(1) the state government may direct its public prosecutor to file an appeal from an order of acquittal while under Section 378(2) the central government may direct its public prosecutor to file an appeal from an order of acquittal. The public prosecutor, thus, has to be associated in an appeal from an order of acquittal. The 1946 Act provides for constitution of a special police establishment for investigation of certain offences or class of offences as notified under Section 3 of the 1946 Act. A close look to the provisions of 1946 Act would show that investigation thereunder is a central investigation and the officers concerned are under the superintendence of the officer appointed by the central government. It is the central government that has the superintendence over Delhi Special Police Establishment. What is, therefore, important to notice is that it is the central government which is concerned with the investigation of the case by Delhi Special Police Establishment and its ultimate result. It is for this reason that sub-section (2) of Section 378 provides for appeal against acquittal in two types of cases mentioned therein on the direction of the central government by its public prosecutor. The opening words in sub-section (1), thus, qualify the general power given to the state government in filing appeal from an order of acquittal so that the central agency, which is solely and intimately connected with the investigation of cases referred in sub-section (2), may approach the central government for direction to appeal in appropriate cases.
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