REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 662 OF 2010
[Arising out of SLP (Crl.) No. 6563 of 2007]
Lalu Prasad Yadav & Anr. ....Appellants
Vs.
State of Bihar & Anr. ....Respondents
WITH
CRIMINAL APPEAL NO. 670 OF 2010
[Arising out of SLP (Crl.) No. 6821 of 2007]
Central Bureau of Investigation ....Appellant
Vs.
State of Bihar & Ors. ....Respondents
JUDGMENT
R.M. LODHA,J.
Leave granted.
2. Section 378 of Code of Criminal Procedure, 1973 (for
short, `1973 Code’) enacts the provision for appeal from an order of
acquittal. The said provision as it existed prior to 2005 amendment
reads:
“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.(3) No appeal under sub-section (1) or sub-section (2)
shall be entertained except with the leave of the High
Court.(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of
acquittal, the complainant may present such an appeal
to the High Court.(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and
sixty days in every other case, computed from the date
of that order of acquittal.(6) If, in any case, the application under sub-section (4)
for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of
acquittal shall lie under sub-section (1) or under sub-
section (2).”2
3. The main question presented, in light of the aforesaid
provision is, namely, as to whether the State Government (of Bihar)
has competence to file an appeal from the judgment dated 18th
December, 2006 passed by Special Judge, CBI (AHD), Patna,
acquitting the accused persons when the case has been investigated
by the Delhi Special Police Establishment (CBI).
4. Shri Lalu Prasad Yadav and Smt. Rabri Devi are
husband and wife. Both of them have held the office of Chief Minister
of the State of Bihar. These appeals concern the period from March
10, 1990 to March 28, 1995 and April 4, 1995 to July 25, 1997 when
Shri Lalu Prasad Yadav was the Chief Minister, Bihar. Allegedly for
acquisition of assets – both moveable and immoveable – by corrupt
or illegal means disproportionate to his known sources of income
during the aforesaid period, a first information report (FIR) was
lodged by CBI against Shri Lalu Prasad Yadav and also his wife. As
a matter of fact, lodgement of FIR was sequel to direction by the
Patna High Court to CBI to enquire and scrutinize all cases of excess
drawls and expenditure in the Animal Husbandry Department,
Government of Bihar during the period 1977-78 to 1995-96. CBI
investigated into the matter and on August 19, 1998, a chargesheet
was filed against Shri Lalu Prasad Yadav and Smt. Rabri Devi in the
3
Court of Special Judge, CBI (AHD), Patna. The charges were framedagainst Shri Lalu Prasad Yadav under Section 13(1)(e) read with
Section 13(2) of the Prevention of Corruption Act, 1988 (`PC Act’)
that during the said period, he acquired assets which were
disproportionate to his known sources of income and on 31st March,
1997 he had been in possession of pecuniary resources of property
in his name and in the name of his wife and children to the extent of
Rs. 46,26,827/- which he could not satisfactorily account for. Smt.
Rabri Devi was charged under Section 109 of Indian Penal Code
(IPC) read with Section 13(1)(e) and 13(2) of the PC Act for abetting
her husband in the commission of the said offence. The Court of
Special Judge, CBI (AHD), Patna, upon conclusion of trial, vide its
judgment dated December 18, 2006 acquitted the accused holding
that prosecution failed to prove the charges levelled against them.
5. It is pertinent to notice here that as per CBI, the central
government after considering the conclusions and findings of the trial
court took a conscious and considered decision that no ground
whatsoever was made for filing an appeal against the judgment of the
trial court.
6. On February 17, 2007 the state government, however,
filed leave to appeal against the order of acquittal dated December
4
18, 2006 before the High Court of Judicature at Patna. The accusedwere arrayed as respondent nos. 1 and 2 respectively and the CBI
was impleaded as respondent no. 3. The Single Judge of the High
Court issued notice to the respondents to show cause as to why
leave to appeal be not granted. In response thereto, on behalf of
respondent nos. 1 and 2, a preliminary objection was raised with
regard to maintainability of appeal by the state government. The
preliminary objection about the maintainability of appeal raised by
respondent nos. 1 and 2 was supported by respondent no. 3 (CBI).
The learned Single Judge heard the arguments on the question of
maintainability of appeal and vide his order dated September 20,
2007 overruled the preliminary objection and held that appeal
preferred by the state government was maintainable. It is from this
order that two appeals by special leave have been preferred. One of
the two appeals is by the accused and the other by CBI.
7. We heard Mr. Ram Jethmalani, learned senior counsel
(for accused) and Mr. A. Mariarputham, learned senior counsel (for
CBI) – appellants – and Mr. L. Nageshwar Rao, learned senior
counsel for the state government.
8. Mr. Ram Jethmalani submitted that the competence of the
state government to file an appeal from the judgment and order of
5
acquittal is to be determined by Section 378 of the 1973 Code as itexisted prior to 2005; the law in force on the date of the chargesheet.
He would submit that the key words in Section 378(1) are : “Save as
otherwise provided in sub-section (2)” and by these words whatever
is covered by sub-section (2) is left outside the purview of sub-section
(1). According to him, the word “also” in sub-section (2) refers to the
mode of exercising substantive right of appeal; the word “also” in the
changed context means `likewise’ and that means that the central
government can also instruct the public prosecutor to present an
appeal; it does not have to file vakalatnama signed by the President
of India or for the State by the Governor of the State. Learned senior
counsel argued that the High Court by giving undue weight to the
word “also” in sub-section (2) has made the opening key words in
sub-section (1) of Section 378 wholly redundant and useless thereby
defeating the intention of the Legislature. He would, thus, submit
that the court has to adopt one of the two courses, namely, (i) assign
to the word another of its meanings which the word does carry and
harmonise it with the effect of the dominant words or (ii) reject the
word as a useless surplusage.
9. Mr. Ram Jethmalani, learned senior counsel, referred to
the judgment of this Court in Eknath Shankarrao Mukkawar v. State
6
of Maharashtra1, and submitted that the construction of Section 377put by this Court where similar words occur, must apply to the
construction of Section 378 as well. He argued that the reliance
placed by the High Court upon the decision of this Court in the case
of Khemraj vs. State of Madhya Pradesh2 was misconceived as the
said case has no application on construction of Section 378 as the
controlling words “save as otherwise provided” did not exist in Section
417 of Code of Criminal Procedure (for short, `1898 Code’) and the
observations made in that case are neither ratio decidendi nor obiter
dicta.
10. Lastly, Mr. Ram Jethmalani contended that if there is a
conflict of exercise of executive powers by the state government and
the central government, by virtue of the proviso to Article 162 of the
Constitution of India, the decision of the latter will prevail.
11. Mr. A. Mariarputham, learned senior counsel for CBI,
adopted the arguments of Mr. Ram Jethmalani. He further submitted
that by addition of words “save as otherwise provided in sub-section
(2)”, in Section 378, the Legislature brought changes in erstwhile
Section 417 of 1898 Code and made its intention clear to take class
of cases covered by sub-section (2) out of purview of sub-section (1).
1
(1977) 3 SCC 25
2
(1976) 1 SCC 385
712. On the other hand, Mr. L. Nageshwar Rao, learned senior
counsel for the state government, vehemently supported the view of
the High Court to sustain the maintainability of appeal filed by the
state government. He submitted that right of appeal is a creature of
statute and the question whether there is right of appeal or not will
have to be considered on an interpretation of the provision of the
statute and not on the ground of propriety or any other consideration.
According to him, when the language of statute is plain and
unambiguous then literal rule of interpretation has to be applied and
the court must give effect to the words used in the statute and it
would not be open to the courts to adopt a hypothetical construction
on the ground that such construction is more consistent with the
alleged object and policy of the Act or to have consideration of equity,
public interest or to seek the intention of the Legislature. He would
submit that the use of the expressions “in any case” in sub-section (1)
and “also” in sub-section (2) clearly indicates that Legislature
intended that the general rule would be that the state government
may file an appeal in any and every case [including cases covered by
sub-section (2)] and the central government may additionally file an
appeal in a case covered by sub-section (2). Mr. L. Nageshwar Rao
contended that the interpretation to the expression “save as
otherwise provided in sub-section (2)”, sought to be placed by the
8
appellants, is not in accordance with the logic or the plain language ofthe provision and such interpretation would result in rendering the
expression “in any case” in sub-section (1) and the word “also” in
sub-section (2) redundant and otiose. He emphasized that no word
or expression used in any statute can be said to be redundant or
superfluous; that in matters of interpretation one should not
concentrate too much on one word and pay too little attention to other
words and no provision in the statute and no word in the section can
be construed in isolation and every provision and every word must be
looked at generally and in the context in which it is used.
13. Relying upon the case of Eknath Shankarrao Mukkawar1,
Mr. L. Nageshwar Rao submitted that this Court has held that in the
absence of use of the word “also” in sub-section (2) of Section 377,
as contained in sub-section (2) of Section 378, the state government
was incompetent to file an appeal in a case falling under Section
377(2) and now in order to remedy the lacuna pointed out by this
Court, Parliament amended Section 377(2) by Act No. 45 of 1978 to
include the word “also” therein and bring the same in pari materia
with the provisions of Section 378(2). He referred to the Statement of
Objects and Reasons for the said amendment and argued that after
the said amendment, the state government is also competent to file
an appeal in a case falling under Section 377(2). Learned senior
9
counsel urged that inasmuch as the provisions of Section 377 andSection 378 are now in pari materia and the same interpretation
needs to be accorded to Section 378 as well.
14. Mr. L. Nageshwar Rao, learned senior counsel, strenuously
urged that the interpretation sought to be placed by the appellants
would lead to absurdity inasmuch as (i) even in a case where the
state government requests and permits investigation under
Section 6 of the Delhi Special Police Establishment Act, 1946
(`1946 Act’, for short) and prosecution is conducted by the public
prosecutor appointed by the state government, the state
government would not be entitled to file an appeal in case of
acquittal, but would have to approach the central government for
the purpose (which has no role or connection with the
investigation or the case); and (ii) in view of the express
amendment to Section 377 of 1973 Code so as to enable the
state government to file an appeal even where investigation was
conducted by the CBI or central agency, the state government
would be competent to file an appeal in case of award of
inadequate sentence; but in a similar case that results in acquittal
then the state government would not be able to file an appeal
under Section 378.
1
15. In the Code of Criminal Procedure, 1861, Section 407
prohibited an appeal from acquittal. For the first time, the Code
of Criminal Procedure, 1872 provided for an appeal by the
government from an order of acquittal (Section 272). The said
provision was re-enacted in Section 417 of the Code of Criminal
Procedure, 1882. The provision concerning an appeal in case of
acquittal was retained in Section 417 of 1898 Code. The
provision relating to an appeal from order of acquittal in 1898
Code (as amended by Amendment Act 26 of 1955) reads as
under:-
“S. 417.- Appeal in case of acquittal.- (1) Subject to
the provisions of sub-section (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.(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, the
Central Government may also direct the Public
Prosecutor to present an appeal to the High Court from
the order of acquittal.(3) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of acquittal
the complainant may present such an appeal to the
High Court.(4) No application under sub-section (3) for the grant
of special leave to appeal from an order of acquittal1
shall be entertained by the High Court after the expiry of
sixty days from the date of that order of acquittal.(5) If, in any case, the application under sub-section
(3) for the grant of special leave to appeal from an order
of acquittal is refused, no appeal from that order of
acquittal shall lie under sub-section (1).”16. In 1973 Code, appeal from an order of acquittal has been
retained with some modifications. Section 378, sub-section (1)
opens with the words, “save as otherwise provided in sub-section
(2)”. The main thrust of the arguments by the learned senior
counsel centered around the opening words, “save as otherwise
provided in sub-section (2)”, the phrase “in any case” in sub-
section (1) and the word “also” in sub-section (2).
17. Way back in 1766, Parker, C.B., in Robert Mitchell v.
Soren Torup3 recognized the rule that in expounding Acts of
parliament, where words are express, plain and clear, the words
ought to be understood according to their genuine and natural
signification and import, unless by such exposition a contradiction or
inconsistency would arise in the Act by reason of some subsequent
clause, from whence it might be inferred the intent of the Parliament
was otherwise; and this holds with respect to penal, as well as other
Acts.
3
(1766) Parker 227
118. Parke, B. in Becke v. Smith4, stated the following rule:
“It is a very useful rule, in the construction of a statute,
to adhere to the ordinary meaning of the words used,
and to the grammatical construction, unless that is at
variance with the intention of the legislature, to be
collected from the statute itself, or leads to any manifest
absurdity or repugnance, in which case the language
may be varied or modified, so as to avoid such
inconvenience, but no further.”19 In The Attorney-General v. Lockwood5, the rule regarding
construction of statutes was expounded in the following words:
“…..The rule of law, I take it, upon the construction of
all statutes, and therefore applicable to the construction
of this, is, whether they be penal or remedial, to
construe them according to the plain, literal, and
grammatical meaning of the words in which they are
expressed, unless that construction leads to a plain and
clear contradiction of the apparent purpose of the act, or
to some palpable and evident absurdity….”.20. In The Sussex Peerage6, the House of Lords, through
Lord Chief Justice Tindal, stated the rule for the construction of Acts
of Parliament that they should be construed according to the intent of
the Parliament which passed the Act. If the words of the statute are
of themselves precise and unambiguous, then no more can be
necessary than to expound those words in their natural and ordinary
4
(1836) 2 Meeson and Welsby 191
5
(1842) 9 Meeson and Welsby 378
6
(1844) XI Clark & Finnelly 85
1
sense. The words themselves do, in such case, best declare theintention of the Legislature.
21. A Constitution Bench of this Court in Union of India & Anr.
v. Hansoli Devi and Others7, approved the rule exposited by Lord
Chief Justice Tindal in The Sussex Peerage’s case6 and stated the
legal position thus:
“It is a cardinal principle of construction of a statute that
when the language of the statute is plain and
unambiguous, then the court must give effect to the
words used in the statute and it would not be open to
the courts to adopt a hypothetical construction on the
ground that such construction is more consistent with
the alleged object and policy of the Act. In Kirkness v.
John Hudson & Co. Ltd., (1955) 2 All ER 345, Lord
Reid pointed out as to what is the meaning of
“ambiguous” and held that:“A provision is not ambiguous merely
because it contains a word which in
different contexts is capable of different
meanings. It would be hard to find
anywhere a sentence of any length which
does not contain such a word. A provision
is, in my judgment, ambiguous only if it
contains a word or phrase which in that
particular context is capable of having
more than one meaning.”
It is no doubt true that if on going through the plain meaning of
the language of statutes, it leads to anomalies, injustices and
absurdities, then the court may look into the purpose for which
the statute has been brought and would try to give a meaning,
which would adhere to the purpose of the statute. Patanjali
Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda
Bose, AIR 1952 SC 369, had held that it is not a sound
principle of construction to brush aside words in a statute as
7
(2002) 7 SCC 273
1
being inapposite surplusage, if they can have appropriate
application in circumstances conceivably within the
contemplation of the statute. In Quebec Railway, Light Heat &
Power Co. Ltd. v. Vandry, AIR 1920 PC 181, it had been
observed that the legislature is deemed not to waste its words
or to say anything in vain and a construction which attributes
redundancy to the legislature will not be accepted except for
compelling reasons. Similarly, it is not permissible to add
words to a statute which are not there unless on a literal
construction being given a part of the statute becomes
meaningless. But before any words are read to repair an
omission in the Act, it should be possible to state with
certainty that these words would have been inserted by the
draftsman and approved by the legislature had their attention
been drawn to the omission before the Bill had passed into a
law. At times, the intention of the legislature is found to be
clear but the unskilfulness of the draftsman in introducing
certain words in the statute results in apparent ineffectiveness
of the language and in such a situation, it may be permissible
for the court to reject the surplus words, so as to make the
statute effective……”
22. As noticed above, Section 378, sub-section (1), opens
with the words – “save as otherwise provided in sub-section (2)”.
These words are not without significance. The immediate question
is as to what meaning should be ascribed to these words. In Concise
Oxford English Dictionary (Tenth Edition, Revised), the word “save” is
defined thus:
“save.- formal or poetic/literary except; other than….”
23. In Webster Comprehensive Dictionary (International
Edition), the word “save” is defined as follows:-
1
“save.- Except; but – 1. Except; but 2. Archaic Unless”.
24. A Dictionary of Modern Legal Usage by Bryan A. Garner
(1987) states that “save” is an ARCHAISM when used for “except”. It
should be eschewed, although, as the examples following illustrate, it
is still common in legal prose. e.g., `The law-of-the-circuit rule forbids
one panel to overrule another save [read except] when a later statute
or Supreme Court decision has changed the applicable law’.
25. In Williams v. Milotin8, the High Court of Australia, while
construing the words “save as otherwise provided in this Act” stated:-
“….In fact the words “save as otherwise provided in this
Act” are a reflexion of the words “except” – or “save” –
“as hereinafter excepted”.
26. Section 378 is divided into six sub-sections. Sub-section
(1) provides that the state government may 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 High
Court or an order of acquittal passed by the court of session in
revision. It opens with the words “save as otherwise provided in
sub-section (2)” followed by the words “and subject to the provisions
of sub-sections (3) and (5)”. Sub-section (2) refers to two class of
cases, namely, (i) those cases where the offence has been
8
97 C.L.R.465
1
investigated by the Delhi Special Police Establishment constituted
under 1946 Act and (ii) those cases where the offence has been
investigated by any other agency empowered to make investigation
into an offence under any Central Act other than 1973 Code and
provides that the central government may also direct the public
prosecutor to present an appeal to the High Court from an order of
acquittal. Such an appeal by the central government in the aforesaid
two types of cases is subject to the provisions contained in sub-
section (3). Sub-section (3) provides that an appeal under sub-
sections (1) and (2) shall not be entertained without leave of the High
Court. Where the order of acquittal has been passed in a case
instituted upon complaint, sub-section (4) provides that the
complainant may apply for special leave to appeal from the order of
acquittal and if such leave is granted, an appeal be presented by him
to the High Court. The limitation is prescribed in sub-section (5).
Insofar as the cases covered by sub-section (4) are concerned,
where the complainant is a public servant, limitation prescribed is six
months from the date of an order of acquittal and in all other cases,
including the cases covered by sub-sections (1) and (2), a period of
sixty days from the date of the order of acquittal. Sub-section (6)
makes a provision that if an application under sub-section (4) for the
grant of special leave to appeal from an order of acquittal is refused,
1
no appeal from that order of acquittal shall lie under sub-section (1)
or under sub-section (2). We have surveyed Section 378 in its
entirety to have complete conspectus of the provision.
27. The opening words – “save as otherwise provided in sub-
section (2)” – are in the nature of exception intended to exclude the
class of cases mentioned in sub-section (2) out of operation of the
body of sub-section (1). These words have no other meaning in the
context but to qualify the operation of sub-section (1) and take out of
its purview two types of cases referred in sub-section (2), namely,
(i) the cases in which offence has been investigated by the Delhi
Special Police Establishment constituted under 1946 Act and (ii) the
cases in which the offence has been investigated by any other
agency empowered to make investigation into an offence under any
Central Act other than 1973 Code. By construing Section 378 in a
manner that permits appeal from an order of acquittal by the state
government in every case, except two class of cases mentioned in
sub-section (2), full effect would be given to the exception (clause)
articulated in the opening words. As noticed above, the words –
“save as otherwise provided in sub-section (2)” – were added in 1973
Code; Section 417 of 1898 Code did not have these words. It is
familiar rule of construction that all changes in wording and phrasing
may be presumed to have been deliberate and with the purpose to
1
limit, qualify or enlarge the pre-existing law as the changes of the
words employ. Any construction that makes exception (clause) with
which section opens unnecessary and redundant should be avoided.
If we give to Section 378, sub-sections (1) and (2), the interpretation
which the state government claims; we would have to say that no
matter that complaint was not lodged by the state government or its
officers; that investigation was not done by its police establishment;
that prosecution was neither commenced nor continued by the state
government; that public prosecutor was not appointed by the state
government; that the state government had nothing to do with the
criminal case; that all steps from launching of prosecution until its
logical end were taken by the Delhi Police Special Establishment
and yet the state government may file an appeal from an order of
acquittal under Section 378(1). That would be rendering the
exception (clause) reflected in the opening words – “save as
otherwise provided in sub-section (2)” – redundant, meaningless and
unnecessary. If the Legislature had intended to give the right of
appeal under Section 378(1) to the state government in all cases of
acquittal including the class of cases referred to in sub-section (2), it
would not have been necessary to incorporate the exception (clause)
in the opening words. This objective could have been achieved
without use of these words as erstwhile Section 417 of 1898 Code
1
enabled the state government to appeal from all cases of acquittal
while in two types of cases mentioned in sub-section (2) thereof,
appeal from the order of acquittal could be filed under the direction of
central government as well.
28. In The Bengal Immunity Company Limited v. The State of
Bihar and others9 Venkatarama Ayyar, J. observed :
“…..It is a well-settled rule of construction that when a
statute is repealed and re-enacted and words in the
repealed statute are reproduced in the new statute, they
should be interpreted in the sense which had been
judicially put on them under the repealed Act, because
the Legislature is presumed to be acquainted with the
construction which the Courts have put upon the words,
and when they repeat the same words, they must be
taken to have accepted the interpretation put on them
by the Court as correctly reflecting the legislative
mind……”
29. However, if the latter statute does not use the same
language as in the earlier one, the alteration must be taken to have
been made deliberately. In his classic work, Principles of Statutory
Interpretation by G.P. Singh, 12th Edition, 2010 at page 310, the
following statement of law has been made:
“Just as use of same language in a later statute as was
used in an earlier one in pari materia is suggestive of
9
(1955) 2 SCR 603
2
the intention of the Legislature that the language so
used in the later statute is used in the same sense as in
the earlier one, change of language in a later statute in
pari materia is suggestive that change of interpretation
is intended.”
The learned author also refers to the observations of Lord MacMillan
in D.R. Fraser & Co. Ltd. v. The Minister of National Revenue10:
“When an amending Act alters the language of the principal Statute,
the alteration must be taken to have been made deliberately”.
30. It is important to bear in mind that this Court in Khemraj2 ,
has put the following construction to Section 417 of 1898 Code:
“10. Section 417 Criminal Procedure Code, prior to the
Amendment Act XXVI of 1955 provided for presentation
of appeals by the Public Prosecutor on the direction of
the State Government. The 1955 Amendment
introduced several changes and provided for appeals at
the instance of the complainant as also on the direction
of the Central Government in cases investigated by the
Delhi Special Police Establishment. Further changes
were introduced in the matter of appeals against
acquittal under Section 378 of the Code of Criminal
Procedure, 1973, with which we are not concerned in
this appeal in view of the repeal provisions under
Section 484(1), CrPC.
11. The Delhi Special Police Establishment (briefly “the
Establishment”), a central police force, is constituted
under the Delhi Special Police Establishment Act, 1946
(Act XXV of 1946) (briefly the Delhi Act). Under Section
2 of the Act, the Central Government may constitute a
special police force, called the Delhi Special Police
Establishment, for investigation of certain offences or
class of offences as notified under Section 3 of the Delhi
Act. Under Section 4 of the Act the superintendence of
the Delhi Special Police Establishment vests in the
Central Government and administration of the Special
Police Establishment vests in an officer appointed by
the Central Government who exercises powers
10
AIR 1949 PC 120
2
exercisable by an Inspector General of Police as the
Central Government may specify. Under Section 5 the
powers and the jurisdiction of the Establishment can be
extended by the Central Government to other areas in a
State although not a Union territory. Once there is an
extension of the powers and jurisdiction of the members
of the Establishment, the members thereof while
discharging such functions are deemed to be members
of the police force of the area and are vested with the
powers, functions and privileges and are subject to the
liabilities of a police officer belonging to that force. The
police officer also subject to the orders of the Central
Government exercises the powers of the officer-in-
charge of a police station in the extended area. Under
Section 6 consent of the State Government is
necessary to enable the officer of the Establishment to
exercise powers and jurisdiction in any area in the State
not being a Union territory or railway area.
12. Investigation under the Delhi Act is, therefore, a
central investigation and the officers concerned are
under the superintendence of the officer appointed by
the Central Government. The superintendence of the
Establishment is also under the Central Government.
The Central Government, therefore, is concerned with
the investigation of the cases by the Establishment and
its ultimate result. It is in that background that in 1955,
Section 417 was amended by adding sub-section (2) to
the section to provide for appeal against acquittal in
cases investigated by the Establishment also on the
direction of the Central Government. In view of the
provisions of the Delhi Act it was necessary to introduce
sub-section (2) in Section 417 so that this Central
agency which is solely and intimately connected with
the investigation of the specified offences may also
approach the Central Government for direction to
appeal in appropriate cases.
13. This, however, does not bar the jurisdiction of the
State Government also to direct presentation of appeals
when it is moved by the Establishment. The
Establishment can move either the Central Government
or the State Government. It will be purely a matter of
procedure whether it moves the State Government
directly or through the Central Government or in a given
case moves the Central Government alone. It will again
be a matter of procedure when the Central Government
decides to appeal it requests the State Government to
do the needful through the Public Prosecutor appointed
under the Code.
2
14. The word `also’ in sub-section (2) of Section 417 is
very significant. This word seems not to bar the
jurisdiction of the State Government to direct the Public
Prosecutor to present an appeal even in cases
investigated by the Establishment. Sub-section (1) of
Section 417 is in general terms and would take in its
purview all types of cases since the expression used in
that sub-section is “in any case”. We do not see any
limitation on the power of the State Government to
direct institution of appeal with regard to any particular
type of cases. Sub-section (1) of Section 417 being in
general terms is as such of wider amplitude. Sub-
section (2) advisedly uses the word `also’ when power
is given to the Central Government in addition to direct
the Public Prosecutor to appeal.”
31. The Parliament in 1973 Code re-enacted the provision
for appeal from order of acquittal with certain
modifications. It changed the language by addition of
words – “save as otherwise provided in sub-section (2)”.
The alteration in language by addition of these words
gives rise to an inference that the Legislature made
conscious changes in Section 378 (1973 Code). We are
afraid, the addition of words in Section 378(1) by way of
exception (clause) cannot be set at naught by giving
same interpretation which has been given to Section 417
(1898 Code). As a matter of fact, in Khemraj2, this
Court did notice that changes have been introduced in the
matter of appeals against acquittal under Section 378 of
the 1973 Code, but the Court did not deal with these
2
changes as it was not concerned with that provision. In
our opinion, the decision of this Court in Khemraj2 cannot
be applied as the language used in Section 417 (1898
Code) and Section 378 (1973 Code) is not in pari materia.
32. Much emphasis, however, has been placed on the word
“also” in sub-section (2) of Section 378 by learned senior counsel for
the state government. It has been urged that by use of the word
“also”, competence of the state government in directing the public
prosecutor to file an appeal from an order of acquittal in the two types
of cases covered by sub-section (2) is not taken away and rather the
word “also” suggests that central government may also direct the
public prosecutor to file an appeal from an order of acquittal in the
class of cases mentioned in sub-section (2). Does the word “also”
carry the meaning as contended by the learned senior counsel for the
state government? One of the rules of construction of statutes is that
language of the statute should be read as it is and any construction
that results in rejection of words has to be avoided; the effort should
be made to give meaning to each and every word used by the
Legislature. However, such rule of construction of statutes is not
without exceptions. In Stone v. Yeovil Corp.11, Brett J. observed :
11
(1875-76) L.R. 1 CPD 691
2
“The word “such” in the second branch of that clause
would seem at first sight to apply to lands purchased or
taken; but, if so read, it is insensible. It is a canon of
construction that, if it be possible, effect must be given
to every word of an Act of Parliament or other
document; but that, if there be a word or a phrase
therein to which no sensible meaning can be given, it
must be eliminated. It seems to me, therefore, that the
word “such” must be eliminated from this part of the
clause.”
Archibald, J. concurred with Brett J. thus :
“But I agree with my Brother Brett that it is a true canon
of construction, that, where a word is found in a statute
or in any other instrument or document which cannot
possibly have a sensible meaning, we not only may, but
must, eliminate it in order that the intention may be
carried out.”
33. In Salmon v. Duncombe and Others12, Privy Council
speaking through Lord Hobhouse stated :
“It is, however, a very serious matter to hold that when
the main object of a statute is clear, it shall be reduced
to a nullity by the draftsman’s unskilfulness or ignorance
of law. It may be necessary for a Court of Justice to
come to such a conclusion, but their Lordships hold that
nothing can justify it except necessity or the absolute
intractability of the language used. And they have set
themselves to consider, first, whether any substantial
doubt can be suggested as to the main object of the
legislature; and, secondly, whether the last nine words
of sect. 1 are so cogent and so limit the rest of the
statute as to nullify its effect either entirely or in a very
important particular.”
34. The main object and legislative intent by the opening
words – “save as otherwise provided in sub-section (2)” – in sub-
12
(1886) 11 AC 627
2
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 sub-
section (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.
35. The phrase “in any case” in sub-section (1) of Section
378, without hesitation, means “in all cases”, but the opening words
2
in the said Section put fetters on the state government in directing
appeal to be filed in two types of cases mentioned in sub-section (2).
36. Section 2(u) of 1973 Code defines “public prosecutor”
which means any person appointed under Section 24 and includes
any person acting under the directions of a public prosecutor.
Section 24 reads as follows:
“S.24. – Public Prosecutors.-(1) For every High Court,
the Central Government or the State Government shall,
after consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more
Additional Public Prosecutors, for conducting in such
Court, any prosecution, appeal or other proceeding on
behalf of the Central Government or State Government,
as the case may be.
(2) The Central Government may appoint one or more
Public Prosecutors for the purpose of conducting any
case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint
a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional
Public Prosecutor appointed for one district may be
appointed also to be a Public Prosecutor or an
Additional Public Prosecutor, as the case may be, for
another district.
(4) The District Magistrate shall, in consultation with the
Sessions Judge, prepare a panel of names of persons,
who are, in his opinion, fit to be appointed as Public
Prosecutors or Additional Public Prosecutors for the
district.
(5) No person shall be appointed by the State
Government as the Public Prosecutor or Additional
Public Prosecutor for the district unless his name
2
appears in the panel of names prepared by the District
Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section
(5), where in a State there exists a regular Cadre of
Prosecuting Officers, the State Government shall
appoint a Public Prosecutor or an Additional Public
Prosecutor only from among the persons constituting
such Cadre:
Provided that where, in the opinion of the State
Government, no suitable person is available in such
Cadre for such appointment that Government, may
appoint a person as Public Prosecutor or Additional
Public Prosecutor, as the case may be, from the panel of
names prepared by the District Magistrate under sub-
section (4).
Explanation.–For the purpose of this sub-section,–
(a) “regular Cadre of Prosecuting Officers” means a Cadre
of Prosecuting Officers which includes therein the post of a
Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutors, by
whatever name called, to that post;
(b) “Prosecuting Officer” means a person, by whatever
name called, appointed to perform the functions of a Public
Prosecutor, an Additional Public Prosecutor or an Assistant
Public Prosecutor under this Code.]
(7) A person shall be eligible to be appointed as a Public
Prosecutor or an Additional Public Prosecutor under sub-
section (I) or sub-section (2) or sub-section (3) or sub–
section (6), only if he has been in practice as an advocate
for not less than seven years.
(8) The Central Government or the State Government may
appoint, for the purposes of any case or class of cases, a
person who has been in practice as an advocate for not
less than ten years as a Special Public Prosecutor.
Provided that the Court may permit the victim to
engage an advocate of his choice to assist the prosecution
under this sub-section.
2
(9) For the purposes of sub-section (7) and sub-section
(8), the period during which a person has been in practice
as a pleader, or has rendered (whether before or after the
commencement of this Code) service as a Public
Prosecutor or as an Additional Public Prosecutor or
Assistant Public Prosecutor or other Prosecuting Officer,
by whatever name called, shall be deemed to be the
period during which such person has been in practice as
an advocate.”
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
2
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.
38. The decision of this Court in Eknath Shankarrao
Mukkawar1, has been referred to and relied upon by Mr. Ram
Jethmalani as well as Mr. L. Nageshwar Rao. We may appropriately
consider the said decision now. In Eknath Shankarrao Mukkawar1,
the construction of Section 377 (appeal against inadequacy of
sentence) fell for consideration. Section 377 (1) and (2) of 1973
3
Code with which this Court was concerned in Eknath Shankarrao
Mukkawar1, reads as follows:-
“S.- 377.- Appeal by the State Government against
sentence.- (1) Save as otherwise provided in sub-
section (2), the State Government may, in any case of
conviction on a trial held by any court other than a High
Court, direct the Public Prosecutor to present an appeal
to the High Court against the sentence on the ground of
its inadequacy.
(2) If such conviction is in a 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 direct the Public Prosecutor
to present an appeal to the High Court against the
sentence on the ground of its inadequacy.”
This Court with reference to the aforesaid provision held:
“10. It is true that Section 378(2) follows the pattern of
Section 417(2) of the old Code and the right to appeal is
conferred upon both the State Government and the
Central Government in express terms in Section 378(2).
It is clear that the legislature has maintained a water-
tight dichotomy while dealing with the matter of appeal
against inadequacy of sentence. We agree that in the
absence of a similar word “also” in Section 377(2) it is
not possible for the court to supply a casus omissus.
The two sections, Section 377 and Section 378 CrPC
being situated in such close proximity, it is not possible
to hold that omission of the word “also” in Section
377(2) is due to oversight or per incuriam.
11. Section 377 CrPC introduces a new right of appeal
which was not earlier available under the old Code.
Under sub-section (1) of Section 377 CrPC the State
Government has a right to appeal against inadequacy of
sentence in all cases other than those referred to in
3
sub-section (2) of that section. This is made clear under
Section 377(1) by its opening clause “save as otherwise
provided in sub-section (2)”. Sub-section (2) of Section
377, on the other hand, confers a right of appeal on the
Central Government against a sentence on the ground
of its inadequacy in two types of cases:
(1) Those cases where investigation is conducted by
the Delhi Special Police Establishment constituted
under the Delhi Special Police Establishment Act, 1946.
(2) Those other cases which are investigated by any
other agency empowered to make investigation under
any Central Act not being the Code of Criminal
Procedure.
12. There is no difficulty about the first type of cases
which are investigated by the Delhi Special Police
Establishment where, certainly, the Central Government
is the competent authority to appeal against inadequacy
of sentence.”
39. The essence in a decision is its ratio and not every
observation found therein, as stated by this Court in State of Orissa v.
Sudhansu Sekhar Misra and others13. The ratio of decision in
Eknath Shankarrao Mukkawar1 is that the Legislature has
maintained a watertight dichotomy in the matter of appeal against
inadequacy of sentence; the competent authority to appeal against
inadequacy of sentence in two types of cases referred to in sub-
section (2) of Section 377 is the central government. However, Mr. L.
Nageshwar Rao submitted that in Eknath Shankarrao Mukkawar1, in
the absence of use of word “also” in sub-section (2) of Section 377, it
13
AIR 1968 SC 647
3
was held by this Court that the state government was incompetent to
file an appeal in a case falling under Section 377(2). But now the
lacuna pointed out by this Court has been remedied; Parliament
amended by Act 45 of 1978 to include the word “also” therein and
bring the same in pari materia with the provisions of Section 378(2)
and the Statement of Objects and Reasons for the said amendment
makes it clear that the state government is also competent to file an
appeal in a case falling under Section 377(2). We are not persuaded
by the submission of Mr. L. Nageshwar Rao for more than one
reason. In the first place, the observations in Eknath Shankarrao
Mukkawar1, in relation to Section 378 do not operate as binding
precedent as construction of Section 378 was neither under
consideration nor in issue in that case. Secondly, and more
importantly, although sub-section (2) of Section 377 came to be
amended by Act 45 of 1978 to include the word “also” therein, but the
Statement of Objects and Reasons relating to that amendment is of
no relevance insofar as construction of Section 378 (1) and (2) is
concerned. Insofar as Section 378 is concerned, the word “also”
occurring in sub-section (2) cannot be accorded a meaning that
would result in wiping out the effect of controlling words in sub-
section (1) – “save as otherwise provided in sub-section (2)” – which
are indicative of legislative intent to exclude two types of cases
3
mentioned in sub-section (2) out of operation of the body of sub-
section (1).
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.
41. In view of what we have discussed above, it is not
necessary to consider the contention of Mr. Ram Jethmalani founded
on the proviso to Article 162 of the Constitution that in case of conflict
of exercise of executive powers by the state government and the
central government, the decision of the latter shall prevail.
42. For the aforesaid conclusions, the reasons given by the
High Court are not correct and the impugned order cannot be
sustained.
43. The result is, both appeals are allowed, the order dated
September 20, 2007 passed by the High Court is set aside and the
3
Govt. Appeal No. 1 of 2007 – State of Bihar v. Lalu Prasad and
others – presented before the High Court of Judicature at Patna is
rejected as not maintainable.
………………………………CJI
……………………………….J.
[R.M. LODHA]
………………………………J.
[DR. B.S. CHAUHAN]
NEW DELHI,
APRIL 1, 2010.
3