2025 INSC 120
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
MAHABIR& ORS.
Petitioner
VERSUS
STATE OF HARYANA
Respondent
Criminal
Appeal Nos. 5560-5561 OF 2024-Decided on 29-01-2025
Criminal
(A)
Criminal Procedure Code, 1973, Section 401 read with Section 397 – Revisional
jurisdiction – Conviction without affording opportunity – Revision against
conviction by father of the deceased -
Whether the High Court committed any error in passing the impugned judgment and
order of conviction in exercise of its revisional jurisdiction
under Section 401 read with Section 397 of the CrPC? -
Appellant who is an accused person cannot be deprived of hearing on the face of
the express provision contained in Section 401(2) of the Code -
High Court committed an egregious error in reversing the acquittal and passing
an order of conviction in exercise of its revisional jurisdiction and that too
without affording any opportunity of hearing to the appellants herein.
(Para 31, 44 and 46)
(B)
Criminal Procedure Code, 1973, Section 372 - Interpretation of statute –
Proviso –
Held that the ‘proviso’ is a substantive enactment, and is not merely excepting
something out of or qualifying what was excepting or goes before - Therefore,
by adding the ‘proviso’ in Section 372 of CrPC by this amendment, a
right has been created in favour of the victim.
(Para 54)
(C)
Criminal Procedure Code, 1973, Section 372 - Interpretation of statute – Is proviso to Section 372 Cr PC is an exception? - In the present
context, given the text of Section 372 and the scheme of the Act, it is clear
that the proviso establishes an independent right, and must be interpreted
within that framework - Section 372 forbids appeals unless otherwise authorized
by the Code, or by another law - The proviso, however, states that the victim
shall have the right to appeal under certain circumstances - Given the rule
enacted in Section 372, it cannot be said that the proviso to that provision
carves out an exception to the rule - According to the rule in Section 372,
appeals must be in accordance with the Code; according to the proviso- which is
itself part of the Code - victims have the right to appeal under certain
circumstances - The proviso, therefore, is not an exception to Section
372, but a stand-alone legal provision.
(Para 63 and 67)
(D) Criminal
Procedure Code, 1973, Sections 372, 401(5) - Interpretation of statute – Is proviso added in year 2009 to Section 372 Cr PC is retrospective? –
Held that the amendment so made in Section 372 CrPC by adding a
proviso in the year 2009 creating a substantive right of appeal is not
retrospective in nature - A statute which creates new rights shall be construed
to be prospective in operation unless otherwise provided, either expressly or
by necessary implication - It is, therefore, clear that in the year 2006 when
the judgement of acquittal was passed, the de facto complainant had no right to
challenge the impugned order passed in 2006 by way of filing the appeal -
In such circumstances sub section (5) of Section 401 CrPC has no
application in the present case.
(Para 72)
(E)
Criminal Procedure Code, 1973, Section 161, 162 – Evidence Act, 1872, Section
145 – Evidence - Statement to police u/s 161 – Admissibility in evidence - High Court relied upon the police
statement of PW-7 recorded under Section 161 of the CrPC instead of
his oral testimony before the trial court - Section 162 of the CrPC
expressly provides that the statements recorded under Section 161 of
the CrPC shall not be used for any purpose save as provided in Section 162, and
the Proviso to Section 162 clearly says that, any part of the statement, if
duly proved, may be used by the accused, to contradict such witness in the
manner provide in Section 145 of the Evidence Act - And when any part
of such statement is so used, any part thereof may also be used in the
re-examination of such witness, but only for the purpose of explaining any
matter referred to in the cross-examination - Material elicited as
contradiction by use of Section 145 of the Indian Evidence Act is not
substantive evidence - Even in regard to the statement recorded under Section
164 of the CrPC by authorised Magistrate, it has been held accordingly
- Therefore, the fact that the contradictions are proved through the
investigating officers though the witnesses have denied having made such
statements, does not translate the contradictions into substantive evidence -
Unless there is substantive evidence, it cannot be acted upon legally
particularly to base a conviction.
(Para 74 to 76 and 81)
(F)
Constitution of India, Article 21 - Unlawful detention of appellants –
Compensation -
Appellants are in their 60s and 70s - 26 years after the incident, and nearly
20 years after their acquittal, the appellants were unjustly subjected to
rigorous imprisonment for over 3 months, due to the impugned judgment and
order, before they came to be released by this Court on bail vide order
dated 13.12.2024 – Mental agony suffered by the appellants and their families -
The appellants were wrongly denied their liberty, dignity and reputation as
they were branded as criminals for this period - The appellants live within a
small community in their village, and today, they face social stigma as well,
for the above reasons - Public Prosecutor instead of assisting the learned
Judges in the right direction by pointing out the correct position of law went
to the extent of praying before the Court that the appellants herein deserved
capital punishment - It is a different thing that the High Court rejected the
prayer of the Public Prosecutor - Judges are human beings and at times they do
commit mistakes - The sheer pressure of work at times may lead to such errors -
At the same time, the defence counsel as well as the Public Prosecutor owes a
duty to correct the Court if the Court is falling in some error and for all
this, the State Government is held responsible - It is the State Government who
appointed the concerned Public Prosecutor - The State Government should be
asked to pay compensation to the three appellants - Impugned judgment and order
passed by the High Court set aside - The State Government shall pay Rs.
5,00,000/- each to the three appellants towards compensation within a period of
four weeks from today failing which we shall take appropriate action against
the responsible officer.
(Para
82 to 91, 98 and 99)
JUDGMENT
J.B. Pardiwala, J. :- Since the issues
raised in both the captioned appeals are the same and the challenge is also to
the self-same judgement and order passed by the High Court, those were taken up
for hearing analogously and are being disposed of by this common judgement and
order.
2.
We may clarify that the Criminal Appeal No. 5560 of 2024 arises from
the Reason: holding the appellants herein guilty of the offence of murder.
Whereas Criminal Appeal No. 5561 of 2024 arises from the order of
sentence, which ultimately came to be passed by the High Court.
3.
These appeals arise from the judgement and order passed by the High Court of
Punjab and Haryana at Chandigarh dated 27.08.2024 in Criminal Revision
Application No. 194 of 2006 by which the criminal revision filed by the original
de facto complainant against the judgment and order of acquittal passed by the
trial court came to be allowed and the appellants herein were held guilty of
the offence of murder punishable under Section 302 of the Indian
Penal Code (for short, “the IPC”) and sentenced to undergo rigorous
imprisonment for life and fine of Rs. 50,000/- each and further, rigorous
imprisonment for 3 months in default of payment of fine.
4.
"There is no higher principle for the guidance of the court than the one
that no act of courts should harm a litigant and it is the bounden duty of the
courts to see that if a person is harmed by a mistake of the court he should be
restored to the position he would have occupied, but for that mistake."
5.
The above is aptly summed up in the maxim "actus curiae neminem gravabit”.
It implies that judicial actions should not unfairly harm any party and that
courts should act judiciously to prevent errors that could lead to injustice. (Jang Sing v. Brij Lal and
Others reported in AIR 1966 SC 1631).
6.
We need not delve much into the facts of the present case as our order dated
13.12.2024 gives more than a fair idea as to how these appeals have come up
before us. The order reads thus:
“3. The three
appellants herein along with three other co-accused were put to trial for the
offence of murder punishable under Section 302 read with Section
148 and 149 of the Indian Penal Code, 1860. On conclusion of the
trial, the Trial Court held two co-accused guilty of the alleged crime, whereas
the other four, including three appellants herein, came to be acquitted.
4. The State did not
deem fit to challenge the acquittal of the three appellants herein. One of the
convicts went in appeal before the High Court and the father of the deceased in
turn invoked the revisional jurisdiction of the High Court under Section
401 read with Section 397 of the Code of Criminal Procedure,
1973 seeking to challenge the acquittal of the three appellants herein. It
appears that the appeal filed by one of the convicts against his order of
conviction came to be dismissed despite the fact that the convict had already
passed away.
5. In the revision
application, which was filed by the father of the deceased, the High Court held
all the three appellants herein guilty of the alleged offence of murder and
sentenced them to undergo life imprisonment. We are informed that they were
taken into custody on the very same day the judgment was pronounced by the High
Court and now they are serving the sentence as imposed by the High Court.
6. We are not able to
understand, on what basis the High Court in exercise of its revisional
jurisdiction under Section 401 read with Section 397 of the
Code of Criminal Procedure could have converted the finding of acquittal into
one of conviction. Sub-Section (3) of Section 401 reads thus: “(3)
Nothing in this section shall be deemed to authorize a High Court to convert a
finding of acquittal into one of conviction.”
7.There is one another
feature which has disturbed us. According to the learned counsel the High Court
proceeded ex-parte without issuing notice to the three appellants herein in the
revision petition, who had already been acquitted by the Trial Court.
8. We are also
informed that the father of the deceased, who had filed the revision
application before the High Court had also passed away much before the judgment
of the High Court.
9. Issue notice to the
State of Haryana, returnable on 19th December, 2024.
10. In such
circumstances referred to above, all the three appellants are ordered to
be released on bail. The substantive order of sentence passed by the High Court
is suspended till further orders. Accordingly, IA No. 285726/2024 stands
disposed of.
11. Registry to call
for the records and proceedings of the Sessions Case No. 4 of 1988/2005,
disposed of by Additional Sessions Judge, Rewari, from the High Court of Punjab
& Haryana at Chandigarh.”
CASE
PUT UP BY THE APPELLANTS HEREIN
7.
The case pertains to an incident dated 13.03.1998. It was a day of Holi
festival. The incident was first reported by one Dharampal to the police at
2:55 p.m. on 13.03.1998 itself within two hours of the incident, stating that
one Om Parkash s/o Shiv Lal (Complainant) and Om Parkash S/o Chandgi Ram
(deceased) had assaulted him, Murti w/o Ram swarup and Usha, W/o Dayanand
respectively. Dharampal alleged that the two assailants climbed on to the roof
of his house and caught hold of him and in the scuffle, both of them fell down
from the roof and both of them also suffered injuries.
8.
However, the complaint lodged by Dharampal referred to above was neither
investigated nor any FIR was registered, for the reasons best known to the
Police.
9.
Instead, an FIR came to be registered on the statement of the above-mentioned
Om Parkash S/o Shiv Lal (the Complainant) on 14.03.1998 i.e. one day later,
implicating inter alia, the appellants herein. This was followed by a further
statement dated 15.03.1998, naming Dharampal and Sri Chand, a senior citizen
who walked with the aid of a walking stick (baint) as accused.
10.
Upon appreciation of oral as well as documentary evidence adduced in the trial,
the Sessions Court held that the prosecution had failed to prove its case
against the appellants/accused viz. Mahabir, Raj Kumar, Dayanand and
Krishan Kumar beyond reasonable doubt, and accordingly, acquitted them vide its
judgment and order dated 05.10.2005 passed in Sessions Case No. 4 of 1998/2005.
The Sessions Court, however, convicted Dharampal of the offence under Section
302 read with Section 34 IPC. Since co-accused Sri Chand passed
away during the trial, the proceedings against him stood abated.
11.
No appeal was preferred by the State of Haryana against the said judgment dated
05.10.2005 acquitting the appellants herein.
12.
On 19.01.2006, Chandgi Ram, father of deceased Om Parkash, preferred Criminal
Revision being CRR-194-2006 (O&M), seeking to challenge the acquittal of
the appellants viz. Mahabir, Raj Kumar, Dayanand and Krishan Kumar.
13.
The convict Dharampal filed Criminal Appeal being CRA-752-DB-2005 (O&M)
against the judgment of conviction dated 05.10.2005 and order on sentence dated
08.10.2005.
14.
Accused Raj Kumar s/o Raghbir Singh passed away on 24.02.2015. The order dated
07.11.2019 indicates that service could not be effected upon the appellants
(respondents in the said Revision Petition, CRR-194-2006), due to non-payment
of process fee. As on 12.07.2022 too, the appellants who were respondents in
the revision petition were not served with the copy of the revision petition.
The counsel for the revisionist also informed the High Court that he had no
instructions in the matter. In December 2023, the revisionist Chandgi Ram
passed away; thus, there was no revisionist before the High Court from the date
of demise onwards, as well as, on the date of final hearing. In February 2024,
the convicted-accused, Dharam Pal, also passed away. Hence, his conviction
appeal also stood abated, however, the same was not brought to the notice of
the High Court by the State.
15.
On 21.08.2024, the High Court passed an order that since the revisionist was
not being represented by any counsel, the Court was appointing legal aid
counsel to assist the Court on behalf of the revisionist in the revision
petition. The Court further directed that the legal aid counsel be supplied
with the Paper book. On behalf of the accused (appellants), a counsel was
appointed to assist the Court (without any corresponding order to supply the
paper book to him). Arguments were heard on the same day. The revision petition
and the conviction appeal were decided by the High Court and by a common
judgment and order dated 27.08.2024, the CRA-752-DB-2005 filed by Dharampal was
dismissed (O&M) and CRR-194-2006 (O&M) was allowed.
16.
After coming to know about the judgment reversing the acquittal, the appellants
surrendered/were taken into custody.
17.
In such circumstances referred to above, the appellants are here before this
Court with the present two appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
18.
Ms. Indira Unninayar, the learned counsel submitted that despite an express
statutory bar on reversing a finding of acquittal the High Court in violation
of this statutory bar, reversed the acquittal into a conviction.
19.
She submitted that the High Court in exercise of its revisional jurisdiction
has undoubtedly the power to set aside the acquittal, but such interference is
called for only in exceptional cases and that too only for the purpose of
re-trial. However, it is not permissible to convert such acquittal to
conviction. The only course left to it in such exceptional cases, is to order
retrial, which, was not done.
20.
She submitted that no right of appeal was available to the victim in law at the
time the revision was filed and therefore, there was no scope for the court to
even treat the revision as an appeal that ‘lay under the Code of Criminal
Procedure (for short, “the CrPC” or “Code”)’ at the time as provided
for under Section 401(5) above.
21.
Despite an express statutory bar on any order being passed to the prejudice of
the accused unless he has had an opportunity of being heard either personally
or by pleader in his own defence, the High Court proceeded to hear and
pronounce its judgment without adhering to the above. The above was also in
violation of the principles of natural justice, the right to access the
criminal justice system, and the constitutional right of the accused to be
represented by a counsel of their choice under Articles 21 &
22(1) read with 20(3) respectively of the Constitution of India. Yet the
matter proceeded without service upon the accused.
22.
The revision petition was filed on 19.01.2006. However, the High Court’s order
dated 07.11.2019, indicates that - Service could not be effected upon the
appellants who were respondents in the said revision petition, CRR-194-2006,
due to non-payment of process fee.
23.
The order dated 12.07.2022 reflects that the appellants who were respondents in
the revision petition were not served with the copy of the revision petition,
as of 12.07.2022. The counsel for the revisionist had also informed the High
Court that he had no instructions.
24.
The order dated 21.08.2024 reflects that - since the revisionist was not
represented by a validly engaged counsel, the High Court appointed a legal aid
counsel to assist the Court on behalf of the deceased revisionist. The said
counsel was supplied with the paper book. Arguments were heard on the same day
and judgment was reserved.
25.
By way of abundant caution, the appellants had approached the Registry of the
High Court to obtain a ‘Copy of Service Report in CRR-194-2006’ on 3.10.2024
and the Registry replied on 14.10.2024 that ‘Required doc not available on DMS’
and ‘No Service Report is available in CRR-194-2006 in this file’.
26.
Neither the Counsel appointed by the Court had a chance to peruse the record
and prepare for any arguments to assist the Court, nor did he had any occasion
or opportunity to confer/contact/consult with the appellants herein to seek
instructions for defending their acquittal and contesting the revision
petition, as he was appointed and asked to represent the accused/respondents
there and then, on the very same day, that the arguments were heard and
judgement reserved.
27.
The above was in gross violation of the principles of natural justice as well
as the appellants’ constitutional right to be represented by a counsel of their
own choice under Articles 21 & 22(1) respectively of the
Constitution of India.
SUBMISSIONS
ON BEHALF OF THE STATE OF HARYANA
28.
The learned counsel appearing for the State submitted that the High Court in
exercise of its revisional jurisdiction under Section 401 read
with Section 397 of the CrPC could not have reversed the acquittal
and passed an order of conviction. However he submitted that as sub section (5)
to Section 401 provides that if an appeal lies under the CrPC,
but an application for revision had been made to the High Court by any person
and if the High Court is convinced that such application had been filed under
the erroneous belief that no appeal lies thereto, then in the interest of
justice the High Court can treat the application for revision as an appeal and deal
with the same accordingly.
29.
According to the learned counsel appearing for the State, the High Court in the
case on hand, could have invoked sub section (5) of Section 401 and
with the aid of the proviso to Section 372 of the CrPC could have
treated the revision filed by the de facto complainant as an appeal. However,
even for the purpose of invoking sub section (5) to Section 401 CrPC,
the High Court has to pass an appropriate order in that regard.
30.
The learned counsel appearing for the State went to the extent of submitting
that although the proviso to Section 372 CrPC was introduced sometime
in 2009, i.e., after the judgment of acquittal yet the High Court could have
given retrospective effect to the proviso to Section 372 and should
have treated the revision application filed by the de facto complainant as an
appeal under Section 372 of the CrPC.
ANALYSIS
31.
Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the only question that falls for our
consideration is whether the High Court committed any error in passing the
impugned judgment and order of conviction in exercise of its revisional
jurisdiction under Section 401 read with Section 397 of the
CrPC.
RELEVANT PROVISIONS OF LAW
32. Section
397 CrPC reads thus:-
“397. Calling for
records to exercise powers of revision.—(1) The High Court or any Sessions
Judge may call for and examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself; to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when calling, for such record,
direct that the execution of any sentence or order be suspended, and if the
accused is in confinement that he be released on bail or on his own bond
pending the examination of the record.
Explanation.—All
Magistrates, whether Executive or Judicial, and whether exercising original or
appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge
for the purposes of this sub-section and of section 398.
(2) The powers of
revision conferred by sub-section (1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application
under this section has been made by any person either to the High Court or to
the Sessions Judge, no further application by the same person shall be
entertained by the other of them.”
33. Section
401 CrPC reads thus:-
“401. High Court's
powers of revision.—(1) In the case of any proceeding the record of which has
been called for by itself or which otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the powers conferred on a Court
of Appeal by sections 386, 389, 390 and 391 or on
a Court of Session by section 307, and, when the Judges composing the
Court of Revision are equally divided in opinion, the case shall be disposed of
in the manner provided by section 392.
(2) No order under this section shall be made
to the prejudice of the accused or other person unless he has had an
opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this
section shall be deemed to authorise a High Court to convert a finding of
acquittal into one conviction.
(4) Where under this
Code an appeal lies and no appeal is brought, no proceeding by way of revision
shall be entertained at the instance of the party who could have appealed.
(5) Where under this
Code an appeal lies but an application for revision has been made to the High
Court by any person and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto and that it is
necessary in the interests of Justice so to do, the High Court may treat the
application for revision as a petition of appeal and deal with the same
accordingly.”
34. Section
401(3) says – “Nothing in this section shall be deemed to authorize a High
Court to convert a finding of appeal into one of conviction.” i. Thus, the bar
is categorical and express.
35. Section
401(5) says – “Where under this Code an appeal lies but an application for
revision has been made to the High Court by any person and the High Court is
satisfied that such application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the interests of justice so to
do so, the High Court may treat the application for revision as a petition of
appeal and deal with the same accordingly.”
i. For the High Court
to treat the revision as an appeal, all of the above conditions were required
to be fulfilled.
ii. And a reasoned, speaking order was
required to be passed recording that they were fulfilled.
iii. However, no such
procedure was adopted.
36.
The general provision on appeals is Section 372 Cr PC which says – 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.
i. Thus, no appeal was permissible other than
provided for, in law.
37.
The Proviso to the above had not yet come into effect as on 19.01.2006 when the
revision petition was filed, for it was added only w.e.f. 31.12.2009. The
Proviso says – [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.]
i. Thus, the statutory
right of appeal by a victim against such acquittal arose only from the date of
the amendment w.e.f. 31.12.2009. As the said revision was filed by the father
of the deceased on 19.01.2006 well before the above amendment, such right was
not available at the relevant point of time.
ii. Therefore, the
very first condition under Section 401(5) itself would not have been
possible to be fulfilled, i.e. the right of the victim to appeal did not lie
under the Code at the time of filing the revision petition.
38.
As regards appeals against acquittals, the relevant provision for appeals, and
specifically for appeal to the High Court, are detailed out below:
a. Section 378.
Appeal in case of acquittal – Section 378 (1) says – Save as
otherwise provided in sub-section (2), and subject to the provisions of
sub-sections (3) and (5), -
b. The relevant
section pertaining to an appeal to the High Court is Section
378(1)(b) which says – 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 an acquittal passed by any Court other than a High Court
[not being an order under clause
(a)] or an order of
acquittal passed by the Court of Session in revision.].
i. Thus, only the
State had the statutory right to appeal against the order of acquittal in 2006,
and ii. Indisputably, the State did not file appeal challenging the said order
of acquittal.
PRECEDENTS
EXPLAINING THE POSITION OF LAW
39.
This Court in Bindeshwari Prasad Singh v. State of Bihar (now
Jharkhand) & Anr. reported in (2002) 6 SCC 650, laid down that there is a
limit on the powers of the High Court as a Revisional Court, prohibiting
it from converting a finding of acquittal into one of conviction. Para 12 reads
thus: -
“12. We have carefully
considered the material on record and we are satisfied that the High Court was
not justified in re-appreciating the evidence on record and coming to a
different conclusion in a revision preferred by the informant
under Section 401 of the Code of Criminal Procedure. Sub-section (3)
of Section 401 in terms provides that nothing in Section
401 shall be deemed to authorize a High Court to convert a finding of
acquittal into one of conviction. The aforesaid sub-section, which places a
limitation on the powers of the revisional court, prohibiting it from
converting a finding of acquittal into one of conviction, is itself indicative
of the nature and extent of the revisional power conferred by Section
401 of the Code of Criminal Procedure. If the High Court could not convert
a finding of acquittal into one of conviction directly, it could not do so
indirectly by the method of ordering a retrial. It is well settled by a catena
of decisions of this Court that the High Court will ordinarily not interfere in
revision with an order of acquittal except in exceptional cases where the
interest of public justice requires interference for the correction of a
manifest illegality or the prevention of gross miscarriage of justice. The High
Court will not be justified in interfering with an order of acquittal merely
because the trial court has taken a wrong view of the law or has erred in
appreciation of evidence. It is neither possible nor advisable to make an
exhaustive list of circumstances in which exercise of revisional jurisdiction
may be justified, but decisions of this Court have laid down the parameters of
exercise of revisional jurisdiction by the High Court under Section
401 of the Code of Criminal Procedure in an appeal against acquittal by a
private party. (See D. Stephens v. Nosibolla [1951 SCC 184 : AIR 1951
SC 196 : 1951 Cri LJ 510] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC
1788 : (1963) 1 Cri LJ 8] , Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583 :
1973 SCC (Cri) 903], Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda
Appadu [(1975) 4 SCC 477 :1975 SCC (Cri) 543 : AIR 1975 SC 1854] and
Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : 1968 Cri LJ 665]
.)”
40.
This Court in Joseph Stephen & Ors. v. Santhanasamy &
Ors. reported in (2022) 13 SCC 115, laid down that on a plain reading of
sub-section (3) of Section 401 CrPC, it has to be held that
sub-section (3) of Section 401 CrPC prohibits/bars the High Court to
convert a finding of acquittal into one of conviction. Para 10 reads thus:-
“10. Applying the
law laid down by this Court in the aforesaid decisions and on a plain
reading of sub-section (3) of Section 401CrPC, it has to be held that
sub-section (3) of Section 401CrPC prohibits/bars the High Court to convert a
finding of acquittal into one of conviction. Though and as observed
hereinabove, the High Court has revisional power to examine whether there is
manifest error of law or procedure, etc. however, after giving its own findings
on the findings recorded by the court acquitting the accused and after setting
aside the order of acquittal, the High Court has to remit the matter to the
trial court and/or the first appellate court, as the case may be.”
41.
This Court in Joseph Stephen (supra), holds that first, the High
Court has to pass a judicial order to treat an application for revision as
petition of appeal. The High Court has to pass a judicial order because
sub-section (5) of Section 401 CrPC provides that if the High Court
is satisfied that such revision application was made under the erroneous belief
that no appeal lies thereto and that it is necessary in the interests of
justice so to do. While treating the application for revision and to deal with
the same as a petition of appeal, the High Court has to record the satisfaction
as provided under sub-section (5) of Section 401 CrPC. Para 14 reads
thus:-
“14. Now so far as the
power to be exercised by the High Court under sub-section (5) of Section
401 CrPC, namely, the High Court may treat the application for revision as
petition of appeal and deal with the same accordingly is concerned, firstly the
High Court has to pass a judicial order to treat the application for revision
as petition of appeal. The High Court has to pass a judicial order because
sub-section (5) of Section 401 CrPC provides that if the High
Court is satisfied that such revision application was made under the erroneous
belief that no appeal lies thereto and that it is necessary in the interests of
justice so to do. While treating with the application for revision as petition
of appeal and deal with the same accordingly, the High Court has to record the
satisfaction as provided under sub-section (5) of Section 401 CrPC.
Therefore, where under the CrPC an appeal lies, but an application
for revision has been made to the High Court by any person, the High Court has
jurisdiction to treat the application for revision as a petition of appeal and
deal with the same accordingly as per sub-section (5) of Section
401 CrPC, however, subject to the High Court being satisfied that such an
application was made under the erroneous belief that no appeal lies thereto and
that it is necessary in the interests of justice so to do and for that purpose
the High Court has to pass a judicial order, may be a formal order, to treat
the application for revision as a petition of appeal and deal with the same
accordingly.”
42.
This Court in Ganesha v. Sharanappa & Anr. reported in (2014) 1
SCC 87, in para 11, clarifies that :
“… Interference with
the order of acquittal is called for only in exceptional cases – where there is
manifest error of law of procedure resulting into miscarriage of justice, and,
where the acquittal has been caused by shutting out evidence which otherwise
ought to have been considered or where material evidence which clinches the
issue has been overlooked. In such exceptional cases, the High Court can set
aside an order of acquittal, but it cannot covert it into one of conviction.
The only course left to the High Court in such exception cases, is to order
retrial”.
43.
This Court in Santhakumari & Ors. v. State of Tamil Nadu &
Ors. reported in (2023) 15 SCC 440, laid down that the order passed by the
High Court is in the teeth of the provisions of sub-section (2) of Section
401 of the CrPC as interpreted by this Court in Manharibhai Muljibhai
Kakadia & Anr. v. Shaileshbhai Mohanbhai Patel & Ors. reported in
(2012) 10 SCC 517. Paras 5 and 6 respectively read thus:-
“5. Having considered
the submissions, since it is not in dispute that the proposed accused were not
served notice of the revision proceedings, the order passed by the High Court
is in the teeth of the provisions of sub-section (2) of Section
401 of the Code as interpreted by this Court in Manharibhai Muljibhai
Kakadia [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012)
10 SCC 517 : (2013) 1 SCC (Cri) 218] .
6. The decision
in Manharibhai Muljibhai Kakadia [Manharibhai Muljibhai Kakadia v.
Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] has
also been followed in Bal Manohar Jalan v. Sunil Paswan [Bal Manohar Jalan v.
Sunil Paswan, (2014) 9 SCC 640 : (2014) 5 SCC (Cri) 256] , wherein it was held
: (Bal Manohar Jalan case [Bal Manohar Jalan v. Sunil Paswan, (2014) 9 SCC 640
: (2014) 5 SCC (Cri) 256] , SCC p. 644, para 9)
“9. In the
present case challenge is laid to the order dated 4-3- 2009 at the instance of
the complainant in the revision petition before the High Court and by virtue
of Section 401(2) of the Code, the accused mentioned in the first
information report get the right of hearing before the Revisional Court
although the impugned order [Sunil Paswan v. State of Bihar, 2011 SCC OnLine
Pat 600] therein was passed without their participation. The appellant who
is an accused person cannot be deprived of hearing on the face of the express
provision contained in Section 401(2) of the Code and on this ground,
the impugned order [Sunil Paswan v. State of Bihar, 2011 SCC OnLine Pat 600] of
the High Court is liable to be set aside and the matter has to be remitted.””
44.
The decision in Manharibhai Muljibhai (supra) was referred to and
relied upon in Bal Manohar Jalan v. Sunil Paswan & Anr. reported
in (2014) 9 SCC 640, wherein it was inter alia, held that “The appellant who is
an accused person cannot be deprived of hearing on the face of the express
provision
contained in Section 401(2) of the
Code and on this ground, the impugned order of the High Court is liable to be
set aside…”.
45.
This Court in Nandini Satpathy v. P.L. Dani & Anr. reported in
(1978) 2 SCC 424 held that the right to consult an advocate of choice shall not
be denied to any person who is arrested. This does not mean that persons who
are not under arrest or custody can be denied such right. The spirit and ethos
of Article 22(1) is that it is fundamental to the rule of law that
the service of a lawyer shall be available for consultation to the accused
person under circumstances of near custodial interrogation. Moreover, the right
against self-incrimination is best practiced & best promoted by conceding
to the accused, the right to consult a legal practitioner of his choice.
Lawyers’ presence is a constitutional claim in some circumstances of our
country, and in the context of Article 20(3), is an assurance of awareness
and observance of the right to silence.
46.
Thus, it is as clear as a noonday that the High Court committed an egregious
error in reversing the acquittal and passing an order of conviction in exercise
of its revisional jurisdiction and that too without affording any opportunity
of hearing to the appellants herein.
47.
We could have closed this matter at this stage; however, we would like to
explain the position of law in so far as the applicability of sub section (5)
to Section 401 of the CrPC read with the provision to
sub section 372 of the CrPC is concerned.
IS THE PROVISO TO SECTION 372 CRPC RETROSPECTIVE
IN OPERATION?
48.
A very fabulous argument was canvassed on behalf of the State that the proviso
to Section 372 of the CrPC is retrospective in operation. Therefore,
although the revision was filed in 2006, yet as it came to be decided in 2014,
the proviso to Section 372 CrPC was applicable. The High Court could
have treated the revision application as an appeal under Section
372 at the instance of the complainant. If the High Court would have
treated it as an appeal, then it would have been within its jurisdiction to
reverse the acquittal and passed an order of conviction.
49.
It seems one and all are under a serious misconception of law.
50. Insofar
as the statutes regulating appeal are concerned, the law is well settled that
the right to file an appeal is a statutory right and it can be circumscribed by
the conditions of the statute granting it. As was observed by this Court
in Government of Andhra Pradesh & Ors. v. P. Laxmi Devi reported
in (2008) 4 SCC 720 and Super Cassettes Industries Ltd. v. State of Uttar
Pradesh & Anr. reported in (2009) 10 SCC 531, it is not a natural or
inherent right and cannot be assumed to exist, unless provided by a statute.
51.
Therefore, the scheme of right of appeal under Chapter XXXIX of the CrPC,
which provides the right to file appeals including abatement of appeals, should
be understood on the basis of the above golden rules of statutory
interpretation.
52.
Comparing Section 404 of CrPC 1898 with Section 372 of
CrPC, would indicate that the main provision is intact, insofar it provides
that no appeal shall lie from any judgment or order of a criminal court, except
as provided by this Code or by any other law for the time being in force. The
significant development that has taken place in this provision is that a ‘proviso’
was added by the Amending Act No. 5 of 2009, which provides 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 passed by such Court’.
53.
Therefore, by the aforesaid provision a right has been created in favour of the
victim, which was not existing earlier in the Code, i.e., that a 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 .The plain reading of the statement of objects and reasons
for introducing the proviso to Section 372 CrPC makes it clear that
it wanted to confer certain rights on the victims. It has been noted therein
that 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 certain “rights” and
compensation, so that there is no distortion of the criminal justice system.
This, by itself, is clear that the object of adding this proviso is to create a
right in favour of the victim to prefer an appeal as a matter of right. It not
only extends to challenge the order of acquittal, but such appeal can also
be filed by the victim if the accused is convicted for a lessor offence or if
the inadequate compensation has been imposed.
54.
Thus, it is clear as per the golden rule of interpretation, that the ‘proviso’
is a substantive enactment, and is not merely excepting something out of or
qualifying what was excepting or goes before. Therefore, by adding the
‘proviso’ in Section 372 of CrPC by this amendment, a right has been
created in favour of the victim.
55.
The relevant statutory provisions are excerpted for convenience.
First, Section 2(wa) of the CrPC defines “victim” as:
“victim” means a
person who has suffered any loss or injury 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.”
56.
The second provision is Section 372 of the CrPC, which stipulates
that:
“No appeal shall lie
from any judgment or order of a Criminal Court except as provided for by this
Code or any other law for the time being in force.”
57.
The third statutory provision is the proviso to Section 372 CrPC,
which was introduced in 2008, conferring upon victims, the right of appeal in
these terms:
“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.” LEGISLATIVE HISTORY
58.
A victim-oriented approach to certain aspects of criminal procedure was
advocated in the Law Commission of India's 154th Report, 1996, which noted that
“increasingly, the attention of criminologists, penologists and reformers of
criminal justice system has been directed to victimology, control of
victimization and protection of the victims of crimes.” (Chapter XV, Paragraph 1)
While focused on issues of compensation, the Law Commission Report cited the
1985 United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power for its definition of “victim”:
“persons who,
individually or collectively, have suffered harm, including physical or mental
injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that are in violation of criminal
laws.” (Chapter XV, Paragraph 6.2).
59.
The said report prompted the Code of Criminal Procedure (Amendment)
Bill of 2006. Its Statement of Objects and Reasons noted that:
“… 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. ..”
60.
It also noted that:
“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 certain rights and compensation, so that there is no
distortion of the criminal justice system.”
61.
The definition of “victim”, as well as the proviso to Section 372 was
eventually inserted into the Code of Criminal Procedure through the
Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009). The
Amendment inserts victim-oriented provisions at a number of places in
the CrPC. For instance, a proviso to Section 157(1) is added, stipulating
that:
“Provided further that
in relation to an offence of rape, the recording of statement of the victim
shall be conducted at the residence of the victim or in the place of her choice
and as far as practicable by a woman police officer in the presence of her
parents or guardian or near relatives or social worker of the locality.”
62.
Through a new Section, 357A(1), it is provided that “Every State Government in
co-ordination with the Central Government shall prepare a scheme for providing
funds for the purpose of compensation to the victim or his dependents who have
suffered loss or injury as a result of the crime and who, require
rehabilitation.”
IS PROVISO TO SECTION 372 AN EXCEPTION?
63.
The victims' right to appeal has been framed in the language of a proviso
to Section 372 of the CrPC. As held in A.N. Sehgal & Ors. v.
Raje Ram Sheoran & Ors. reported in AIR 1991 SC 1406, it is
well-accepted that normally, a proviso “carves out an exception to the main
provision to which it has been enacted as a proviso and to no other.” This,
however, is subject to context. This Court, in S. Sundaram Pillai
& Ors. v. V.R. Pattabiraman & Ors. reported in AIR 1985 SC 582,
held that a proviso may be of four different types : in one set of
circumstances,
“it may be so embedded
in the Act itself as to become an integral part of the enactment and thus acquire
the tenor and colour of the substantive enactment itself;”
64.
Emphasizing that undue importance should not be given on the appellation
(explanation, proviso, saving clause, etc) and rather, the intent of the law
maker should be given effect, this Court, in State of Bombay & Anr. v.
United Motors (India) Limited & Ors. reported in (1953) 1 SCC 514
ruled that:
“… It may be that the
description of a provision cannot be decisive of its true meaning or
interpretation which must depend on the words used therein but, when two
interpretations are sought to be put upon a provision, that which fits the
description which the Legislature has chosen to apply to it, is, according to
sound canons of constructions, to be adopted, provided of course, it is
consistent with the language employed in preference to the one which attributes
to the provision a different effect from what it should have according to its
description by the Legislature.”
65.
The aforesaid thought was brought home in State of Kerala & Anr. v. B.
Six Holiday Resorts Private Ltd. & Ors. reported in (2010) 5 SCC 186,
where this Court held as follows:
“32.A proviso may
either qualify or except certain provisions from the main provision; or it can
change the very concept of the intendment of the main provision by
incorporating certain mandatory conditions to be fulfilled; or it can
temporarily suspend the operation of the main provision. Ultimately the proviso
has to be construed upon its terms”.
66.
It is the intention of the legislature, therefore, which is paramount.
67.
In the present context, given the text of Section 372 and the scheme of the
Act, it is clear that the proviso establishes an independent right, and must be
interpreted within that framework. Section 372 forbids appeals unless otherwise
authorized by the Code, or by another law. The proviso, however, states that
the victim shall have the right to appeal under certain circumstances. Given
the rule enacted in Section 372, it cannot be said that the proviso to that
provision carves out an exception to the rule. According to the rule in Section
372, appeals must be in accordance with the Code; according to the proviso-
which is itself part of the Code - victims have the right to appeal under
certain circumstances. At various other places in the CrPC, appeal
procedures are specified. For instance, Section 378 stipulates the procedure in
case of appeals from acquittal, and Section 378(3) specifies that “no appeal
under sub-section (1) or sub-section (2) shall be entertained except with leave
of the High Court.” The proviso to Section 372 dispenses with the requirement
of leave in case it is the victim who is appealing. From the scheme of the Act,
therefore, it seems clear that the proviso is better understood to be one of
the many provisions governing appeals under Chapter 29 of the CrPC. While
Section 372 enacts that no appeal shall lie except as provided for by the Code,
it refers to the various provisions of Chapter 29, including the proviso, each
of which prescribe the requirements and procedures for appeals under different
circumstances. The proviso, therefore, is not an exception to Section 372,
but a stand-alone legal provision.
68.
This Court in the case of Mallikarjun Kodagali (Dead) represented
through Legal Representatives v. State of Karnataka &
Ors. reported in (2019) 2 SCC 752, after discussing various judgments of
different High Courts, observed in para 72, as under:
“72. What is
significant is that several High Courts have taken a consistent view to the
effect that the victim of an offence has a right of appeal under the proviso
to Section 372 CrPC. This view is in consonance with the plain
language of the proviso. But what is more important is that several High Courts
have also taken the view that the date of the alleged offence has no relevance
to the right of appeal. It has been held, and we have referred to those
decisions above, that the significant date is the date of the order of
acquittal passed by the trial Court. In a sense, the cause of action arises in
favour of the victim of an offence only when an order of acquittal is passed and
if that happens after 31.12.2009 the victim has a right to challenge the
acquittal, through an appeal. Indeed, the right not only extends to challenging
the order of acquittal but also challenging the conviction of the accused for a
lesser offence or imposing inadequate compensation. The language of the proviso
is quite explicit, and we should not read nuances that do not exist in the
proviso.” (Emphasis supplied)
69. In Hitendra
Vishnu Thakur & Ors. v. State of Maharashtra & Ors. reported in
(1994) 4 SCC 602, one of the questions which this Court was examining was
whether clause (bb) of Section 20(4) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 introduced by an Amendment Act
governing Section 167(2) CrPC in relation to TADA matters was in the
realm of procedural law
and
if so, whether the same would be applicable to pending cases. Answering the
question in the affirmative this Court speaking through A.S. Anand, J. (as His
Lordship then was), held that Amendment Act 43 of 1993 was retrospective in
operation and that clauses (b) and (bb) of sub section (4) of Section 20 of
TADA apply to the cases which were pending investigation on the date when the
amendment came into force. The Court summed up the legal position with regard
to the procedural law being retrospective in its operation and the right of a
litigant to claim that he be tried by a particular Court, in the following
words:
“(i) A statute which
affects substantive rights is presumed to be prospective in operation unless
made retrospective, either expressly or by necessary intendment, whereas a
statute which merely affects procedure, unless such a construction is textually
impossible, is presumed to be retrospective in its application, should not be
given an extended meaning and should be strictly confined to its clearly
defined limits.
(ii) Law relating to
forum and limitation is procedural in nature, whereas law relating to right of
action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant
has a vested right in substantive law but no such right exists in procedural
law.
(iv) A procedural
statute should not generally speaking be applied retrospectively where the
result would be to create new disabilities or obligations or to impose new
duties in respect of transactions already accomplished.
(v) A statute which
not only changes the procedure but also creates new rights and liabilities
shall be construed to be prospective in operation, unless otherwise
provided, either expressly or by necessary implication.”
(Emphasis
supplied)
70.
We may also refer to the decision of this Court in Sudhir G. Angur &
Ors. v. M. Sanjeev & Ors. reported in (2006) 1 SCC 141, where a
three-Judge Bench of this Court approved the decision of the Bombay High Court
in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass reported in
AIR 1952 Bom 365 and observed:
“11. … It has been
held that a court is bound to take notice of the change in the law and is bound
to administer the law as it was when the suit came up for hearing. It has been
held that if a court has jurisdiction to try the suit, when it comes on for
disposal, it then cannot refuse to assume jurisdiction by reason of the fact
that it had no jurisdiction to entertain it at the date when it was instituted.
We are in complete agreement with these observations. …”
(Emphasis
supplied)
71. In Ramesh
Kumar Soni v. State of Madhya Pradesh reported in (2013) 14 SCC 696, this
Court reiterated the aforesaid principle with approval.
72.
In view of the aforesaid, it is very much clear that the amendment so made
in Section 372 CrPC by adding a proviso in the year 2009 creating a
substantive right of appeal is not retrospective in nature. A statute which
creates new rights shall be construed to be prospective in operation unless
otherwise provided, either expressly or by necessary implication. It is,
therefore, clear that in the year 2006 when the judgement of acquittal was
passed, the de facto complainant had no right to challenge the impugned order
passed in 2006 by way of filing the appeal. In such circumstances sub
section (5) of Section 401 CrPC has no application in the present
case.
73.
There is yet one another shocking aspect of the matter, we need to take cognizance
of.
74.
It appears that the High Court relied upon the police statement of PW-7
recorded under Section 161 of the CrPC instead of his oral testimony
before the trial court.
75.
The PW-7 Om Parkash s/o Durga Ram, turned hostile and was cross examined by the
Public Prosecutor under Section 145 of the Evidence Act. While
discussing the evidence of PW-7 as recorded by the trial court, the High Court
observed thus:-
i. “Resultantly, the
answer meted to question No. 1 (supra), qua his only intimating the police,
that both the parties were throwing brickbats from the top of the houses, is to
be construed to be a pretextual or prevaricated version qua the crime event.”
ii. “Cumulatively hence, since the deposition
embodied in the examination-in-chief of PW-7, becomes contradicted from his
previously made statement in writing to the police. Resultantly when during the
course of his cross-examination, he omitted to make any speakings, that his
previously made statement, thus was concocted or manufactured by the
investigating officer concerned, nor when he stated that he had never made any
previous statement in respect of the crime incident to the police officer
concerned. Therefore, the consequential effect thereof is that, the previously
made statement by the witness (supra) to the police officer concerned, was both
genuine and a true reflection of the crime incident. Contrarily, the
statement made by the witness (supra) before the learned trial Judge concerned,
was an engineered and concocted version vis-à-vis the crime incident. In
sequel, since the previously made statement by the witness (supra) to the
police officer concerned, for the reasons (supra) is a truthful reflection of
the crime event, thereby immense credence is to be assigned thereto, rather than
to the ill resilings there from by the witness (supra). Resultantly thereby the
prosecution has been able to prove the genesis of the prosecution case. The
said reason becomes founded upon the principle of law that even if the
prosecution witness turns hostile yet when during the course of his being
cross-examined by the Public Prosecutor concerned, he is proven to be ill-
resiling from his previously made untutored statement to the police officer
concerned, thereupon the resilings as made by the prosecution witness in his
examination-in-chief, vis-à-vis, his previously made statement to the police
officer concerned, are ill-resilings therefrom, thus thereto no credence is to
be assigned, rather credence is to be assigned to the evidently untutored and undoctored
version comprised in his previously made statement in writing to the police
officer concerned.”
(Emphasis
supplied)
76.
Whereas Section 162 of the CrPC expressly provides that the
statements recorded under Section 161 of the CrPC shall not be used
for any purpose save as provided in Section 162, and the Proviso to Section 162
clearly says that, any part of the statement, if duly proved, may be used by
the accused, to contradict such witness in the manner provide in Section
145 of the Evidence Act. And when any part of such statement is so used,
any part thereof may also be used in the re-examination of such witness, but
only for the purpose of explaining any matter referred to in the
cross-examination.
77.
We may remind the High Court of the observations made by this Court (a 3- Judge
Bench speaking through one of us, J. B. Pardiwala, J.) in Anees v.
State Government of NCT reported in 2024 SCC OnLine SC 757. We quote
some of the observations made in paras 62 and thereafter from 63 onwards till
69:
“62. … There could be
innumerable reasons for a witness to resile from his/her police statement and
turn hostile. Here is a case in which a five-year-old daughter might have
resiled thinking that having lost her mother, the father was the only person
who may take care of her and bring her up. However, why she turned hostile is
not important. What is important is the role of the public prosecutor after a
prime witness, more particularly a child witness of tender age, turns hostile
in a murder trial. When any prosecution witness turns hostile and the public
prosecutor seeks permission of the trial court to cross-examine such witness
then that witness is like any other witness. The witness no longer remains the
prosecution witness.
xxx xxx xxx
63. Section
162 Cr.P.C. bars the use of statement of witnesses recorded by the police
except for the limited purpose of contradiction of such witnesses as indicated
therein. The statement made by a witness before the police under Section
161(1) Cr.P.C. can be used only for the purpose of contradicting such
witness on what he has stated at the trial as laid down in the
proviso to Section 162(1) Cr.P.C. The statements under Section
161 Cr. P.C. recorded during the investigation are not substantive pieces
of evidence but can be used primarily for the limited purpose : (i) of
contradicting such witness by an accused under Section 145 of the
Evidence Act; (ii) the contradiction of such witness also by the prosecution but
with the leave of the Court; and (iii) the re- examination of the witness if
necessary.
64. The court cannot
suo motu make use of statements to police not proved and ask questions with
reference to them which are inconsistent with the testimony of the witness in
the court. The words ‘if duly proved’ used in Section 162 Cr. P.C.
clearly show that the record of the statement of witnesses cannot be admitted
in evidence straightaway, nor can be looked into, but they must be duly proved
for the purpose of contradiction by eliciting admission from the witness during
cross-examination and also during the cross-examination of the Investigating
Officer. The statement before the Investigating Officer can be used for
contradiction but only after strict compliance with Section 145 of
the Evidence Act, that is, by drawing attention to the parts intended for
contradiction.
65. Section 145 of the Evidence Act reads
as under:
“145.
Cross-examination as to previous statements in writing.— A witness may be
cross-examined as to previous statements made by him in writing or reduced into
writing, and relevant to matters in question, without such writing being shown
to him, or being proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting him.”
66. Under Section
145 of the Evidence Act when it is intended to contradict the witness by
his previous statement reduced into writing, the attention of such witness must
be called to those parts of it which are to be used for the purpose of
contradicting him, before the writing can be used. While recording the
deposition of a witness, it becomes the duty of the trial court to ensure that
the part of the police statement with which it is intended to contradict the
witness is brought to the notice of the witness in his cross- examination. The
attention of witness is drawn to that part and this must reflect in his
cross-examination by reproducing it. If the witness admits the part intended to
contradict him, it stands proved and there is no need of further proof of
contradiction and it will be read while appreciating the evidence. If he denies
having made that part of the statement, his attention must be drawn to that
statement and must be mentioned in the deposition. By this process the
contradiction is merely brought on record, but it is yet to be proved.
Thereafter, when the Investigating Officer is examined in the court, his
attention should be drawn to the passage marked for the purpose of
contradiction, it will then be proved in the deposition of the Investigating
Officer who, again, by referring to the police statement will depose about the
witness having made that statement. The process again involves referring to the
police statement and culling out that part with which the maker of the
statement was intended to be contradicted. If the witness was not confronted
with that part of the statement with which the defence wanted to contradict
him, then the court cannot suo motu make use of statements to police not proved
in compliance with Section 145 of the Evidence Act, that is, by
drawing attention to the parts intended for contradiction.” [See : V.K.
Mishra v. State of Uttarakhand : ((2015) 9 SCC 588]
67. In the case at
hand, not only proper contradictions were not brought on record in the oral
evidence of the hostile witnesses, but even those few that were brought on
record, were not proved through the evidence of the Investigating Officer. Does
the State expect Section 106 of the Evidence Act to come to its aid
in every criminal prosecution. At times, such procedural lapses may lead to a
very serious crime going unpunished. Any crime committed against an individual
is a crime against the entire society. In such circumstances, neither the
public prosecutor nor the presiding officer of the trial court can afford to
remain remiss or lackadaisical in any manner. Time and again, this Court has,
through its judgments, said that there should not be any element of political
consideration in the matters like appointment to the post of public prosecutor,
etc. The only consideration for the Government should be the merit of the
person. The person should be not only competent, but he should also be a man of
impeccable character and integrity. He should be a person who should be able to
work independently without any reservations, dictates or other constraints. The
relations between the Public Prosecution Service and the judiciary are the very
cornerstone of the criminal justice system. The public prosecutors who are
responsible for conducting prosecutions and may appeal against the court
decisions, are one of judges' natural counterparts in the trial proceedings and
also in the broader context of management of the system of criminal law.
68. A criminal case is
built upon the edifice of evidence (whether it is direct evidence or
circumstantial evidence) that is admissible in law. Free and fair trial is the
very foundation of the criminal jurisprudence. There is a reasonable
apprehension in the mind of the public at large that the criminal trial is
neither free nor fair with the Prosecutor appointed by the State Government
conducting the trial in a manner where frequently the prosecution witnesses
turn hostile.
69. Over a period of
time, we have noticed, while hearing criminal appeals, that there is
practically no effective and meaningful cross-examination by the Public
Prosecutor of a hostile witness. All that the Public Prosecutor would do is to
confront the hostile witness with his/her police statement recorded
under Section 161 of the Cr. P.C. and contradict him/her with the
same. The only thing that the Public Prosecutor would do is to bring the
contradictions on record and thereafter prove such contradictions through the
evidence of the Investigating Officer. This is not sufficient. The object of
the cross-examination is to impeach the accuracy, credibility and general value
of the evidence given in- chief; to sift the facts already stated by the
witness; to detect and expose the discrepancy or to elicit the suppressed facts
which will support the case of the cross-examining party. What we are trying to
convey is that it is the duty of the Public Prosecutor to cross- examine a
hostile witness in detail and try to elucidate the truth & also establish
that the witness is speaking lie and has deliberately resiled from his police
statement recorded under Section 161 of the Cr. P.C. A good, seasoned
and experienced Public Prosecutor will not only bring the contradictions on record,
but will also cross-examine the hostile witness at length to establish that he
or she had actually witnessed the incident as narrated in his/her police
statement.” (Emphasis supplied)
78.
Thus, this Court took a serious notice of lack of thorough cross-examination by
Public Prosecutors in criminal appeals, specifically with hostile witnesses.
The prosecutors often only confront them with their police statement, aiming to
highlight contradictions but not fully explore the witness's testimony. The
Court emphasized that the purpose of cross-examination is to challenge the
accuracy and credibility of the witness's statement, uncover hidden facts, and
establish if the witness is lying. Public Prosecutors should conduct detailed
cross- examinations to reveal the truth and establish the witness's first hand
knowledge of the incident described in their police statement.
79.
In the decision referred to above the Court noted that after the
witness was declared hostile, all that the Public Prosecutor had done was to
put few suggestions to her for the purposes of cross-examination. Even
proper contradictions were not brought on record.
80.
This Court explained that the trial courts cannot independently use statements
made to the police that have not been proven, nor can it base its questions on
such statements if they conflict with the witness's testimony in court. The
phrase 'if duly proved' in Section 162 of the CrPC indicates that the
statements of witnesses recorded by the police cannot be immediately admitted
as evidence or examined. They must first be proven through eliciting admissions
from the witness during cross-examination and also during the cross-examination
of the Investigating Officer. While statements made to the Investigating
Officer can be used for contradiction, this can only be done after strict
compliance with Section 145 of the Evidence Act. This requires
drawing attention to the specific parts of the statement intended for
contradiction. This is what is required under Section 145 of the
Evidence Act but even where a witness is confronted by his previous statement
and given an opportunity to explain that part of the statement that is put to
him does not constitute substantive evidence.
81.
There is a catena of decisions laying down the principle in law that the
material elicited as contradiction by use of Section 145 of the
Indian Evidence Act is not substantive evidence. Even in regard to the
statement recorded under Section 164 of the CrPC by authorised
Magistrate, it has been held accordingly. Therefore, the fact that the
contradictions are proved through the investigating officers though the
witnesses have denied having made such statements, does not translate the
contradictions into substantive evidence. Unless there is substantive evidence,
it cannot be acted upon legally particularly to base a conviction.
UNLAWFUL
DETENTION OF THE APPELLANTS FOR A PERIOD OF THREE MONTHS
82.
This Court in D.K. Basu v. State of West Bengal reported in (1997) 1
SCC 416 observed as under:—
“44. The claim in
public law for compensation for unconstitutional deprivation of fundamental
right to life and liberty, the protection of which is guaranteed under the
Constitution, is a claim based on strict liability and is in addition to the
claim available in private law for damages for tortious acts of the public
servants. Public law proceedings serve a different purpose than the private law
proceedings. Award of compensation for established infringement of the
indefeasible rights guaranteed under Article 21 of the Constitution
is a remedy available in public law since the purpose of public law is not only
to civilise public power but also to assure the citizens that they live under a
legal system wherein their rights and interests shall be protected and preserved.
Grant of compensation in proceedings under Article 32 or Article
226 of the Constitution of India for the established violation of the
fundamental rights guaranteed under Article 21, is an exercise of the
courts under the public law jurisdiction for penalising the wrongdoer and
fixing the liability for the public wrong on the State which failed in the
discharge of its public duty to protect the fundamental rights of the citizen.”
(Emphasis
supplied)
83.
In Nilabati Behera v. State of Orisa & Ors. reported in (1993) 2 SCC 746,
while dealing with the power of a constitutional court to award compensation
rather than relegating such person to file a suit for recovery of damages, this
Court observed as under:—
“22. The above
discussion indicates the principle on which the court's power
under Articles 32 and 226 of the Constitution is exercised
to award monetary compensation for contravention of a fundamental right. This
was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3
SCR 508] and certain further observations therein adverted to earlier, which
may tend to minimise the effect of the principle indicated therein, do not
really detract from that principle. This is how the decisions of this Court in
Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] in that
line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039
: (1965) 2 Cri LJ 144] distinguished therefrom. We have considered this
question at some length in view of the doubt raised, at times, about the
propriety of awarding compensation in such proceedings, instead of directing
the claimant to resort to the ordinary process of recovery of damages by
recourse to an action in tort. In the present case, on the finding reached, it
is a clear case for award of compensation to the petitioner for the custodial
death of her son.”
(Emphasis
supplied)
84.
The principle as aforesaid is now well established that in cases where there
can be no dispute of facts, the constitutional courts have the power to award
compensation in case a person has been deprived of his life and liberty without
following the procedure established by law.
85.
The learned counsel appearing for the appellants vehemently submitted that the
appellants are in their 60s and 70s. 26 years after the incident, and nearly 20
years after their acquittal, the appellants were unjustly subjected to rigorous
imprisonment for over 3 months, due to the impugned judgment and order, before
they came to be released by this Court on bail vide order dated 13.12.2024. She
highlighted the following for the purpose of making good her case for awarding
appropriate compensation to each of the three appellants.
a. The appellants and
their respective families suffered shock, trauma and despair, upon they being
taken in sudden custody after being acquitted twenty years ago, for a crime
that they had not committed.
b. The appellants have
had to suffer the ignominy of incarceration, with its concomitant physical,
mental and emotional hardship.
c. The appellant ts were wrongly denied their liberty,
dignity and reputation as they were branded as criminals for this period.
d. The appellants live
within a small community in their village, and today, they face social stigma
as well, for the above reasons.
e. It is, therefore,
only just and proper that their positions be duly vindicated, their names be
cleared, and that they be properly compensated as well, for their unjust denial
of liberty, dignity and reputation.
f. This step by the
Court would enable a sense of restoration of justice and dignity within
themselves and among their community.
86.
This Court in D.K. Basu (supra), while dealing with the aspect of
‘torture’, held:
“10. ‘Torture’ has not been defined in the
Constitution or in other penal laws. ‘Torture’ of a human being by another
human being is essentially an instrument to impose the will of the ‘strong’
over the ‘weak’ by suffering. The word torture today has become synonymous with
the darker side of human civilisation.
‘Torture is a wound in
the soul so painful that sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is anguish squeezing in
your chest, cold as ice and heavy as a stone, paralysing as sleep and dark as
the abyss. Torture is despair and fear and rage and hate. It is a desire to
kill and destroy including yourself.’ — Adriana P. Bartow
11. No violation of
any one of the human rights has been the subject of so many conventions and
declarations as ‘torture’ — all aiming at total banning of it in all forms, but
in spite of the commitments made to eliminate torture, the fact remains that torture
is more widespread now than ever before. ‘Custodial torture’ is a naked
violation of human dignity and degradation which destroys, to a very large
extent, the individual personality.
It is a calculated
assault on human dignity and whenever human dignity is wounded, civilisation
takes a step backward — flag of humanity must on each such occasion fly
half-mast.
12. In all custodial
crimes what is of real concern is not only infliction of body pain but the
mental agony which a person undergoes within the four walls of police station
or lock-up. Whether it is physical assault or rape in police custody, the
extent of trauma, a person experiences is beyond the purview of law.”
87.
From the above, it is quite vivid that emphasis has been laid on mental agony
when a person is confined within the four walls of the police station or lock
up.
88. In Kiran
Bedi v. Committee of Inquiry & Anr. reported in (1989) 1 SCC 494, this
Court reiterated the following observation from the decision in D.F. Marion v.
Davis reported in 55 ALR 171 : 217 Ala 176 (1927):
“25. … ‘The right to the enjoyment of a
private reputation, unassailed by malicious slander is of ancient origin, and
is necessary to human society. A good reputation is an element of personal
security, and is protected by the Constitution equally with the right to the
enjoyment of life, liberty, and property.’”
89.
Reputation of an individual is an insegregable facet of his right to life with
dignity. In a different context, a two-Judge Bench of this Court
in Vishwanath Agrawal v. Sarla Vishwanath Agrawal reported in (2012)
7 SCC 288, has observed:
“55. … reputation
which is not only the salt of life, but also the purest treasure and the most
precious perfume of life. It is extremely delicate and a cherished value this
side of the grave. It is a revenue generator for the present as well as for the
posterity.”
90.
The most disturbing feature of this litigation is the order passed by the High
Court on quantum of sentence. In para 2, the High Court has observed thus:
“Learned State counsel
submits that the instant case is the rarest of rare case, whereby, capital
punishment is required to be imposed upon the present convicts/accused. However,
in the facts and circumstances of the present case, the above submission is
liable to be rejected.”
91.
The Public Prosecutor instead of assisting the learned Judges in the right
direction by pointing out the correct position of law went to the extent of
praying before the Court that the appellants herein deserved capital
punishment. It is a different thing that the High Court rejected the prayer of
the Public Prosecutor.
92.
Such is the standard of the Public Prosecutors in the High Courts of the
country. This is bound to happen when the State Governments across the country
appoint AGPs and APPs in their respective High Courts solely on political
considerations. Favouritism and nepotism is one additional factor for
compromising merit. This judgement is a message to all the State Governments
that the AGPs and APPs in respective High Courts should be appointed solely on
the merit of the person. The State Government owes a duty to ascertain the
ability of the person; how proficient the person is in law, his overall
background, his integrity etc.
93.
Time and again this Court has observed in so many of its decisions that such
appointments be it in the High Court or in the district judiciary should be
only taking into consideration the merit of the candidate and no other
consideration should weigh in such appointments.
94.
Public Prosecutor holds a "Public Office". The primacy given to him
under the Scheme of CrPC has a "special purpose". Certain
professional, official obligations and privileges are attached to his office.
His office may also be termed as an office of profit as he remains disqualified
to contest the election so long he holds the office though permanency is
attached to the office and not to the term of his office. His duties are of
public nature. He has an "independent and responsible character". He
holds the public office within the scope of a "quo warranto
proceedings". Prosecutor is not a part of investigating agency but is an
"independent statutory authority". He performs statutory duties
and
functions. He holds an office of
responsibility as he has been enclothed with the power to withdraw the
prosecution of a case on the directions of the State Government.
95.
The Criminal law enforcement system investigates crimes and prosecutes offenders.
It must also protect valued rights and freedoms, and convict only the guilty.
The prosecutor must recognize these different and competing interests. He
should strike a fair balance between the competing interests of convicting the
guilty, protecting citizens' rights and freedoms and protecting the public from
criminals. Prosecutors should ensure that prosecutions are conducted in a
diligent, competent and fair manner. The importance of the office of the Public
Prosecutor cannot be overemphasized. The Public Prosecutor must be a person of
high merit, fair and objective, because upon him depends to a large extent the
administration of criminal justice. The office of the Public Prosecutor is a
public office and the incumbent has to discharge statutory duties. The person
appointed as Public Prosecutor must, therefore, be one who is not only able and
efficient, but also enjoys a reputation and prestige which satisfy his
appointment as a Public Prosecutor. The duty of the prosecutor is to assist the
Court in reaching a proper conclusion in regard to the case which is brought
before it for trial. The prosecutor has to be fair in the presentation of the
prosecution case. He must not suppress or keep back from the court evidence
relevant to the determination of the guilt or innocence of the accused. He must
present the complete picture, and not a one sided picture. He must not be
partial to the prosecution or to the accused. He has to be fair to both
sides in the presentation of the case.
96.
A Public Prosecutor is not expected to show a thirst to reach the case in the
conviction of the accused somehow or the other irrespective of the true facts
of the case. The expected attitude of the Public Prosecutor while conducting
prosecution must be couched in fairness not only to the Court to the
investigation agencies but to the accused as well. If an accused is entitled to
any legitimate benefit during trial, the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to
winch it to the fore and make it available to the accused. Even if the court or
defence counsel overlooked it, the Public Prosecutor has the added
responsibility to bring it to the notice of the Court, if it comes to his
knowledge.
97.
Law Officers are one of the important wheels of the chariot, driven by the
Judges to attain the cherished goal of human being to secure justice against
the wrong doers. The main object of the State is to curb the crime, investigate
and prosecute the offenders and punish them, with a view to maintain law and
order, amity and harmony, tranquillity and peace. The various provisions of
the CrPC and the Rules provide the manner and procedure by which the
Public Prosecutor should be appointed and provide assistance to the Courts. The
object of the CrPC and the Rules is to appoint the best among the
lawyers as the Public Prosecutor to provide assistance to the Court. The people
have the vital interest in the matter.
98.
Judges are human beings and at times they do commit mistakes. The sheer
pressure of work at times may lead to such errors. At the same time, the
defence counsel as well as the Public Prosecutor owes a duty to correct the
Court if the Court is falling in some error and for all this, we hold the State
Government responsible. It is the State Government who appointed the concerned
Public Prosecutor. The State Government should be asked to pay compensation to
the three appellants herein.
99.
For all the foregoing reasons, the appeals succeed and are hereby allowed. The impugned
judgment and order passed by the High Court is hereby set aside. The State
Government shall pay Rs. 5,00,000/- each to the three appellants towards
compensation within a period of four weeks from today failing which we shall
take appropriate action against the responsible officer.
100.
The bail bonds furnished by the appellants herein stand discharged.
101.
Registry shall notify this matter once again before this Bench after four weeks
to report compliance of payment of compensation as awarded.
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