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Criminal Appeal No. 662 of 2010 (Arising out of SLP (Crl.) No. 6563 of 2007) and Criminal Appeal No. 670 of 2010 (Arising out of SLP (Crl.) No. 6821 of 2007). Case: 1. Lalu Prasad Yadav and Anr., 2. Central Bureau of Investigation Vs State of Bihar and Anr.. Supreme Court (India)

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Case NumberCriminal Appeal No. 662 of 2010 (Arising out of SLP (Crl.) No. 6563 of 2007) and Criminal Appeal No. 670 of 2010 (Arising out of SLP (Crl.) No. 6821 of 2007)
CounselFor Appearing Parties: Ram Jethmalani, Pravin H. Parekh, Chitranjan Sinha, A. Mariarputham and L. Nageshwar Rao, Sr. Advs., Lata Krishnamurti, P.R. Mala, E.R. Kumar, Sameer Parekh, Saurabh Ajay Gupta, Somanadri Gaud and Pranav Diesh, Advs. for Parekh and Co., T.A. Khan, Devadatt Kamat, Arvind K. Sharma and P.K. Dey, Advs. for B. Krishna Prasad,...
JudgesK. G. Balakrishnan, C.J.I., R.M. Lodha and Dr. B.S. Chauhan, JJ.
IssueCriminal P.C. (2 of 1974) - Sections 378, 24
CitationAIR 2010 SC 1561, 2010 CriLJ 2427, JT 2010 (3) SC 433, 2010 (2) KCCR 1477, RLW 2010 (3) SC 2619, 2010 (3) SCALE 443, 2010 (5) SCC 1, 2010 (3) UJ 1569 (SC)
Judgement DateApril 01, 2010
CourtSupreme Court (India)

Judgment:

R.M. Lodha, J.

  1. 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)."

  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 Court of Special Judge, CBI (AHD), Patna. The charges were framed against 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 18, 2006 before the High Court of Judicature at Patna. The accused were 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 acquittal is to be determined by Section 378 of the 1973 Code as it existed 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 of Maharashtra1, and submitted that the construction of Section 377 put 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 Pradesh 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).

  12. 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...

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