Need For Review of Full Bench Judgment of Punjab and Haryana High Court In M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd.
P.L. Goyal, Advocate
District Courts Faridabad
Additional District and Sessions Judge (Retd.)
Date : 24/10/2019
Need For Review of Full Bench Judgment of Punjab and Haryana High Court In M/s. Tata Steel Ltd. Vs. M/s. Atma Tube Products Ltd.The `victim' - the de facto sufferer of a crime - had no say or participation in our adjudicatory process. He was made to sit outside the courts as a mute spectator only. This miserable plight continued for centuries in the corridors of the conventional apparatus. On occasions only there were whiffs of cool air from the Apex Court and as also from the various High Courts whenever the Benches thereof came to be presided over by activist judges. This humble write up is restricted only to the subject of right to file an appeal by a `victim in private complaint cases against the orders of acquittal by the magisterial courts. The Code of Criminal Procedure when originally enacted in the year 1861 did not provide for any right to appeal against acquittals to anyone including the State. It was in the Code of Criminal Procedure, 1891 that Section 417 was inserted therein which enabled the government to direct the Public Prosecutor to present an appeal to the High Court against the original or appellate orders of acquittal by any Court other than the High Court. Thereafter, the Code of Criminal Procedure, 1973 (Code for short) came into existence w.e.f. January 25, 1974. Entertainment of appeals against acquittals was made subject to the leave of the High Court under sub-section (3) of Section 378 of the Code. Under sub-section (4) of Section 378 of the Code, condition of maintainability of an appeal at the instance of a complainant against an order of acquittal passed in a complaint case was retained only if special leave to appeal was granted by the High Court. Further, under Section 372 of the Code, it was laid down that no appeal could lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. Then proviso to Section 372 of the Code was inserted with a fanfare by the Parliament vide Act 5 of 2009. After this amendment Section 372 reads as follows:-
"No appeal shall lie from any judgment for order of a Criminal Court except as provided for by this Code or by any other law for the time being in force;
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."The term `victim' was also defined in the said Act 5 of 2009 and a new sub-section (wa) was added in the catalogue of definitions given in Section 2 of the Code which is as under:-
"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."After the bestowal of right to appeal on a `victim' against the orders of acquittal via Amendment Act 5 of 2009 in the Code, appeals were filed by the `victims' against the orders of the magisterial courts to the Courts of Sessions as appeals against the orders of convictions by the magisterial courts would lie to the courts of sessions. Divergent views were expressed by various High Courts in our country regarding the maintainability of such appeals against acquittals by the magisterial courts in the Courts of Sessions. Some High Courts took the view that appeal by a `victim' under proviso to Section 372 of the Code in a privately instituted complaint by him could not lie in the Courts of Sessions as the `victim' was a complainant, and under Section 378 (4) of the Code, such appeals could be filed by the complainants in the High Court and that too with the special leave to appeal to the High Court. Some Benches took the view that the newly added proviso to Section 372 of the Code was independent of the provisions of Section 378 (4) of the Code and there was no condition in proviso to Section 372 of the Code that appeal against acquittal by the `victim' had to be filed to the High Court and that too with special leave to appeal in this regard. It was observed in this line of thought that it did not make any difference that there was no corresponding amendment in Section 378 (4) of the Code. It was also observed that the Parliament could not have intended to give the rights to a `victim' under proviso to Section 372 of the Code by right hand and then to withdraw this bonanza by left hand by resorting to Section 378 (4) of the Code. There was also a third strand of thought by some Benches of the High Courts that a `victim' had a dual right for filing appeals against acquittals. As a `victim' in a privately instituted complaint he could prefer an appeal to the Court of Sessions via proviso to Section 372 of the Code, and as a complainant he could also avail the remedy of filing appeal against acquittals to the High Court via Section 378 (4) of the Code. The divergences of views on the subject led to the constitution of a Full Bench in the High Court of Punjab and Haryana at Chandigarh. After a considerable discussion, labour and research, the said Full Bench presided over by Hon'ble Justice Suryakant (as his Lordship then was) delivered the judgment entitled M/s. Tata Steels Ltd. v. M/s. Atma Tube Products Ltd. 2013(2) RCR (Criminal) 1005 in which it was held, inter-alia, that a `victim' in a private complaint case can challenge the order of acquittal by filing an appeal only before the High Court after seeking special leave to appeal from the High Court. The Full Bench held that notwithstanding the right conferred upon a `victim' of a private complaint case under proviso to Section 372 of the Code, for filing appeal against an order passed by the Court acquitting the accused to which an appeal ordinarily lies against the order of conviction, there was no corresponding amendment in Section 378 (4) of the Code. So such an appeal could be instituted only before the High Court and that too after seeking special leave of the High Court. Even though the judgment of the Full Bench of the High Court in M/s. Tata Steel Ltd. case is well researched and well drafted, yet it is humbly submitted that the same has taken a myopic and restricted view of the matter by making the provision of Section 378 (4) of the Code overriding upon the proviso to Section 372 of the Code. The Full Bench ought to have realized that the Parliament in all possibility could not have intended to confer right upon the `victim' to file appeal against the order of acquittal by a magistrate to the Court of Sessions and then withdraw the same right via Section 378 (4) of the Code. Such a construction will mean bestowing something by right hand and then snatching the same with the left hand. To obviate this unpleasant situation the Full Bench should have made strenuous efforts to harmoniously construe both the provisions i.e. proviso to Section 372 and Section 378 (4) of the Code in such a manner that effect could be given to both the provisions. Well known canons of statutory interpretation should have been invoked which could very easily obviate the discomfiture. The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature had in view. Their meaning is found not so much in strict grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained vide Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate AIR 1958 SC 353. Mukesh K Tripathi v. Senior Divisional Manager AIR 2004 SC 4179 also recognizes the same principle. When two interpretations are feasible the courts should prefer that which advances the remedy and suppresses the mischief as the Legislature envisioned vide State of Haryana v. Sampuran Singh AIR 1975 SC 1952. Attracting this principle of interpretation, the Full Bench could well hold that the term `complainant' used in Section 378 (4) of the Code did not include those complainants who were `victims' also. By adopting this interpretation effect could be given to both the proviso to Section 372 of the Code and Section 378 (4) of the Code. The provision of Section 378 (4) of the Code could thus be restricted to those cases only in which the complainant was not a `victim' in a private complaint case. Then if the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results vide Veluswami Thevar v. G. Raja Nainar AIR 1959 SC 422; Tirath Singh v. Bachittar Singh AIR 1955 SC 830; and D. Saibaba v. Bar Council of India AIR 2003 SC 2502. Principle of interpretation recognized in these and various other judgments of the Apex Court could well be invoked by watering down the provisions of Section 378 (4) of the Code in such a manner that the term `complainant' therein did not include a `victim' of a private complaint case. If the literal interpretation adopted by the Full Bench in M/s. Tata Steel Ltd. is allowed to prevail then the same will result into absurdity and hardship as in that situation a `victim' in a case instituted upon police report will be able to challenge the order of acquittal rendered by a magisterial court in the Court of Sessions under proviso to Section 372 of the Code, but he will have to challenge an order of acquittal in the High Court in the cases instituted upon a private complaint. It will further lead to great hardship for a `victim' as the appeals will have to be filed by the `victims' in the High Court which may be seated at a far off place. Moreover, in the High Court appeals take decades in their disposal. This will cause special hardship in the cases under Section 138 of Negotiable Instruments Act, 1881 in which the accused are acquitted by the magisterial courts. The same will stop the free flow of trade and economy in the country. If harmonious construction as suggested above is adopted by diluting and watering down the interpretation of the term `complainant' as not including a `victim' therein then such a hardship and inconvenience will vanish. A statute must be read as a whole and one provision of an Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. It is the duty of the courts to avoid "a head on clash" between two Sections of the same Act and whenever it is possible to do so, to construe provisions which appear to conflict in such a manner that they harmonise with each other vide Apex Court in University of Allahabad v. Amirchand Tripathi AIR 1987 SC 57; Krishna Kumar v. State of Rajasthan AIR 1992 SC 1789. Before leaving the topic a reference is necessary to certain observations by celebrated Denning LJ who said : "when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work only constructive task of finding the intention of the Parliament and then he must supplement the written words so as to give `force and life' to the intention of the Legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases." These observations were made by Lord Justice Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155, p. 164 (CA). This rule of construction stated by Denning LJ was approved by our Final Court in Bangalore Water Supply v. A. Rajappa AIR 1978 SC 548. Invoking this rule of construction also the provision of Section 378 (4) of the Code should have been watered down by holding that the same will not apply in those cases in which the complainant was also a `victim'. This interpretation will also not render proviso to Section 372 of the Code as otiose. It will be in consonance with the legislative intent of redressing the plight of `victims' who are the actual sufferers in crimes and who hitherto were an ignored specie. It is, therefore, high time that the Full Bench judgment in M/s. Tata Steel Ltd. case should be reviewed either by a larger Bench of the High Court of Punjab and Haryana or by the Apex Court which is the demand of justice.
© Chawla Publications (P) Ltd.