SUPREME COURT OF INDIA

Before:- M.B. Shah and B.N. Agrawal, JJ.

Criminal Appeal No. 245 of 2002. D/d. 12.2.2002.

Assistant Commissioner of Central Excise, Hyderabad - Appellant

Versus

Sabnife Power Systems Ltd. - Respondent

A. Criminal Procedure Code, Sections 24(8) and 401 - "Public Prosecutor" includes "Special Public Prosecutor" - Section 24(8) Criminal Procedure Code, 1973 specifically empowers the Central Government or the State Government to appoint a Special Public Prosecutor for conducting any case or class of cases - Such Special Public Prosecutor would be Public Prosecutor for all the purposes under the Act - It cannot be said that the Special Public Prosecutor is not a Public Prosecutor - Appeal by Special Public Prosecutor head maintainable under Section 377(2).

[Para 6]

B. Criminal Procedure Code, 1973, Sections 377(2), 24(8) and 401 - Appeal by Government for enhancement of sentence - Special Public Prosecutor, who had filed the said appeal, had not been empowered by the Central Government to file such an appeal, and taking into consideration the contentions raised, Supreme Court found the case to be a fit one for exercise of revisional jurisdiction - High Court directed to threat the appeal filed by Special Public Prosecutor as a revision application and decide the same on merits.

[Paras 5 to 8]

Cases Referred :-

CCE v. V. Krishnamoorthy, (1997) 3 SCC 100 .

ORDER

M.B. Shah, J. - Heard the learned counsel for the parties.

2. Leave granted.

3. Against the judgment and order dated 7-1-1999 passed by the Special Judge for Economic Offences, Hyderabad, the complainant Assistant Commissioner of Central Excise (Legal), Headquarter Office, Hyderabad, preferred Criminal Appeal No. 428 of 1999 before the High Court of Andhra Pradesh at Hyderabad for enhancement of sentence imposed against the respondents. That appeal was dismissed by the High Court by holding that: (1) appeal for enhancement of sentence under Section 377(2) Criminal Procedure Code, 1973 could be filed by the Public Prosecutor duly authorised by the Central Government and the Special Public Prosecutor appearing on behalf of the appellant fairly admitted that the complainant was not empowered by the Central Government to file the appeal; and (2) appeal was not filed by the Public Prosecutor as contemplated under Section 377(2) Criminal Procedure Code, 1973 but was filed by the Special Public Prosecutor.

4. For the first ground, the High Court has relied upon the decision rendered by this Court in CCE v. V. Krishnamoorthy, (1997) 3 SCC 100 and the same cannot be said to be, in any way, illegal or erroneous.

5. However, Mr Altaf Ahmed, learned Additional Solicitor-General appearing for the appellant pointed out that the second reason given by the High Court is totally erroneous. The High Court arrived at the conclusion that the appeal filed by the Special Public Prosecutor was not maintainable because it was required to be filed through the Public Prosecutor as contemplated under Section 377(2) Criminal Procedure Code, 1973.

6. This submission of the learned Additional Solicitor-General requires to be accepted. Section 24(8) Criminal Procedure Code, 1973 specifically empowers the Central Government or the State Government to appoint a Special Public Prosecutor for conducting any case or class of cases. Such Special Public Prosecutor would be Public Prosecutor for all the purposes under the Act. It cannot be said that the Special Public Prosecutor is not a Public Prosecutor. Hence, the second reason recorded by the High Court cannot be justified.

7. Further, learned Additional Solicitor-General submits that in any set of circumstances, considering the facts, this was a fit case for the High Court to exercise its revisional jurisdiction and, therefore the appellant could have been permitted to convert the appeal as a revision application. Taking into consideration the contentions raised, in our view, this was a fit case for exercise of revisional jurisdiction. Learned counsel for the respondents also submits that it is for the court to treat this appeal as a revision application.

8. Hence, this appeal is partly allowed. The High Court to treat the appeal as a revision application and decide the case on merits in accordance with law.

Appeal partly allowed.