Lalu Prasad Yadav v. State of Bihar & Anr.
R.M. LODHA, J. 1. Leave granted.
2. Section 378 of Code of Criminal Procedure, 1973 (for c
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 D
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 E
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 F
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 G
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
E Bihar) has competence to file an appeal from the judgment
dated 18th December, 2006 passed by Special Judge, CBI
(AHO), Patna, acquitting the accused persons when the case
has been investigated by the Delhi Special Police
Establishment (CBI).
F 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
G 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
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 345
[R.M. LODHA, J.]
matter of fact, lodgement of FIR was sequel to direction by the A
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 B
and Smt. Rabri Devi in the Court of Special Judge, CBI (AHO),
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 c
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 D
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 (AHO), Patna, upon
conclusion of trial, vide its judgment dated December 18, 2006
acquitted the accused holding that prosecution failed to prove E
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 F
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 G
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 H
A 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
B 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
c 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 ,3 to be determined by Section 378 of the
1973 Code as it existed prior to 2005; the law in force on the
E date of the chargesheet. He would submit that the key words
in Section :178(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
F 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
G 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,
H thus, submit that the court has to adopt one of the two courses,
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 347
[R.M. LODHA, J.]
namely, (i) assign to the word another of its meanings which A
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 8 v. State of Maharashtra, 1 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 C
Pradesh 2 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. D
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 E
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 F
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 G
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
1. (1977) 3 sec 25.
2. (1976) 1 sec 385. H
A 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
B 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
c 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
0 and every case [including cases covered by sub-section (2)]
and the central government may additionally file an appeal in
a case covered by sub-section (2). Mr. L. Nageshwar Rao
contended that the :nterpretation to the expression "save as
otherwise provided in sub-section (2)", sought to be placed by
the appellants, is not in accordance with the logic or the plain
E language of the provision and such interpretation would result
in rendering the expression "in any case" in sub-section (1) and
the word "also" in sub-section (2) redundant and otiose. He
emphasized that no word or expression used in any statute can
be said to be redundant or superfluous; that in matters of
F interpretation one should not concentrate too much on one word
and pay too little attention to other words and no provision in
the statute and no word in the section can be construed in
isolation and every provision and every word must be looked
at generally and in the context in which it is used.
13. Relying upon the case of Eknath Shankarrao
Mukkawar1, Mr. L. Nageshwar Rao submitted that this Court
has held that in the absence of use of the word "also" in sub
section (2) of Section 377, as contained in sub-section (2) of
H Section 378, the state government was incompetent to file an
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 349
[R.M. LODHA, J.]
appeal in a case falling under Section 377(2) and now in order A
to remedy the lacuna pointed out by this Court, Parliament
amended Section 377(2) by Act No. 45 of 1978 to include the
word "also" therein and bring the same in pari materia with the
provisions of Section 378(2). He referred to the Statement of
Objects and Reasons for the said amendment and argued that B
after the said amendment, the state government is also
competent to file an appeal in a case falling under Section
377(2). Learned senior counsel urged that inasmuch as the
provisions of Section 377 and Section 378 are now in pari
materia and the same interpretation needs to be accorded to c
Section 378 as well.
14. Mr. L. Nageshwar Rao, learned senior counsel,
strenuously urged that the interpretation sought to be placed by
the appellants would lead to absurdity inasmuch as (i) even in
0 a case where the state government requests and permits
investigation under Section 6 of the Delhi Special Police
Establishment Act, 1946 (' 1946 Act', for short) and prosecution
is conducted by the public prosecutor appointed by the state
government, the state government would not be entitled to file
an appeal in case of acquittal, but would have to approach the E
central government for the purpose (which has no role or
connection with the investigation or the case); and (ii) in view
of the express amendment to Section 377 of 1973 Code so
as to enable the state government to file an appeal even where
investigation was conducted by the CBI or central agency, the F
state government would be competent to file an appeal in case
of award of inadequate sentence; but in a similar case that
results in acquittal then the state government would not be able
to file an appeal under Section 378.
15. In the Code of Criminal Procedure, 1861, Section 407
prohibited an appeal from acquittal. For the first time, the Code
of Criminal Procedure, 1872 provided for an appeal by the
government from an order of acquittal (Section 272). The said
provision was re-enacted in Section 417 of the Code of H
A Criminal Procedure, 1882. The provision concerning an appeal
in case of acquittal was retained in Section 417of1898 Code.
The provision relating to an appeal from order of acquittal in
1898 Code (as amended by Amendment Act 26of1955) reads
as under:-
"S. 417.- Appeal in case of acquittal.-(1) Subject to the
provisions of sub-section (5), the State Government may,
in any case, direct the Public Prosecutor to present an
appeal to the High Court from an original or appellate order
of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946, the Central
Government may also direct the Public Prosecutor to
present an appeal to the High Court from the order of
acquittal.
(3) If sue~ an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of acquittal
the complainant may present such an appeal to the High
Court.
(4) No application under sub-section (3) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of sixty days
from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for
the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1 )."
16. In 1973 Code, appeal from an order of acquittal has
H been retained with some modifications. Section 378, sub-
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 351
[R.M. LODHA, J.)
section (1) opens with the words, "save as otherwise provided A
in sub-section (2)". The main thrust of the arguments by the
learned senior counsel centered around the opening words,
"save as otherwise provided in sub-section (2)", the phrase "in
any case" in sub-section (1) and the word "also" in sub-section
(2). B
17. Way back in 1766, Parker, C.B., in Robert Mitchell v.
Soren Torup3 recognized the rule that in expounding Acts of
parliament, where words are express, plain and clear, the
words ought to be understood according to their genuine and
natural signification and import, unless by such exposition a C
contradiction or inconsistency would arise in the Act by reason
of some subsequent clause, from whence it might be inferred
the iritent of the Parliament was otherwise; and this holds with
respect to penal, as well as other Acts.
18. Parke, 8. in Becke v. Smith, 4 stated the following rule:
"It is a very useful rule, in the construction of a statute, to
adhere to the ordinary meaning of the words used, and to
the grammatical construction, unless that is at variance with E
the intention of the legislature, to be collected from the
statute itself, or leads to any manifest absurdity or
repugnance, in which case the language may be varied or
modified, so as to avoid such inconvenience, but no
further."
19. In The Attorney-General v. Lockwood, 5 the rule
regarding construction of statutes was expounded in the
following words:
" ..... The rule of law, I take it, upon the construction of all G
statutes, and therefore applicable to the construction of
this, is, whether they be penal or remedial, to construe
3. (1766) Parker 227.
4. (1836) 2 Meeson and Welsby 191.
5. (1842) 9 Meeson and Welsby 378. H
A them according to the plain, literal, and grammatical
meaning of the words in which they are expressed, unless
that construction leads to a plain and clear contradiction
of the apparent purpose of the act, or to some palpable
and e.vident absurdity .... ".
B 20. In The Sussex Peerage,6 the House of Lords, through
Lord Chief Justice Tindal, stated the rule for the construction
of Acts of Parliament that they should be construed according
to the intent of the Parliament which passed the Act. If the words
of the statute are of themselves precise and unambiguous, then
C no more can be necessary than to expound those words in their
natural and ordinary sense. The words themselves do, in such
case, best declare the intention of the Legislature.
21. A Constitution Bench of this Court in Union of India
D & Anr. v. Hansoli Devi and Others, 7 approved the rule
exposited by Lord Chief Justice Tindal in The Sussex
Peerage's case6 and stated the legal position thus:
"It is a cardinal principle of construction of a statute that
when the language of the statute is plain and
unambiguous, then the court must give effect to the words
used in the statute and it would not be open to the courts
to adopt a hypothetical construction on the ground that such
construction is more consistent with the alleged object and
policy of the Act. In Kirkness v. John Hudson & Co. Ltd.,
(1955) 2 All ER 345, Lord Reid pointed out as to what is
the meaning of "ambiguous" and held that:
"A provision is not ambiguous merely because it
contains a word which in different contexts is
G capable of different meanings. It would be hard to
find anywhere a sentence of any length which does
not contain such a word. A provision is, in my
judgment, ambiguous only if it contains a word or -------6. (1844) XI Clark & Finnelly 85.
H 7. c2002) 7 sec 273.
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 353
[R.M. LODHA, J.]
phrase which in that particular context is capable of A
having more than one meaning."
It is no doubt true that if on going through the plain meaning
of the language of statutes, it leads to anomalies, injustices
and absurdities, then the court may look into the purpose B
for which the statute has been brought and would try to give
a meaning, which would adhere to the purpose of the
statute. Patanjali Sastri, C.J. in the case of Aswini Kumar
Ghose v. Arabinda Bose, AIR 1952 SC 369, had held that
it is not a sound principle of construction to brush aside C
words in a statute as being inapposite surplusage, if they
can have appropriate application in circumstances
conceivably within the contemplation of the statute. In
Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry,
AIR 1920 PC 181, it had been observed that.the legislature
is deemed not to waste its words or to say anything in vain D
and a construction which attributes redundancy to the
legislature will not be accepted except for compelling
reasons. Similarly, it is not permissible to add words to a
statute which are not there unless on a literal construction
being given a part of the statute becomes meaningless. But E
before any words are read to repair an omission in the Act,
it should be possible to state with certainty that these words
would have been inserted by the draftsman and approved
by the legislature had their attention been d;awn to the
omission before the Bill had passed into a law. At times, F
the intention of the legislature is found to be clear but the
unskilfulness of the draftsman in introducing certain words
in the statute results in apparent ineffectiveness of the
language and in such a situation, it may be permissible for
the court to reject the surplus words, so as to make the G
statute effective ...... "
22. As noticed above, Section 378, sub-section (1 ), opens
with the words - "save as otherwise provided in sub-section (2)".
These words are not without significance. The immediate H
A question is as to what meaning should be ascribed to these
words. In Concise Oxford English Dictionary (Tenth Edition,
Revised), the word "save" is defined thus:
"save.-formal or poetic/literary except; other than .... "
B 23. In Webster Comprehensive Dictionary (International
Edition), the word "save" is defined as follows:-
"save.-Except; but - 1. Except; but 2. Archaic Unless".
24. A Dictionary of Modern Legal Usage by Bryan A.
C Garner (1987) states that "save" is an ARCHAISM when used
for "except". It should be eschewed, although, as the examples
following illustrate, it is still common in legal prose. e.g., 'The
law-of-the-circuit rule forbids one panel to overrule another save
[read except] when a later statute or Supreme Court decision
D has changed the applicable law'.
25. In Williams v. Milotin,8 the High Court·of Australia, while
construing the words "save as otherwise provided in this Act"
stated:-
" .... In fact the words "save as otherwise provided in this
Act" are a reflexion of the words "except" - or "save" - "as
hereinafter excepted".
26. Section 378 is divided into six sub-sections. Sub-
F section ( 1) provides that the state government may direct the
public prosecutor to present an appeal to the High Court from
an original or appellate order of acquittal passed by any court
other than High Court or an order of acquittal passed by the
court of session in revision. It opens with the words "save as
G otherwise provided in sub-section (2)" followed by the words
"and subject to the provisions of sub-sections (3) and (5)". Sub
section (2) refers to two class of cases, namely, (i) those cases
where the offence has been investigated by the Delhi Special
H 8. 97 C.L.R. 465.
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 355
[R.M. LODHA, J.]
Police Establishment constituted under 1946 Act and (ii) those A
cases where the offence has been investigated by any other
agency empowered to make investigation into an offence under
any Central Act other than 1973 Code and provides that the
central government may also direct the public prosecutor to
present an appeal to the High Court from an order of acquittal. B
Such an appeal by the central government in the aforesaid two
types of cases is subject to the provisions contained in sub
section (3). Sub-section (3) provides that an appeal under sub
sections ( 1) and (2) shall not be entertained without leave of the
High Court. Where the order of acquittal has been passed in a c
case instituted upon complaint, sub-section (4) provides that the
complainant may apply for special leave to appeal from the
order of acquittal and if such leave is granted, an appeal be
presented by him to the High Court. The limitation is prescribed
in sub-section (5). Insofar as the cases .covered by sub-section D
(4) are concerned, where the complainant is a public servant,
limitation prescribed is six months from the date of an order of
acquittal and in all other cases, including the cases covered by
sub-sections (1) and (2), a period of sixty days from the date
of the order of acquittal. Sub-section (6) makes a provision that E
if an 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). We have surveyed Section 378 in its entirety
to have complete conspectus of the provision.
27. The opening words - "save as otherwise provided in
sub-section (2)" - are in the nature of exception intended to
exclude the class of cases mentioned in sub-section (2) out of
operation of the body of sub-section (1). These words have no
other meaning in the context but to qualify the operation of sub- G
section (1) and take out of its purview two types of cases
referred in sub-section (2), namely, (i) the cases in which offence
has been investigated by the Delhi Special Police Establishment
constituted under 1946 Act and (ii) the cases in which the
offence has been investigated by any other agency empowered H
A to make investigation into an offence under any Central Act
other than 1973 Code. By construing Section 378 in a manner
that permits appeal from an order of acquittal by the state
government in every case, except two class of cases
mentioned in sub-section (2), full effect would be given to the
B exception (clause) articulated in the opening words. As noticed
above, the words - "save as otherwise provided in sub-section
(2)" - were added in 1973 Code; Section 417 of 1898 Code
did not have these words. It is familiar rule of construction that
all changes in wording and phrasing may be presumed to have
c been deliberate and with the purpose to limit, qualify or enlarge
the pre-existing law as the changes of the words employ. Any
construction that makes exception (clause) with which section
opens unnecessary and redundant should be avoided. If we
give to Section 378, sub-sections (1) and (2), the interpretation
0 which the state government claims; we would have to say that
no matter that complaint was not lodged by the state
government or its officers; that investigation was not done by
its police establishment; that prosecution was neither
commenced nor continued by the state government; that public
prosecutor was not appointed by the state government; that the
E state government had nothing to do with the criminal case; that
all steps from launching of prosecution until its logical end were
taken by the Delhi Police Special Establishment and yet the
state government may file an appeal from an order of acquittal
under Section 378(1). That would be rendering the exception
F (clause) reflected in the opening words - "save as otherwise
provided in sub-section (2)" - redundant, meaningless and
unnecessary. If the Legislature had intended to give the right
of appeal under Section 378( 1) to the state government in all
cases of acquittal including the class of cases referred to in sub-
G section (2), it would not have been necessary to incorporate
the exception (clause) in the opening words. This objective
could have been achieved without use of these words as
erstwhile Section 417 of 1898 Code enabled the state
government to appeal from all cases of acquittal while in two
H types of cases mentioned in sub-section (2) thereof, appeal
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 357
[R.M. LODHA, J.]
from the order of acquittal could be filed under the direction of A
central government 'as well.
28. In The Bengal Immunity Company Limited v. The
State of Bihar and others9 Venkatarama Ayyar, J. observed:
" ..... It is a well-settled rule of construction that when a
statute is repealed and re-enacted and words in the
repealed statute are reproduced in the new statute, they
should be interpreted in the sense which had been judicially
put on them under the repealed Act, because the
Legislature is presumed to be acquainted with the C
construction which the Courts have put upon the words, and
when they repeat the same words, they must be taken to
have accepted the interpretation put on them by the Court
as correctly reflecting the legislative mind ...... " --~- ... .
29. However, if the latter statute does not use the same
language as in the earlier one, the alteration must be taken to
have been made deliberately. In his classic work, Principles of
Statutory Interpretation by G.P. Singh, 12th Edition, 2010 at
page 310, the following statement of law has been made:
"Just as use of same language in a later statute as was
used in an earlier one in pari materia is suggestive of the
intention of the Legislature that the language so used in
the later statute is used in the same sense as in the earlier
one, change of language in a later statute in pari materia F
is suggestive that change of interpretation is intended."
The learned author also refers to the observations of Lord
MacMillan in D.R. Fraser & Co. Ltd. v. The Minister of National
Revenue:10 "When an amending Act alters the language of the G
principal Statute, the alteration must be taken to have been
made deliberately".
9. (1955) 2 SCR 603
10. AIR 1949 PC 120. H
30. It is important to bear in mind that this Court in
Khemraj2 , has put the following construction to Section 417
of 1898 Code:
"10. Section 417 Criminal Procedure Code, prior to the
Amendment Act XXVI of 1955 provided for presentation
of appeals by the Public Prosecutor on the direction of the
State Government. The 1955 Amendment introduced
several changes and provided for appeals at the instance
of the complainant as also on the direction of the Central
Government in cases investigated by the Delhi Special
Police Establishment. Further changes were introduced in
the matter of appeals against acquittal under Section 378
of the Code of Criminal Procedure, 1973, with which we
are not concerned in this appeal in view of the repeal
provisions under Section 484(1), CrPC.
11. The Delhi Special Police Establishment (briefly "the
Establishment"), a central police force, is constituted under
the Delhi Special Police Establishment Act, 1946 (Act XXV
of 1946) (briefly the Delhi Act). Under Section 2 of the Act,
the Central Government may constitute a special police
force, called the Delhi Special Police Establishment, for
investigation of certain offences or class of offences as
notified under Section 3 of the Delhi Act. Under Section 4
of the Act the superintendence of the Delhi Special Police
Establishment vests in the Central Government and
administration of the Special Police Establishment vests
in an officer appointed by the Central Government who
exercises powers exercisable by an Inspector General of
Police as the Central Government may specify. Under
Section 5 the powers and the jurisdiction of the
Establishment can be extended by the Central Government
to other areas in a State although not a Union territory.
Once there is an extension of the powers and jurisdiction
of the members of the Establishment, the members thereof
while discharging such functions are deemed to be
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 359
[R.M. LODHA, J.]
members of the police force of the area and are vested A
with the powers, functions and privileges and are subject
to the liabilities of a police officer belonging to that force.
The police officer also subject to the orders of the Central
Government exercises the powers of the officer-in-charge
of a police station in the extended area. Under Section 6 B
consent of the State Government is necessary to enable
the officer of the Establishment to exercise powers and
jurisdiction in any area in the State not being a Union
territory or railway area.
12. Investigation under the Delhi Act is, therefore, a central C
investigation and the officers concerned are under the
superintendence of the officer appointed by the Central ·
. Government. The superintendence of the Establishment is
also under the Central Government. The Central
Government, therefore, is concerned with the investigation D
of the cases by the Establishment and its ultimate result.
It is in that background that in 1955, Section 417 was
amended by adding sub-section (2) to the section to
provide for appeal against acquittal in cases investigated
by the Establishment also on the-direction of the Central E
Government. In view of the provisions of the Delhi Act it
was necessary to introduce sub-section (2) in Section 417
so that this Central agency which is solely and intimately
connected with the investigation of the specified offences
may also approach the Central Government for direction F
to appeal in appropriate cases.
13. This, however, does not bar the jurisdiction of the State
Government also to direct presentation of appeals when
it is moved by the Establishment. The Establishment can G
move either the Central Government or the State
Government. It will be purely a matter of procedure whether
it moves the State Government directly or through the
Central Government or in a given case moves the Central
360
8
Government alone. It will again be a matter of procedure
when the Central Government decides to appeal it requests
the State Government to do the needful through the Public
Prosecutor appointed under the Code.
14. The word !also' in sub-section (2) of Section 417 is
very significant. This word seems not to bar the jurisdiction
of the State Government to direct the Public Prosecutor
to present an appeal even in cases investigated by the
Establishment. Sub-section (1) of Section 417 is in general
terms and would take in its purview all types of cases since
the expression used in that sub-section is "in any case".
We do not see any limitation on the power of the State
Government to direct institution of appeal with regard to
any particular type of cases. Sub-section (1) of Section 417
being in general terms is as such of wider amplitude. Sub
section (2) advisedly uses the word 'also' when power is
given to the Central Government in addition to direct the
Public Prosecutor to appeal."
31. The Parliament in 1973 Code re-enacted the provision
E for appeal from order of acquittal with certain modifications. It
changed the language by addition of words - "save as
otherwise provided in sub-section (2)". The alteration in
language by addition of these words gives rise to an inference
that the Legislature made conscious changes in Section 378
F (1973 Code). We are afraid, the addition of words in Section
378(1) by way of exception (clause) cannot be set at naught
by giving same interpretation which has been given to Section
417 (1898 Code). As a matter of fact, in Khemraj 2· this Court
did notice that changes have been introduced in the matter of
G appeals against acq:.iittal under Section 378 of the 1973 Code,
but the Court did not deal with these changes as it was not
concerned with that provision. In our opinion, the decision of
this Court in Khemraj2 cannot be applied as the language used
in Section 417 (1898 Code) and Section 378 (1973 Code) is
not in pari materia.
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 361
[R.M. LODHA, J.]
32. Much emphasis, however, has been placed on the word A
"also" in sub-section (2) of Section 378 ..by learned senior
counsel for the state government. It has been urged that by use
of the word "also", competence of the state government in
directing the public prosecutor to file an appeal from an order
of acquittal in the two types of cases covered by sub-section B
(2) is not taken away and rather the word "also" suggests that
central government may also direct the public prosecutor to file
an appeal from an order of acquittal in the class of cases
mentioned in sub-section (2). Does the word "also" carry the
meaning as· contended by the learned senior counsel for the c
state government? One of the rules of construction of statutes
is that language of the statute should be read as it is and any
construction that results in rejection of words has to be avoided;
the effort should be made to give meaning to each and every
word used by the Legislature. However, such rule of.construction D
of statutes is not without exceptions. In Stone v. Yeovil Corp., 11
Brett J. observed :
"The word "such" in the second branch of that clause would
seem at first sight to apply to lancis purchased or taken;
but, if so read, it is insensible. It is a canon of construction E
that, if it be possible, effect must be given to every word
of an Act of Parliament or other document; but that, if there
be a word or a phrase therein to which no sensible
meaning can be given, it must be eliminated. It seems to
me, therefore, that the word "such" must be eliminated from F
this part of the clause."
Archibald, J. concurred with Brett J. thus :
"But I agree with my Brother Brett that it is a true canon of
construction, that, where a word is found in a statute or in any G
other instrument or document which cannot possibly have a
sensible meaning, we not only may, but must, eliminate it in
order that the intention may be carried out."
11. (1875-76) L.R. 1 CPD 691. H
362 SUPREME COURT REPORTS [2010) 4 S.C.R.
33. In Salmon v. Duncombe and Others, 12 Privy Council
speaking through Lord Hobhouse stated :
"It is, however, a very serious matter to hold that when the
main object of a statute is clear, it shall be reduced to a
nullity by the draftsman's unskilfulness or ignorance of law.
It may be necessary for a Court of Justice to come to such
a conclusion, but their Lordships hold that nothing can justify
it except necessity or the absolute intractability of the
language used. And they have set themselves to consider,
first, whether any substantial doubt can be suggested as
to the main object of the legislature; and, secondly, whether
the last nine words of sect. 1 are so cogent and so limit
the rest of the statute as to nullify its effect either entirely
or in a very important particular."
D 34. The main object and legislative intent by the opening
words - "save as otherwise provided in sub-section (2)" - in
sub-section (1) of Section 378 being clear i:e., to fetter the
general power given to the state government in filing appeal
from the order of acquittal in two types of cases stated in sub-
E section (2), the use of word "also" in sub-section (2) does not
make any sense. The word "also" in sub-section (2), if construed
in the manner suggested by the state government, may result
in reducing the opening words in sub-section (1) a nullity and
will deny these words their full play. Since exception (clause)
F in the beginning of sub-section (1) has been expressly added
in Section 378 and it is not possible to harmonise the word
"also" occurring in sub-section (2) with that, it appears to us that
no sensible meaning can be given to the word "also" and the
said word has to be treated as immaterial. We are not oblivious
G of the fact that to declare "also" enacted in sub-section (2)
immaterial or insensible is not very satisfactory, but it is much
more unsatisfactory to deprive the words - "save as otherwise
provided in sub-section (2)" - of their true and plain meaning.
In order that the exception (clause) expressly stated in the
H 12. (1886) 11 AC 627.
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 363
[R.M. LODHA, J.]
opening words of sub-section (1) might be preserved, it is A
necessary that word "also" in sub-section (2) is treated as
immaterial and we hold accordingly.
35. The phrase "in any case" in sub-section (1) of Section
378, without hesitation, means "in all cases", but the opening 8 words in the said Section put fetters on the state government
in directing appeal to be filed in two types of cases mentioned
in sub-section (2).
36. Section 2(u) of 1973 Code defines "public prosecutor"
which means any person appointed under Section 24 and C
includes any person acting under the directions of a public
prosecutor. Section 24 reads as follows:
"S.24. - Public Pr.osecutors.-(1) For every High Court, the
Central Government or the State Government shall, after D
consultation with the High Court, appoint a Public
Prosecutor and may also appoint one or more Additional
Public Prosecutors, for conducting in such Court, any
prosecution, appeal or other proceeding on behalf of the
Central Government or State Government, as the case E
may be.
(2) The Central Government may appoint one or more
Public Prosecutors for the purpose of conducting any case
or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint
a Public Prosecutor and may also appoint one or more
Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional
Public Prosecutor appointed for one district may be G
appointed also to be a Public Prosecutor or an Additional
Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the
364
SUPREME COURT REPORTS [2010) 4 S.C.R.
Sessions Judge, prepare a panel of names of persons,
who are, in his opinion, fit to be appointed as Public
Prosecutors or Additional Public Prosecutors for the
district.
(5) No person shall be appointed by the State Government
as the Public Prosecutor or Additional Public Prosecutor
for the district unless his name appears in the panel of
names prepared by the District Magistrate under sub
section (4).
(6) Notwithstanding anything contained in sub-section (5),
where in a State there exists a regular Cadre of
Prosecuting Officers, the State Government shall appoint
a Public Prosecutor or an Additional Public Prosecutor only
from among the persons constituting such Cadre:
Provided that where, in the opinion of the State
Government, no suitable person is available in such Cadre
for such appointment that Government, may appoint a
person as Public Prosecutor or Additional Public
Prosecutor, as the case may be, from the panel of names
prepared by the District Magistrate under sub-section (4).
Explanation.-For the purpose of this sub-section,-
(a) "regular Cadre of Prosecuting Officers" means a Cadre
of Prosecuting Officers which includes therein the post of
a Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutors, by
whatever name called, to that post;
(b) "Prosecuting Officer'' means a person, by whatever
name called, appointed to perform the functions of a
Public Prosecutor, an Additional Public Prosecutor or an
Assistant Public Prosecutor under this Code.]
(7) A person shall be eligible to be appointed as a Public
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 365
[R.M. LODHA, J.]
Prosecutor or an Additional Public Prosecutor under sub- A
section (I) or sub-section (2) or sub-section (3) or sub
section (6), only if he has been in practice as an advocate
for not less than seven years.
(8) The Central Government or the State Government may 8
appoint, for the purposes of any case or class of cases, a
person who has been in practice as an advocate for not
less than ten years as a Special Public Prosecutor.
Provided that the Court may permit the victim to
engage an advocate of his choice to assist the C
prosecution under this sub-section.
(9) For the purposes of sub-section (7) and sub-section
(8), the period during which a person has been in practice
as a pleader, or has rendered (whether before or after the o
commencement of this Code) service as a Public
Prosecutor or as an Additional Public Prosecutor .or
Assistant Public Prosecutor or other Prosecuting Officer,
by whatever name called, shall be deemed to be the period
during which such person has been in practice as an E
advocate."
37. A perusal of Section 24 would show that the central
government appoints its public prosecutors for conducting
prosecution, appeal or other proceedings on its behalf and a
state government appoints its public prosecutors in conducting F
prosecution, appeal or other proceedings on its behalf. One has
no control over the other. The central government or the state
government, as the case may be, may appoint a special public
prosecutor for the purpose of any case or class of cases. Under
Section 378(1) the state government may direct its public G
prosecutor to file an appeal from an order of acquittal while
under Section 378(2) the central government may direct its
public prosecutor to file an appeal from an order of acquittal.
The public prosecutor, thus, has to be associated in an appeal
A from an order of acquittal. The 1946 Act provides for
constitution of a special police establishment for investigation
of certain offences or class of offences as notified under
Section 3 of the 1946 Act. A close look to the provisions of
1946 Act would show that investigation thereunder is a central
s investigation and the officers concerned are under the
superintendence of the officer appointed by the central
government. It is the central government that has the
superihtendence over Delhi Special Police Establishment.
What is, therefore, important to notice is that it is the central
c government which is concerned with the investigation of the
case by Delhi Special Police Establishment and its ultimate
result. It is for this reason that sub-section (2) of Section 378
provides for appeal against acquittal in two types of cases
mentioned therein on the direction of the central government
. D by its public prosecutor. The opening words in sub-section (1),
thus, qualify the general power given to the state government
in filing appeal from an order of acquittal so that the central
agency, which is solely and intimately connected with the
investigation of cases referred in sub-section (2), may approach
E the central government for direction to appeal in appropriate
cases.
38. The decision of this Court in Eknath Shankarrao
Mukkawar1, has been referred to and relied upon by Mr. Ram
Jethmalani as well as Mr. L. Nageshwar Rao. We may
F appropriately consider the said decision now. In Eknath
Shankarrao Mukkawar1, the construction of Section 377
(appeal against inadequacy of sentence) fell for consideration.
Section 377 (1) and (2) of 1973 Code with which this Court was
concerned in Eknath Shankarrao Mukkawar1, reads as follows:-
"S.- 377.- Appeal by the State Government against
sentence.- (1) Save as otherwise provided in sub-section
(2), the State Government may, in any case of conviction
on a trial held by any court other than a High Court, direct
the Public Prosecutor to present an appeal to the High
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 367
[R.M. LODHA, J.]
Court against the sentence on the ground of its A
inadequacy.
(2) If such conviction is in a case in which the offence has
been investigated by ·the Delhi Special Police
Establishment, constituted under the Delhi Special Police 8
Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, the Central
Government may direct the Public Prosecutor to present
an appeal to the High Court against the sentence on the C
ground of its inadequacy."
This Court with reference to the aforesaid provision held:
"10. It is true that Section 378(2) follows the pattern of
Section 417(2) of the old Code and the right to appeal is D
conferred upon both the State Government and the Central
Government in express terms in Section 378(2). It is clear
that the legislature has maintained al water-tight dichotomy
while dealing with the matter of appeal against inadequacy
of sentence. We a-gree that in the absence of a similar E
word "also" in Section 377(2) it is not possible for the court
to supply a casus omissus. The two sections, Section 377
and Section 378 CrPC being situated in such close
proximity, it is not possible to hold that omission of the
word "also" in Se~ion 377(2) is due to oversight or per F
incuriam.
11. Section 377 CrPC introduces a new right of appeal
which was not earlier available under the old Code. Under
sub-section (1) of Section 377 CrPC the State Government
has a right to appeal against inadequacy of sentence in G
all cases other than those referred to in sub-section (2) of
that section. This is made clear under Section 377(1) by
its opening clause "save as otherwise provided in sub
section (2)". Sub-section .(2) of Section 377, on the other
hand, confers a right of appeal on the Central Government H
368
against a sentence on the ground of its inadequacy in two
types of cases:
( 1) Those cases where investigation is conducted by the
Delhi Special Police Establishment constituted under the
Delhi Special Police Establishment Act, 1946.
(2) Those other cases which are investigated by any other
agency empowered to make investigation under any
Central Act not being the Code of Criminal Procedure.
c 12. There is no difficulty about the first type of cases which
are investigated by the Delhi Special Police Establishment
where, certainly, the Central Government is the competent
authority to appeal against inadequacy of sentence."
39. The essence in a decision is its ratio and not every
D observation found therein, as stated by this Court in State of
Orissa v. Sudhansu Sekhar Misra and others13 • The ratio of
decision in Eknath Shankarrao Mukkawar1 is that the
Legislature has maintained a watertight dichotomy in the matter
of appeal against inadequacy of sentence; the competent
E authority to appeal against inadequacy of sentence in two types
of cases referred to in sub-section (2) of Section 377 is the
central government. However, Mr. L. Nageshwar Rao submitted
that in Eknath Shankarrao Mukkawar1, in the absence of use
of word "also" in sub-section (2) of Section 377, it was held by
F this Court that the state government was incompetent to file an
appeal in a case falling under Section 377(2). But now the
lacuna pointed out by this Court has been remedied; Parliament
amended by Act 45 of 1978 to include the word "also" therein
and bring the same in pari materia with the provisions of Section
G 378(2) and the Statement of Objects and Reasons for the said
amendment makes it clear that the state government is also
competent to file an appeal in a case falling under Section
377(2). We are not persuaded by the submission of Mr. L.
Nageshwar Rao for more than one reason. In the first place,
H 13. AIR 1968 SC 647.
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 369
[R.M. LODHA, J.]
the observations in Eknath Shankarrao Mukkawar1, in relation A
to Section 378 do not operate as binding precedent as
construction of Section 378 was neither under consideration nor
in issue in that case. Secondly, and moreJmportantly, although
sub-section (2) of Section 377 came to be amended by Act
45of1978 to include the word "also" therein, but the Statement B
of Objects and Reasons relating to that amendment is of no
relevance insofar as construction of Section 378 ( 1) and (2) is
concerned. Insofar as Section 378 is concerned, the word "also"
occurring in sub-section (2) cannot be accorded a meaning that
would result in wiping out the effect of controlling words in sub- c
section (1) - "save as otherwise provided in sub-section (2)" -
which are indicative of legislative intent to exclude two types
of cases mentioned in sub-section (2) out of operation of the
body of sub-section (1).
·40. In our opinion, the Legislature has maintained a D
mutually exclusive division in the matter of appeal from an order
of acquittal inasmuch as the competent authority to appeal from
an order of acquittal in two types of cases referred to in sub
section (2) is the central government and the authority of the
state government in relation to such cases has been excluded. E
As a necessary corollary, it has to be held, and we hold, that
the State Government (of Bihar) is not competent to direct its
public_prosecutor to present appeal from the judgment dated
December 18, 2006 passed by the Special Judge, CBI (AHO),
Pa~a. F
41. In view of what we have discussed above, it is not
necessary to consider the contention of Mr. Ram Jethmalani
founded on the proviso to Article 162 of the Constitution that in
case of conflict of exercise of executive powers by the state G
government and the central government, the decision of the
latter shall prevail.
42. For the aforesaid conclusions, the reasons given by
the High Court are not correct and the impugned order cannot
be sustained. H
A 43. The result is, both appeals are allowed, the order dated
September 20, 2007 passed by the High Court is set aside
and the Govt. Appeal No. 1 of 2007 - State of Bihar v. Latu
Prasad and others - presented before the High Court of
Judicature at Patna is rejected as not maintainable.
K.K.T. Appeals allowed.