# Prithvi Singh v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 5 ILRA 1157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-21
- **Case number:** Crl. Misc. Application (Leave To Appeal) No. 329 of 2012
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prithvi-singh-v-state-of-u-p-ors-opp-parties-48445
- **Pages:** 15

## Headnote

Law
-
Criminal
Procedure
Code,1973 - Sections 29, 37, 372, 378,
394, 394(2), 404, 417 & 431 - Indian
Penal Code, 1860 - Section 302/34-
Criminal Application for Leave to Appeal -
against order of acquittal in a case of murder -
during pendency the appeal sole appellant were
died - in such circumstances - a question is
arises - whether the appeal filed U/s 372 Cr.P.C.
by the Victim would be abate on the death of
appellant - the right to appeal is controlled
differently when an appeal is filed under
different provisions of the code - therefore the
scheme of right of appeal under Chapter XXXIX
of Cr.P.C. which provides the right to appeals
including abatement of appeals has to be
understood on the basis of the golden rules of
statutory interpretation - in view of the light of
judgment of Avtar Singh Dhesi's present appeal
would stand abated.(Para - 23, 24, 25, 33, 48,
49)

Appeal Abated. (E-11)

List of Cases cited:-

## Text

_Characters 0–39,996 of 50,088. This is a partial read: ask again with offset=39996 for what follows._

5 All. Prithvi Singh Vs. State of U.P. & Ors.
1157
court is not perverse in nature so as to call
interference of this Court.

21. Consequently, after hearing the
learned counsel for the applicant and
examining the petition of appeal and after
going through the detailed discussion of
evidence on record, we are of the opinion
that the finding recorded by the trial court
recording acquittal of the accused is
according to the law and we find that there
is no sufficient ground for interference. The
appeal is summarily dismissed under
Section 384 of the Code of Criminal
Procedure.
----------
(2022)05ILR A1157
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Application (Leave To Appeal) No. 329
of 2012
(U/s 372 Cr.P.C.)

Prithvi Singh ...Appellant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Rajul Bhargava

Counsel for the Opp. Parties:
Govt. Advocate

Criminal
Law
-
Criminal
Procedure
Code,1973 - Sections 29, 37, 372, 378,
394, 394(2), 404, 417 & 431 - Indian
Penal Code, 1860 - Section 302/34-
Criminal Application for Leave to Appeal -
against order of acquittal in a case of murder -
during pendency the appeal sole appellant were
died - in such circumstances - a question is
arises - whether the appeal filed U/s 372 Cr.P.C.
by the Victim would be abate on the death of
appellant - the right to appeal is controlled
differently when an appeal is filed under
different provisions of the code - therefore the
scheme of right of appeal under Chapter XXXIX
of Cr.P.C. which provides the right to appeals
including abatement of appeals has to be
understood on the basis of the golden rules of
statutory interpretation - in view of the light of
judgment of Avtar Singh Dhesi's present appeal
would stand abated.(Para - 23, 24, 25, 33, 48,
49)

Appeal Abated. (E-11)

List of Cases cited:-

1. Khedu Mohton & ors. Vs St. of Bihar (1971
AIR 66 SC),

2. Avtar Singh Dhesi 6 Vs Ajaib Singh (Jabba)
2015 SCC Online P & H 10017,

3. Dhirendra Nath Das, his Lrs Malaya Das Vs St.
of Assam 2019 SCC Online Gua 5669 DB,

4. Nelson Motis Vs U.O.I., AIR 1992 SC 1981,

5. Kanailal Sur Vs Paramnidhi Sadhu Khan, AIR
1957 SC 907,

6. St. of U. P. Vs Vijay Anand Maharaj, AIR 1963
SC 946,

7. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd Vs
Custodian of Vested Forests, AIR 1990 SC 1747,

8. Raghunath Rai Bareja Vs Punjab National
Bank, (2007) 2 SCC 230,

9. Shah Bhojraj Kuverji Oil Mills & Ginning
Factory Vs Subhash Chandra Yograj Sinha, AIR
1961 SC 1596,

10. Motiram Ghelabhai (deceased L.R.) Vs Jagan
Nagar (deceased L.Rs.) & ors., AIR 1985 SC
709,

11. Sundaram Pillai Vs Pattabiraman, (1985) 1
SCC 591,

12. Government of 11 Andhra Pradesh Vs P.
Laxmi Devi, (2008) 4 SCC 720,
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Super Cassettes Industries Ltd. Vs St. of
U.P., (2009) 10 SCC 531,

14. Jugal Kishore Khetawat Vs St. of W.B.
(2011) 11 SCC 502,

15. Mallikarjun Kodagali (dead) through L.R. Vs
St. of Karn. & ors. (2019) 2 SCC 752.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. This appeal has been filed
against the order dated 7.7.2012 passed by
the Additional Sessions Judge, Court No. 5,
Hathras acquitting the respondent nos. 2
and 3 in Session Trial No. 81 of 2002
(State vs. Bhoop Singh and others) arising
out of Case Crime No. 185 of 1994, under
Sections
302/34
IPC,
Police
Station
Sadabad, District Hathras.

2. Present appeal has been filed
under Section 372 Cr.P.C. with an
application to grant leave to appeal, which
according to the judgment of Hon'ble Apex
Court is not required for the purpose of
filing appeal against acquittal by the victim
under Section 372 Cr.P.C.

3. On 31.5.2017, as learned counsel
for the appellant had been elevated as Judge
of this Court (since retired), notice was issued
to the appellant-Prithvi Singh through Chief
Judicial Magistrate, Hathras to engage
another counsel returnable within four weeks.
The compliance report dated 26.6.2017
submitted by the CJM, Hathras and the office
report dated 25.7.2017 indicates that the
appellant is dead. His death certificate issued
on 9.6.2017 indicating that he died on
1.12.2015 has also been annexed with the
compliance report.

4. No one has come forward to
claim that he shall be prosecuting this
appeal. Under such circumstances, the
question that arises in the present case is as
to whether the appeal filed under Section
372 Cr.P.C. by the victim as per proviso as
inserted by the Code of Criminal Procedure
(Amendment Act No. 5 of 2019) Section
29 dated 31.12.2009 would abate on the
death of the appellant or not in view of the
provisions of Section 394 (2) Cr.P.C.,
which provides that every other appeal
under this Chapter (except an appeal from a
sentence of fine) shall finally abate on the
death of the appellant.

5. Before proceeding further it
would be beneficial to extract relevant
provisions, which are as under:-

"The
Code
of
Criminal
Procedure, 1898 (Act V of 1898). (The
amended provisions of Cr.P.C. as existing
prior to coming into force of Code of
Criminal Procedure, 1973)
Part VII
Of Appeal, Reference and Revision
Chapter XXXI
 404. Unless otherwise provided,
no appeal to lie- No appeal shall lie from
any judgment or order of a Criminal
Court except as provided for this Code
or by any other law for the time being in
force.
 417.
Appeal
on
behalf
of
Government in case of acquittal- The
Local 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 a High Court.

431. Abatement of appeals-
Every appeal under section 417 shall
finally abate on the death of the accused,
and every other appeal under this
Chapter (except an appeal from a
sentence of fine) shall finally abate on the
death of the appellant.(emphasis supplied)
5 All. Prithvi Singh Vs. State of U.P. & Ors.
1159
Criminal Procedure Code (Act V of
1898) (As Amended by Act (XXVI of
1955)

417. Appeal in case of acquittal-
(1) Subject to the provisions of subsection (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 Established constituted under the
Delhi Special Police Establishment Act,
1946 (XXXV of 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 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.

(4) No application under subsection (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 subsection (1).(emphasis supplied)

The Code of Criminal Procedure
(Amendment) Act, 2008
[Act 5 of 2009]

Statement
of
Objects
and
Reasons- The need to amend the Code of
Criminal Procedure, 1973 to ensure fair and
speedy justice and to tone up the criminal
justice system has been felt for quite
sometime. 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. Also, as per
the Law Commission's 177th report relating
to arrest, it has been found necessary to
revise the law to maintain a balance
between the liberty of the citizens and the
society's interest in maintenance of peace
as well as law and order.

2. The need has also been felt to
include
measures
for
preventing
the
growing tendency of witnesses being
induced or threatened to turn hostile by the
accused parties who are influent, rich and
powerful. 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.
The
application
of
technology
in
investigation, inquiry and trial is expected
to reduce delays, help in gathering credible
evidences, minimise the risk of escape of
the remand prisoners during transit and also
facilitate utilisation of police personnel for
other duties. There is an urgent need to
provide relief to women, particularly
victims of sexual offences, and provide
fair-trial to persons of unsound mind who
are not able to defend themselves. To
expedite the trial of minor offences,
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
definition of warrant-case and summonscase are to be changed so that more cases
can be disposed of in a summary manner.

3.
The
Code
of
Criminal
Procedure (Amendment) Bill, 2006 seeks
to achieve the above objectives."(emphasis
supplied)

The Code of Criminal Procedure, 1973

"372. 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:

[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.](added by Act
No. 5 of 2009)

378.
Appeal
in
case
of
acquittal.--4[(1)
Save
as
otherwise
provided in sub-section (2), and subject
to the provisions of sub-sections (3) and
(5),--

(a) the District Magistrate may, in
any case, direct the Public Prosecutor to
present an appeal to the Court of Session
from an order of acquittal passed by a
Magistrate in respect of a cognizable and
non-bailable offence;

(b) 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 [not being an order under clause (a)]
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, 5[the Central Government may,
subject to the provisions of sub-section (3),
also direct the Public Prosecutor to present
an appeal-

(a) to the Court of Session, from
an order of acquittal passed by a Magistrate
in respect of a cognizable and non-bailable
offence;

(b) 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].

(3) [No appeal to the High
Court] under sub-section (1) or subsection (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 subsection (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
5 All. Prithvi Singh Vs. State of U.P. & Ors.
1161
order of acquittal is refused, no appeal
from that order of acquittal shall lie
under sub-section (1) or under subsection (2).

394. Abatement of appeals.--(1)
Every appeal under section 377 or
section 378 shall finally abate on the
death of the accused.

(2) Every other appeal under
this Chapter (except an appeal from a
sentence of fine) shall finally abate on the
death of the appellant:

Provided that where the appeal
is against a conviction and sentence of
death or of imprisonment, and the
appellant dies during the pendency of
the appeal, any of his near relatives may,
within thirty days of the death of the
appellant, apply to the Appellate Court
for leave to continue the appeal; and if
leave is granted, the appeal shall not
abate.

Explanation.--In this section,
"near relative" means a parent, spouse,
lineal
descendant,
brother
or
sister."(emphasis supplied)

6. Insofar as the law on the issue
regarding abatement of such appeal against
acquittal is concerned, as back in the year
1971 in Khedu Mohton and others vs.
State of Bihar 1971 AIR 66 SC Hon'ble
Supreme Court held as under:-

 "7. In view of our above
conclusion, it is unnecessary for us to
consider the question of law canvassed by
Mr. E. C. A- agarwal, learned Counsel for
the appellant. But as the same has been
argued we shall go into it. The appeal
before the High Court was brought after
obtaining special leave under sub-s. (3) of
s. 417, Cr.P.C. It appears that during the
pendency of the appeal, the complainant
died. It was contended before the High
Court and that contention was repeated
before us that the appeal abated in view of
the death of the complainant. This
contention was rejected by the High Court.
In support of that contention, Counsel for
the appellant relied on two decisions one of
Allahabad High Court in Nehal Ahmad v.
Ramji and the other of Madras High Court
in Thothan and anr. v. Murugan and ors.,
A.I.R. 1958 Mad 624. The first decision
has no application to the facts of the
present case. That was an appeal under S.
476 (B) of the, Cr. P.C. It is true that the
Madras decision was rendered in an appeal
under s. 417(3) of the Cr. P.C. In our
opinion, the learned single judge of the
Madras High Court erred in thinking that
the decision of the Allahabad High Court
lent any support to his conclusion that an
appeal filed under S. 417(3), Cr. P.C.
abates on the death of the complainant. The
question of abatement of criminal appeals
is dealt with by s. 431 of Criminal
Procedure Code. That section reads "Every
appeal under S. 41 1 A, sub-s. 1 ) or s. 417
shall finally abate on the death of the
accused and every other appeal under this
Chapter (except an appeal from a sentence
of fine) shall abate on the death of the
appel- lant."

8. From this section it is clear
that an appeal under s. 417 can only
abate on the death of the accused and
not otherwise. Once an appeal against an
acquittal is entertained by the High
Court, it becomes the duty of the High
Court to decide the same irrespective of
the fact the appellant either does not
choose to prosecute it or is unable to
prosecute it for one reason or the other.
The argument that while introducing sub-s.
(3) to s. 417, Cr. P.C., the Parliament
overlooked the provisions. contained in s.
43 1, does not deserve consideration. The
language
of
s.
431
is
plain
and
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
unambiguous. Therefore no question of
interpretation
of
that
provision
arises."(emphasis supplied)

7. Punjab and Haryana High Court in
Avtar Singh Dhesi vs. Ajaib Singh
(Jabba) 2015 SCC Online P & H 10017
decided on 12.5.2015 taking a different
view of the matter, although taking note of
the judgment of Hon'ble Apex Court in
Khedu Mohton (supra), held that the
appeal
would
abate.
The
aforesaid
judgment dated 12.5.2015 is quoted as
under:-

"The present appeal against the
judgment dated 11.11.2014 was preferred
by the complainant on whose complaint a
First Information Report No.20 dated
05.03.2008 for the offences under Section
364, 342, 384, 506, 323, 148, 149 of Indian
Penal Code was lodged. After the filing of
appeal, the complainant died even before
the appeal came up for motion hearing.
Admittedly, no legal heir has come
forward to continue with the present
appeal.

2.
Learned
counsel
for
the
appellant argues that even in the absence of
any legal heir, this Court is bound to decide
appeal on merits as the provisions of
Section 394 of Criminal Procedure Code
1973
(for
short 'Code'), deals
with
abatement of appeals only on account of
death of accused. Since there is no
provision for abatement of appeal filed on
behalf of the complainant, therefore, the
appeal is bound to be heard and decided on
merits. He relies upon an order passed by
the Hon'ble Supreme Court in a judgment
reported as AIR 1971 SC 66 titled Khedu
Mohton and others v. State of Bihar and
GULATI DIWAKER 2015.05.14 14:26 I
attest to the accuracy and authenticity of
this document order passed by a Division
Bench of this Court reported as 1963 PLR
191 titled Dr. Megh Raj v. Shri Joginder
Singh and others.

3. We have heard learned counsel
for the appellant and find no merit in the
said argument. Section 394 of the Code
reads as under:-

"394. Abatement of appeals. (1)
Every appeal under section 377 or section
378 shall finally abate on the death of the
accused.

(2) Every other appeal under this
Chapter (except an appeal from a sentence
of fine) shall finally abate on the death of
the appellant:

Provided that where the appeal is
against a conviction and sentence of death
or of imprisonment, and the appellant dies
during the pendency of the appeal, any of
his near relatives may, within thirty days of
the death of the appellant, apply to the
Appellate Court for leave to continue the
appeal; and if leave is granted, the appeal
shall not abate."

4. Sub-Section (1) of Section 394
of the Code deals with an appeal filed
under Section 377 and 378 of Code i.e.
appeal by the State against conviction and
sentence and appeal in the case of acquittal.
Such appeal would abate on the death of
the accused. Whereas sub-Section (2)
contemplates that all other appeals shall
abate on the death of the appellant. Since
the State has continuous existence, it is
bound to prosecute an appeal filed.
Thus, such an appeal would abate only
on death of the accused.

5. But all other appeals i.e.
other than the appeals preferred by the
State under Section 377 or 378 of the
Code would abate on the death of
appellant in terms of sub-Section (2) of
Section 394 of Code.

6. The judgments referred to by
learned counsel for the appellant are not
5 All. Prithvi Singh Vs. State of U.P. & Ors.
1163
applicable to the facts of the present
case. In Khedu Mohton's case (supra),
the appeal was preferred by the State
against the acquittal; therefore, while
interpreting Section 431 of Criminal
Procedure Code, 1898 corresponding to
Section 394 of the Code, it has been
observed that the appeal would abate
only on account of death of accused.

7. Similarly, in Dr. Megh Raj's
case (supra), the complaint was filed by the
appellant and resulted into acquittal of the
respondents. During the pendency of the
appeal, Dr. Megh Raj died. Considering
Section 431 of Criminal Procedure Code,
1898, it was held that all appeals preferred
by an accused person must abate on his
death. So far as the appeals against
acquittals are concerned, it is laid down
that they must also abate if the accused dies
but death of the appellant in an appeal
against acquittal, however, would not affect
the continuation of the appeal. The Court
held that the appeal by the complainant is
saved from abatement under Section 431 of
Criminal Procedure Code, 1898.

8. We do not find that such
judgment advances the argument raised by
the appellant in view of sub-Section (2) of
Section 394 of Code which provides that
all other appeals shall abate on the death
of the appellant Thus, the death of the
appellant during the pendency of appeal
will entail abatement of appeal.

9. Consequently, the present
appeal
stands
abated."(emphasis
supplied)

8. Guahati High Court in the case
on the death of Dhirendra Nath Das, his
Lrs Malaya Das vs. State of Assam 2019
SCC Online Gua 5669 DB held that the
appeal would not abate. Relevant paragraph
11 of the aforesaid judgment is quoted as
under:-

"11. As the provision of section
394 of the Cr.P.C., 1973 is pari materia
with that of section 431 of the Cr.PC. Of
1898, we are of the view that the same
proposition of law as laid down by the
Supreme Court would also be applicable
in respect of the provisions of section 394,
Cr.P.C. of 1973. Accordingly, we are
unable to accept the contention of the
accused-respondents that the accompanying
appeal preferred by the victim under the
proviso to section 372 of Cr.P.C. of 1973
stands abated on the death of the victim
appellant."(emphasis supplied)

9. Since the provisions of Cr.P.C.
in respect of file appeal by victim have
substantially changed and infact, the
provisions of the relevant part of Cr.P.C.
have already undergone substantial change
since the decision of Hon'ble Apex Court in
Khedu Mohton (supra), therefore, the
question framed above would have to be
considered
in
the
light
of
existing
provisions as provided under Code of
Criminal Procedure, 1973 as amended in
the year 2009 by Act No. 5 of 2009,
whereby the proviso to Section 372 Cr.P.C.
was added.

10. Before proceeding further it
would be appropriate to take note of the
principles of statutory interpretation as the
decision of the question involved in the
present case is directly dependant on the
interpretation of the statutory provisions.
For this purpose we have taken help of the
book ''Principles of Statutory Interpretation'
''13th Edition, 2012' written by Justice G. P.
Singh (Former Justice of M. P. High
Court).

11. One of the main basic
principles of interpretation is that if
meaning of words of statute are plain,
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
effect must be given to it irrespective of
consequences.

12. In Nelson Motis vs. Union of
India, AIR 1992 SC 1981 it has been
observed that when the words of a statute
are clear, plain or unambiguous, i.e., they
are reasonably susceptible to only one
meaning, the courts are bound to give
effect to that meaning irrespective of
consequences.

13.

In
Kanailal
Sur
vs.
Paramnidhi Sadhu Khan, AIR 1957 SC
907 it was observed that if the words used
are capable of one construction only then it
would not be open to the courts to adopt
any other hypothetical construction on the
ground that such construction is more
consistent with the alleged object and
policy of the Act.

14. In State of Uttar Pradesh vs.
Vijay Anand Maharaj, AIR 1963 SC 946
it was held that when a language is plain
and unambiguous and admits of only one
meaning no question of construction of a
statute arises, for the Act speaks for itself.

15. It is also a guiding rule of
interpretation that language of the statute
should be read as it is.

16. In Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd vs. Custodian of Vested
Forests, AIR 1990 SC 1747 it was
observed
that
the
intention
of
the
legislature is primarily to be gathered from
the language used, which means that
attention should be paid to what has been
said as also to what has not been said.

17. In Raghunath Rai Bareja vs.
Punjab National Bank, (2007) 2 SCC 230
Supreme Court held that departure from the
literal rule should be done only in very rare
cases and ordinarily there should be
judicial restraint in this connection.

18. Insofar as rule of ''regard to
consequences' is concerned, the aforesaid
book clearly provides that this rule has no
application when the words are acceptable
to only one meaning and no alternate
construction
is
reasonably
open.
A
reference may be made in this regard with
citations noted above which provides that if
meaning is plain, effect must be given to it
irrespective of consequences.

19. In Shah Bhojraj Kuverji Oil
Mills and Ginning Factory vs. Subhash
Chandra Yograj Sinha, AIR 1961 SC
1596 it was observed that as a general rule,
a ''proviso' is added to an enactment to
qualify or create an exception to what is in
the enactment, and ordinarily, a ''proviso' is
not interpreted as stating a general rule.

20. However, in Chapter 3 of the
aforesaid book at page 206 it has been
observed that the insertion of a ''proviso' by
the draftsman is not always strictly adhered
to its legitimate use and at times a section
worded as a ''proviso' may wholly or partly
be in substance a fresh enactment adding to
and not merely excepting something out of
or qualifying what goes before. A large
number of rulings, including the English
Law, have been noted in support of the
aforesaid observation. A reference in this
regard may be made to one of such rulings,
namely, Motiram Ghelabhai (deceased
L.R.) vs. Jagan Nagar (deceased L.Rs.)
and others, AIR 1985 SC 709.

21. Purposes of a ''proviso' were
aptly summarised in Sundaram Pillai vs.
Pattabiraman, (1985) 1 SCC 591, wherein
it was observed that by and large a proviso
5 All. Prithvi Singh Vs. State of U.P. & Ors.
1165
may serve the following four different
purposes:-

 "(1)
qualifying
or
excepting
certain
provisions
from
the
main
enactment;

(2) it may entirely change the
very concept of the intendment of the
enactment
by
insisting
on
certain
mandatory conditions to be fulfilled in
order to make the enactment workable;

(3) 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; and

(4) it may be used merely to act
as an optional addenda to the enactment
with the sole object of explaining the real
intendment
of
the
statutory
provision."(emphasis supplied)

22. However, it was observed in the
aforesaid book that the above summary
cannot, however, be taken as exhaustive
and ultimately a ''proviso' like any other
enactment ought to be construed upon its
terms.

23. Insofar as the statutes
regulating appeal are concerned, the law is
well established 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 in
Government of Andhra Pradesh vs. P.
Laxmi Devi, (2008) 4 SCC 720 and Super
Cassettes Industries Ltd. vs. State of
U.P., (2009) 10 SCC 531, it is not a natural
or inherent right and cannot be assumed to
exist, unless provided by a statute.

24. Therefore, the scheme of right
of appeal under Chapter XXXIX of the
Criminal Procedure Code, which provides
the
right
to
file
appeals
including
abatement of appeals, has to be understood
on the basis of the above golden rules of
statutory interpretation.

25. At this stage, we take note of
the golden principle of interpretation that if
the meaning of a word of a statute is plain,
effect must be given to it irrespective of
consequences. The law in this regard has
already been discussed and it needs no
repetition. The scheme of the right to
appeal as provided in the Code of Criminal
Procedure, is to be understood by going
through the development of the right to
appeal, beginning with the Code of
Criminal Procedure, 1898 (hereinafter
referred to as Cr.P.C. 1898). Part VII of
Cr.P.C.,
1898
provides
for
appeal,
reference and revision. Chapter XXXI
deals with the right to appeal. The
provision under Section 404 of Cr.P.C.
1898 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,
remained the same in the Code of Criminal
Procedure, 1973 (hereinafter referred to as
Cr.P.C. 1973). Section 417 of Cr.P.C. 1898
provided that the local government may
direct the public prosecutor to present an
appeal before the High Court from an
original or appellate order of acquittal
passed by any court, other than the High
Court. Nothing further was provided under
Section 417 Cr.P.C. 1898. However, the
heading was to the effect ''Appeal on behalf
of Government in case of acquittal'. This
clearly indicates that the intention was to
provide right to file appeal only to the
government and to no other person. This
provision has undergone a change in
Cr.P.C. 1973 and the same is now ''Appeal
in case of acquittal'. Now, there is a
detailed section divided into six sub-
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
sections. Significantly, it is provided under
sub-section (3) of Section 378 Cr.P.C. 1973
that no appeal to the High Court under subsection (1) or sub-section (2) shall be
entertained except with the leave of the
High Court. Sub-sections (1) and (2) have
taken care of several agencies of the
government.
Significantly
again,
subsection (4) of Section 378 of Cr.P.C. 1973
provides that if such an order of acquittal is
passed in any case instituted upon a
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. It is significant to note that under
sub-section (3) when an appeal is preferred,
it has to accompanied by an application for
grant of "leave to appeal", whereas under
sub-section (4) the words "special leave to
appeal" have been used, where the appeal is
proposed to be filed by a complainant,
which must be accompanied by an
application made by the complainant for
grant of such special leave to appeal. Subsection (5) of section 378 of Cr.P.C. 1973,
significantly again, has provided that no
application under sub-section (4) for grant
of ''special leave' to appeal filed by a public
servant shall be entertained by the High
Court after expiry of six months from the
date of that order of acquittal and sixty
days in every other case, meaning thereby
right of a complainant to prefer appeal is
made limited to the specified period.
Clearly, a right to file an appeal has been
created in favour of the complainant in
Cr.P.C. 1973, however, a period of
limitation has been provided. In fact, a
longer period of limitation of six months
has been provided, where the complainant
is a public servant. This clearly shows that
insofar as the provision regarding filing of
appeal against acquittal is concerned, there
is a significant change in Section 378 of
Cr.P.C. 1973 in comparison to Section 417
of Cr.P.C. 1898, as it further draws a
distinction between a complainant, who is a
public servant and broadly speaking, a
private complainant.

26. It is also clear that an appeal
by the State, broadly speaking in sessions
trial, where the case is being prosecuted by
the State agencies, is distinct and different
from the right to appeal created in favour of
a complainant, be it by a public servant or
by a private person or by any other agency.

27. Now on a comparison between
Section 404 of Cr.P.C. 1898 and Section
372 of Cr.P.C. 1973, it is clear 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'.

28. Therefore, by the aforesaid
provision a right has been created in favour
of the victim, which was not existing
earlier in the Code, that a victim shall have
right to prefer an appeal against any order
by the court acquitting the accused or
convicting for a lesser offence or imposing
inadequate compensation. If we have a
glance over the statement of objects and
reasons in paragraph 2, it is very much
5 All. Prithvi Singh Vs. State of U.P. & Ors.
1167
clear that while dealing with the right of the
victims it has been 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.
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.

29. It is, therefore, clear that as per
the golden rule of interpretation, this
''proviso' is a substantive enactment and it
is not merely excepting something out of,
or qualifying what was excepting or goes
before. Therefore, by adding the ''proviso'
in Section 372 of Cr.P.C. 1973 by this
amendment, a right has been created in
favour of the victim.

30. At this stage, it would be
appropriate to take note of the definition of
''victim' as inserted by the Code of Criminal
Procedure (Amendment) Act, 2008 (Act 5
of 2009) by adding sub-section (wa) in
Section 2, which provides that "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'.

31. It is also a settled law, as
interpreted by the Supreme Court and
various High Courts, that victim does not
include each and every person or merely an
informant,
who
has
lodged
a
first
information report and the term ''victim' has
to be interpreted as per the definition noted
above. We need not go deep into the same.
Therefore, from a perusal of the scheme of
the right to appeal against acquittal, as
reflected from a reading of the above noted
provisions, it is clear that initially the right
to appeal was exclusively with the State
Government and it was not available even
to the complainant, even if a public servant
was a complainant, leave alone a private
individual or any other agency.

32. As has already been noticed,
Section 417 of Cr.P.C. 1898 provided for
appeal on behalf of the government in cases
of acquittal and no other person was
authorized to file appeal and that this
provision has undergone a major change in
Cr.P.C.
1973,
Section
378
whereof
provides for appeal in cases of acquittal.
The term local government has been
substituted with several individual agencies
to which we are not concerned, however,
this is to be noted that even the right of a
public servant to file appeal, who is a
complainant, has been made limited to be
exercised within six months and private
complainant can come forward with an
application for grant of special leave to
appeal from the order of acquittal, which
has been limited to sixty days only.
Therefore, clearly, the legislature was
always conscious of the extent to which the
right to appeal is to be provided to different
agencies, where they appear in a different
capacities.

33. It further appears that the word
''leave' and ''special leave' have been
consciously used by the legislature in
Section 378 of Cr.P.C. 1973 obviously with
an intention that the grant of leave in a case
of complaint should be more strict in nature
and may require deeper scrutiny before any
such leave to appeal is granted than the
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
leave to appeal to be granted in sessions
trial cases. Thus, the right to appeal is
controlled differently when an appeal is
filed under different provisions of the
Code.

34. Now coming to the provisions
regarding abatement of appeals, we may
note that vide Section 431 of Cr.P.C. it was
provided that every appeal under Section
417 (appeal on behalf of government in
case of acquittal) shall finally abate on the
death of the accused and every other appeal
under this Chapter (except an appeal from a
sentence of fine) shall finally abate on the
death of the appellant. This provision has
also undergone a substantial change in
Cr.P.C. 1973. Sub-section (1) of Section
394 of Cr.P.C. 1973 provides that every
appeal under Section 377 or Section 388
shall finally abate on the death of the
accused.

35. We are not concerned with
Section 377 for the purpose of the present
controversy, as Section 377 relates to
''appeal by the State Government against
sentence' and is not related to the appeals in
cases of acquittal.

36. As we have already noticed
that Section 378 of Cr.P.C., 1973 has
undergone a major change, which provides
''appeal in case of acquittal' in comparison
to Section 417 of Cr.P.C., 1898, which
provides ''appeal on behalf of Government
in case of acquittal'. The distinction has
already been taken note of in the preceding
paragraphs.

37. The second part of Section 431
of Cr.P.C. 1898, broadly speaking, has now
been changed as significantly a ''proviso'
has been added in sub-section (2) and an
explanation has also been added to the
entire Section 394 of Cr.P.C. 1973. We
may take note of the ''proviso' to Section
394 Cr.P.C. once again, which provides
that ''where the appeal is against a
conviction and sentence of death or of
imprisonment, and the appellant dies
during the pendency of the appeal, any of
his near relatives may, within thirty days of
the death of the appellant, apply to the
Appellate Court for leave to continue the
appeal; and if leave is granted, the appeal
shall not abate'. The explanation to Section
394 provides that in this section ''near
relative' means a parent, spouse, lineal
descendant, brother or sister. In the
''proviso' added to sub-section (2) in
Section 394 of Cr.P.C. 1973 it is important
to note that it is in respect of an appeal
against conviction and sentence of death or
of imprisonment and not in respect of an
appeal against acquittal. It further provides
that if the appellant dies during the
pendency of the appeal, any of his near
relatives may, within thirty days from the
death of the appellant, apply to the
appellate court for leave to continue the
appeal and if leave is granted, the appeal
shall not abate. Thus, clearly this proviso to
sub-section (2) of Section 394 Cr.P.C.
1973, is only in respect of appeal against
conviction and sentence of death or of
imprisonment and only near relatives as
provided in the explanation, may apply for
leave to continue the appeal within thirty
days from the death of the appellant, and if
leave is granted, the appeal shall not abate.
Why this provision was added has been
taken note of by the Supreme Court in
Jugal Kishore Khetawat vs. State of
West Bengal (2011) 11 SCC 502 wherein
it was held that this is to provide a
machinery whereby the children or the
members of the family of a convicted
person who dies during the appeal, could
challenge the conviction and get rid of the
5 All.