# LALU PRASAD YADAV v. STATE OF BIHAR & ANR

- **Citation:** [2010] 4 S.C.R. 334
- **Court:** Supreme Court of India
- **Decided:** 2010-04-01
- **Case number:** Criminal Appeal No. 662 of 2010
- **Bench:** K.G. Balakrishnan, R.M. Lodha, Dr. 8.5. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lalu-prasad-yadav-v-state-of-bihar-anr-26648
- **Pages:** 37

## Headnote

Code of Criminal Procedure, 1973 - s. 378(1) and (2) -
C Appeal against acquittal - Right of State Government to file
-· In a case where offence was investigated by Delhi Special
Police Establishment (CBI) - Held: State Government is not
the competent authority to file an appeal against acquittal in
such cases -
The opening words of s. 378(1) "save as
o otherwise provided in sub-section (2)" are intended to exclude
the class of cases, mentioned in sub-section (2) out of the
operation of the body of Sub-section (1) - Delhi Special Police
Establishment Act, 1946 - Code of Criminal Procedure, 1898
- s. 417.
E
Interpretation of Statutes:
Changes in wordings and phrasing of statutory provision
- Held: Such changes may be presumed to have been
deliberate and with purpose to limit, qualify or enlarge the pref
existing law, as the changes of the words employ - Any
construction which makes the ext!eption clause, with which the
Section opens, unnecessary and redundant, should be
avoided.
G
Construction of statute - Language of a statute should
be read as it is - Any construction resulting in rejection of
words has to be avoided - However, such rule of construction
is not without exception.
H
334
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 335
Precedent - The essence in a decision is its ratio and A
not every observation found therein - The observations in a
judgment do no operate as a binding precedent.
Words and Phrases: 'Save' - Meaning of, in the context
of s. 378(1) Cr.P.C.
The question for consideration in the present
appeals was whether the State Government has
competence to file an appeal from the judgment passed
B
by Special Judge, CBI (AHO) acquitting the accused
persons as the c~se has been investigated by the Delhi C
Special Police Establishment (CBI).
Appellant-accused and CBI contended that the cases
are covered u/s. 378(2) Cr.P.C. and are excluded from the
purview of s. 378(1) by virtue of the opening clause in 0
sub-section (1) "Save as otherwise provided in subsection (2)".
Respondent-State Government contended that use
of expressions "in any case" in sub-section (1) and "also"
in sub-section (2) indicates that legislature intended that E
general rule would be that State Government may file an
appeal in any and every case and Central Government
may additionally fil~ an appeal in a case covered by subsection (2); and that ss. 377 and 378 Cr.P.C. are in pari,
materia and interpretation given to s. 377 in Eknath
F
Shankarrao Mukkawar case, needs to be accorded to s.
378.
Allowing the appeals, the Court
HELD: 1.1. Legislature has maintained a mutually G
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
H
336
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A and the authority of the State Government in relation to
such cases has been excluded. As a necessary corollary,
it has to be held, that the State Government is not
competent to direct its public prosecutor to present
appeal from the judgment passed by the Special Judge,
B CBI (AHO), Patna. [Para 40] [369-0-E]
1.2. The opening words of Section 378(1) Cr.P.C. -
"Save as otherwise provided in sub-section (2)" - are in
the nature of exception intended to exclude the class of
C cases mentioned i~ sub-section (2) out of operation ~f the
body of sub-section (1 ). These words have no other
meaning in the context but to qualify the operation of
sub-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
D Police ·Establishment constituted under Delhi Special
Police Establishment Act, 1946 and (ii) the cases in which
the offence has been investigated by any other agency
empowered to make investigation into an offence under
any Central Act other than Cr.P.C. [Para 27] [355-G-H]
E
1.3. By construing Section 378

## Text

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A
B
[2010] 4 S.C.R. 334
LALU PRASAD YADAV
v.
STATE OF BIHAR & ANR.
(Criminal Appeal No. 662 of 2010)
APRIL 1, 2010
[K.G. BALAKRISHNAN, CJI., R.M. LODHA AND DR. 8.5.
CHAUHAN, JJ.]
Code of Criminal Procedure, 1973 - s. 378(1) and (2) -
C Appeal against acquittal - Right of State Government to file
-· In a case where offence was investigated by Delhi Special
Police Establishment (CBI) - Held: State Government is not
the competent authority to file an appeal against acquittal in
such cases -
The opening words of s. 378(1) "save as
o otherwise provided in sub-section (2)" are intended to exclude
the class of cases, mentioned in sub-section (2) out of the
operation of the body of Sub-section (1) - Delhi Special Police
Establishment Act, 1946 - Code of Criminal Procedure, 1898
- s. 417.
E
Interpretation of Statutes:
Changes in wordings and phrasing of statutory provision
- Held: Such changes may be presumed to have been
deliberate and with purpose to limit, qualify or enlarge the pref
existing law, as the changes of the words employ - Any
construction which makes the ext!eption clause, with which the
Section opens, unnecessary and redundant, should be
avoided.
G
Construction of statute - Language of a statute should
be read as it is - Any construction resulting in rejection of
words has to be avoided - However, such rule of construction
is not without exception.
H
334
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 335
Precedent - The essence in a decision is its ratio and A
not every observation found therein - The observations in a
judgment do no operate as a binding precedent.
Words and Phrases: 'Save' - Meaning of, in the context
of s. 378(1) Cr.P.C.
The question for consideration in the present
appeals was whether the State Government has
competence to file an appeal from the judgment passed
B
by Special Judge, CBI (AHO) acquitting the accused
persons as the c~se has been investigated by the Delhi C
Special Police Establishment (CBI).
Appellant-accused and CBI contended that the cases
are covered u/s. 378(2) Cr.P.C. and are excluded from the
purview of s. 378(1) by virtue of the opening clause in 0
sub-section (1) "Save as otherwise provided in subsection (2)".
Respondent-State Government contended that use
of expressions "in any case" in sub-section (1) and "also"
in sub-section (2) indicates that legislature intended that E
general rule would be that State Government may file an
appeal in any and every case and Central Government
may additionally fil~ an appeal in a case covered by subsection (2); and that ss. 377 and 378 Cr.P.C. are in pari,
materia and interpretation given to s. 377 in Eknath
F
Shankarrao Mukkawar case, needs to be accorded to s.
378.
Allowing the appeals, the Court
HELD: 1.1. Legislature has maintained a mutually G
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
H
336
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A and the authority of the State Government in relation to
such cases has been excluded. As a necessary corollary,
it has to be held, that the State Government is not
competent to direct its public prosecutor to present
appeal from the judgment passed by the Special Judge,
B CBI (AHO), Patna. [Para 40] [369-0-E]
1.2. The opening words of Section 378(1) Cr.P.C. -
"Save as otherwise provided in sub-section (2)" - are in
the nature of exception intended to exclude the class of
C cases mentioned i~ sub-section (2) out of operation ~f the
body of sub-section (1 ). These words have no other
meaning in the context but to qualify the operation of
sub-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
D Police ·Establishment constituted under Delhi Special
Police Establishment Act, 1946 and (ii) the cases in which
the offence has been investigated by any other agency
empowered to make investigation into an offence under
any Central Act other than Cr.P.C. [Para 27] [355-G-H]
E
1.3. 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
F to the exception (clause) articulated in the opening
words. The words - "save as otherwise provided in subsection (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
G may be presumed to have 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 a Section opens
unnecessary and redundant should be avoided. If
Section 378, sub-sections (1) and (2) is given the
H
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 337
interpretation which the State Government claims, that
A
would be rendering the exception (clause)-reflected in the
opening words "save as otherwise provided in subsection (2)" - redundant, meaningless and unnecessary.
[Para 27] [356-B-F]
1.4. If the Legislature had intended to give the right
of appeal u/s. 378(1) to the State Government in all cases
B
of acquittal including the class of cases referred to in
sub-section (2), it would not have been necessary to
incorporate the exception (clause) in the opening words.
C
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 types of cases mentioned in subsection (2) thereof, appeal from the order of acquittal
could be filed under the direction of Central Government D
as well. [Para 27] [356-G-H]
1.5. If a latter statute repealing and re-enacting former
statute does not use the same language as in the earlier
one, the alteration must be taken to have been made
E
deliberately. The Parliament in 1973 Code re-enacted the
provision 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
F
gives rise to an inference that the Legislature made
conscious changes in Section 378 (1973 Code). 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
G
Code). [Paras 29 and 31] [357-D; 360-E~F]
Khemraj vs. State of Madhya Pradesh (1976) 1 SCC
385, held inapplicable.
H
338
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A
Union of India and Anr. v. Hansoli Devi and Ors (2002)
B
7 SCC 273; The Bengal Immunity Company Limited v. The
State of Bihar and Ors. (1955) 2 SCR 603; D.R. Fraser & Co.
Ltd. v. The Minister of National Revenue AIR 1949 PC 120,
referred to.
Robert Mitchell v. Soren Torup (1766) Parker 227;
Becke v. Smith (1836) 2 Meeson and Welsby 191; The
Attorney-Genera/ v. Lockwood (1842) 9 Meeson and Welsby
378; The Sussex Peerage case (1844) XI Clark & Finnelly
C 85; Williams v. Milotin 97 C.L.R.465, referred to.
Concise Oxford English Dictionary (Tenth Edition,
Revised); Webster Comprehensive Dictionary (International
Edition); 'A Dictionary of Modern Legal Usage' by Bryan A.
Garner (1987); 'Principles of Statutory Interpretation' by G.P.
D Singh, 12th Edition, 2010 page 310, referred to.
2.1. 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
E avoided; the effort should be made to give meaning to
each and every word used by the Legislature. However,
such rule of construction of statutes is not without
exceptions. [Para 32] [361-C]
Stone v. Yeovil Corp. (1875-76) LR. 1 CPD 691;
F Salmon v. Duncombe and Ors. (1886) 11 AC 627, referred
to.
2.2. The main object and legislative intent by the
opening words - "save as otherwise provided in subG section (2)" - in sub-section (1) of Section 378 Cr.P.C,
1973 being clear i.e., Jo 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-section (2),
the use of word "also" in sub-section (2) does not make
H
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 339
any sense. The word "also" in sub-section (2), if A
construed in the manner suggested by the State.
Government, may result in reducing the opening words
in s4b-section (1) a nullity and will deny these words their
full play. Since exception (clause) in the beginning of subsection (1) has been expressly added in Section 378 and
B
it is not possible to harmonise the word "also" occurring
in sub-section (2) with that, it appears that no sensible
meaning can be given to the word "also" and the said
word has to be treated as immaterial. To declare "also"
enacted in sub-section (2) immaterial or insensible is not c
very satisfactory, but it is much more unsatisfactory to
deprive the words - "save as otherwise provided in subsection (2)" - of their true and plain meaning. In order that
the exception (clause) expressly stated in the opening
words of sub-section (1) might be preserved, it is 0
necessary that word "also" in sub-section (2) is treated
as immaterial. [Para 34) [362-D-G; A]
3.1, The phrase "in any case" in sub-section (1) of
Section 378 means "in all cases", but the opening words
in the said Section put fetters on the State Government E
in directing appeal to be filed in two types of cases
mentioned in sub-section (2). A perusal of Section 24
Cr.P.C. would show that the Central Government
appoints its public prosecutors for conducting
prosecution, appeal or other proceedings on its behalf F
and a State Government appoints its public pr,,secutors
in conducting 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 G
purpose of any case or class of cases. Under Section
378(1) the State Government may direct its public
prosecutor to file an appeal from an order of acquittal
while under Section 378(2) the Central Government may
H
340
SUPREME COURT REPORTS
[2010] 4 S.C.R.
A direct its public prosecutor to file an appeal from an order
of acquittal. The public prosecutor, thus, has to be
associated in an appeal from an order of acquittal. [Para
35, 37) [363-B; 365-F-H]
8
3.2. 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
investigation and the officers concerned are under the
C superintendence of the officer appointed by the Central
Government. It is the Central Government that has the
superintendence
over
Delhi
Special
Police
Establishment. Therefore, it is the Central Government
which is concerned with the investigation of the case by
D ·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 by its public prosecutor. The opening words
E in sub-sel:tion (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 the Central
F Government for direction to appeal in appropriate cases.
[Para 37) [366-A-E]
4. The essence in a decision is its ratio and not every
observation found therein. The ratio of decision in Eknath
Shankarrao Mukkawar case is that the Legislature has
G maintained a watertight dichotomy in the matter of appeal
against inadequacy of sentence; the competent authority
to appeal against inadequacy of sentence in two types
of cases referred to in sub-section (2) of Section 377 is
H
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 341
[R.M. LODHA, J.]
the Central Government. However, it is not correct to say A
that in Eknath Shankarrao Mukkawar case in the absence
of use of word "also" in sub-section (2) of Section 377, it
was held by this Court that the State Government was
incompetent to file an appeal in a case falling under
Section 377(2) and that Parliament remedied the lacuna B
by Act 45 of 1978 to include the word "also" therein and
bring the same in pari materia with the provisions of
Section 378(2) and that 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 c
a case falling under Section 377(2). In the first place, the
observations in Eknath Shankarrao Mukkawar case in
relation 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, 0
and more importantly, although sub-section (2) of Section
377 came to be amended by Act 45of1978 to include the
word "also" therein, but the Statement 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 E
"also" occurring in sub-section (2) cannot be accorded
a meaning that would result in wiping out the effect of
controlling words in sub-section (1) - "save as otherwise
provided in sub-section (2)" - which are indicative of
legislative intent to exclude two types of cases mentioned F
in sub-section (2) out of operation of the body of subsection (1). [Para 39] [368-D-H; 369-A-C]
Eknath Shankaffao Mukkawar vs. State of Maharashtra
(1977) 3 SCC 25, explained and held inapplicable.
G
State of Orissa v. Sudhansu Sekhar Misra and Ors. AIR
1968 SC 647, relied on.
H
A
B
c
342
SUPREME COURT REPORTS
Case Law Reference:
(1766) Parker 227
(1836) 2 Meeson and
Welsby 191
(1842) 9 Meeson and
Welsby 378
(1844) XI Clark &
Finnelly 85
(2002) 1 sec 213
97 C.L.R. 465
(1955) 2 SCR 603
Referred to.
Referred to.
Referred to.
[2010] 4 S.C.R.
Para 17
Para 18
Para 19
D
AIR 1949 PC 120
Referred to.
Referred to.
Referred to.
Referred to.
Referred to.
Para 20
Para 21
Para 25
Para 28
Para 29
(1976) 1 sec 385
held inapplicable. Para 30
(18'15-76) LR. 1 CPD 691 Referred to.
E
(1886) 11 AC 627
Referred to.
Para 32
Para 33
F
G
(1977) 3 sec 25
Explained and
Para 39
held inapplicable.
AIR 1968 SC 647
Relied on.
Para 39
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 662 of 2010.
From the Judgment & Order dated 20.9.2007 of the High
Court of Judicature at Patna in Govt. Appeal No. 1 of 2007.
WITH
Crl.A. No. 670 of 2010.
Ram Jethmalani, Pravin H. Parekh, Chitranjan Sinha, A.
H
Mariarputham, L. Nageshwar Rao, Lata Krishnamurti, P.R.
LALU PRASAD YADAV v. STATE OF BIHAR & ANR. 343
Mala, E.R. Kumar, Sameer, Parekh, sa·urabh Ajay Gupta, A
Somandari Gaud, Pranav Diesh (for Parekh & Co.) T.A. Khan,
Devadatt Kamat, Arvind, K. Sharma, P.K. Dey (for B. Krishna
Prasad), Vishwajit Singh, Veera Kaul Singh, Ritesh Agarwal,
Siddharth Sengar, Abhindra Maheshwari for the appearing
parties.
B
The Judgment of the Court was delivered by
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.
H
A
B
c
D
344
SUPREME COURT REPORTS
[2010] 4 S.C.R.
(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
H
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
346
SUPREME COURT REPORTS
[2010] 4 S.C.R.
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.
D
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 subsection (2)" and by these words whatever is covered by subsection (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 subsection (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 subsection (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
348
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[2010] 4 S.C.R.
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
G
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 subsection (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
G
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
350
SUPREME COURT REPORTS
[2010] 4 S.C.R.
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:-
B
c
D
E
F
G
"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
D
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:
F
" ..... 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.
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[2010] 4 S.C.R.
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:
E
F
"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
354
SUPREME COURT REPORTS
[2010] 4 S.C.R.
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'.
E
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. SubF 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)". Subsection (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 subsection (3). Sub-section (3) provides that an appeal under subsections ( 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.