http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: KHEMRAJ

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT19/11/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. BEG, M. HAMEEDULLAH

CITATION:  1976 AIR  173            1976 SCR  (2) 753  1976 SCC  (1) 385

ACT:      Indian Penal  Code-Ss. 465  r/W 471-Whether  the  State appeal against  the acquittal  under Ss.  465 r/w  471.  but conviction under  section 420 I.P.C. competent under section 417(2) df the Criminal Procedure Code, 1898-Scope of 417(2)

HEADNOTE:      ’K’ was  charged and  tried- for the offences under Ss. 465 r/w 471, for using a forged B.Sc. Certificate and a Date of Birth  Certificate Convicted  under section 420 I.P.C. by the trial  court and  sentenced to Rigorous Imprisonment for one year  and to  pay a  fine of Rs. 500/ . On an appeal the conviction was  maintained, but  the sentence was altered to one of six months Rigorous Imprisonment.      On an  appeal by the State and the Revision by ’K’, the revision petition  was  dismissed  and  the  appeal  allowed convicting him  under Sections  465 &  471 Indian Penal Code and sentenced to one year Rigorous Imprisonment. D      On an  appeal by  special leave,  on  the  question  of competency of  the state  appeal under section 417(2) of the Criminal Procedure  Code 1898, in a case investigated by the Delhi Special  Police Establishment,  while  dismissing  the appeal, the Court ^      HELD: (i)  Under section  5 of the Delhi Special Police Establishment Act  1946 (Act XXV of 1946) the powers and the jurisdiction of  the 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 members  of the Police force of the area  and are  vested with  such  powers  functions  and privileges and  are subject  to the  liabilities of a police officer belonging to that force. [756 BC]      (ii) Investigation  under the  Delhi Act  is a  central investigation and  the Central  Government is concerned with the investigation  of the cases by the Establishment and its ultimate result.  It is  in that  background  that  in  1955 section 417  Cr-P.C. was  amended adding  sub section (2) in the section  to provide  for appeal  against acquittal. [756 CE]      (iii) This,  however, does  not bar the jurisdiction of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the State  Government also to direct presentation of appeals when it  is moved by the Establishment The Establishment can move either  the Central Government or the State Government. It will be purely a matter of procedure. [756 E]      (iv) The  word "also" in sub section (2) of section 417 of the Criminal Procedure Code does not 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 section is "in any case". [756-G-Hl      (v) There  is no  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 is  addition to direct the public prosecutor to appeal. [756H, 757A] 754

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 1 34 Of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated the  11th December  1974 of  the Madhya  Pradesh  High Court in Criminal Revision No. 729 of 1970.      S.S. Khanduja for the Appellant.      Ram Panjwani,  Dy. Advocate Genl. (M.P.), H. S. Parihar and K. N. Shroff, for the Respondent.      The Judgment of the Court was delivered by      GOSWAMI, J.  In this  appeal by  special leave the only point that  arises for  consideration is  whether the appeal filed by  the State  of Madhya  Pradesh in  the  High  Court against the  order  of  acquittal  of  the  appellant  under section 465  read with  section 471 or the Indian Penal Code was competent under the law.      The  accused  (appellant)  secured  an  appointment  of Senior operator  Trainee in  the  Bhilai  Steel  Project  by submitting two  forged certificates.  The first  certificate was  regarding   his  passing   the  Bachelor   of   Science examination with  Mathematics,‘ Physics and Chemistry in 2nd Division from  the University  of Sagar. The second document was an  attested copy  of his  Matriculation certificate  in proof of  age where  his date  of birth was shown as ‘August 21, 1941. ’ ,,      The minimum  educational qualification for the post was that  the   candidate  must  be  a  Science  Graduate  of  a recognised University with  any  two of  the three  subjects Mathematics,  Physics  and Chemistry and  the age limit was prescribed between 18 to 23 years as on 1-10-1963.      The  accused   who  registered  himself  as  a  Science Graduate in  the Employment  Exchange, Bhilai, was sponsored for the  above mentioned  post on  January 28,  1964. He was ultimately selected  for the  post placing  reliance on  the aforesaid two certificates and the joined the appointment.      That,  as   it  transpired,  prosecution  was  launched against the  accused on  the complaint of the Superintendent of Police, Delhi Special police establishment, Jabalpur, and a case  was registered  against him  under sections 182, 471 and 420  IPC. Indue  course a  charge  sheet  was  submitted against the  accused and he was tried  under section 465/471

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

and section  ,420 IPC.  According  to  the  prosecution  the accused was  ’born on  August 21, 1936 and he had not passed his B.Sc.  ’’ examination  at all  and after  tendering  the forged certificates procured the employment.      The accused  was tried by the Special Magistrate, First Class, Jabalpur,  for offences  under Section  465 read with section 471  and under  section 420  IPC.  The  trial  court acquitted the  accused under  section 465  read with section 471  IPC  and  convicted  him  under  section  420  IPC  and sentenced him to rigorous imprisonment for one 755 year and  to pay a fine of Rs. 500/-. The learned Additional Sessions A  Judge on  appeal maintained  the conviction  but reduced the  sentence to  six months’  rigorous imprisonment maintaining the fine.      The State  of Madhya Pradesh preferred an appeal to the High Court  against  the  acquittal  of  the  accused  under section 465  read with  section 471’  IPC. The  accused also preferred a  revision  application  against  his  conviction under section  420 IPC. Both the matters were heard together and by  a common  judgment  the  High  Court  dismissed  the revision application  of the accused and allowed the State’s appeal and convicted the accused under section 465 read with section 471  and sentenced  him to rigorous imprisonment for one year. Hence this appeal by special leave.      It is  submitted on  behalf of  the appellant  that the appeal to  the High  Court was  not competent in view of the provisions of section 417(2) of the Criminal Procedure Code      It is  admitted that  this case  is governed by the old Criminal Procedure  Code, 1898.  We may,  therefore, at once read section  417, Criminal  Procedure Code,  so far  it  is relevant for our purpose:           "417(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 lnvestigated 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".      *               *             *              *      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  introducer  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. Furthe  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), Cr. P.C.      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

756 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 members of the Police force of the area and are vested 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 incharge of  a police  station in  the extended  area. Under section 6  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.      Investigation under  the Delhi  Act  is,  therefore,  a central 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 of the cases by the  Establishment and its ultimate result. It is in that background that  in 1955  section 417  was amended by adding subsection (2)  to the section to provide for appeal against acquittal in cases investigated by the Establishment also on the direction  of the  Central 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  to   appeal   in appropriate cases.      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 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 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.      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 757 cases, Sub-section’  (1) of  section 417  being  in  general terms is  as A  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

prosecutor to appeal.      In the present case we find from the documents produced before us  that the  move was  made by  the  Superintendent, Delhi  Special   Police  Establishment,  by  requesting  the Secretary,  Law  Department  of  the  Government  of  Madhya Pradesh and  the decision  was taken by the State Government as it  appears from the letter- of the Under Secretary dated January 28,  1969, to  the Advocate General, Madhya Pradesh. The appeal was thereafter‘ filed in the name of the State of Madhya Pradesh.  No objection, therefore, can be taken about the competency  of the  appeal being  filed by  the State of Madhya Pradesh in this case.      As a  matter of  procedure it  will be even permissible for the  appeal against  acquittal to be filed by the public prosecutor under  the direction  of the  State Government or the Central Government without impleading either as a party.      The objection of the appellant is, therefore, devoid of substance. We  may mention  that no  such objection was even taken in  the High Court. In the result the appeal fails and is dismissed. S.R.                                       Appeal dismissed. 758