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PETITIONER: ASSISTANT COLLECTOR OF CENTRAL EXCISE,MADRAS

       Vs.

RESPONDENT: V. KRISHNAMOORTHY & ORS

DATE OF JUDGMENT:       20/02/1997

BENCH: M.M. PUNCHHI K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Sub-Section (2)  of Section 377 of the Code of Criminal Procedure provides  the manner  in which  an appeal agaainst and order of sentence on the ground of its inadequacy can be preferred by the State Government. It reads as follows:      377. (2)  "If such conviction is in      s case in which the offence has bee      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      Government  may  also  direct)  the      Public  Prosecutor  to  present  an      appeal to  the High  Court  against      the sentence  on the  ground of its      inadequacy".      The cases in hand are such in which investigations were made by  the Customs  Officer. The  trials before  the Chief Metropolitan Magistrate led to the convictions of the accuse respondents and  orders of  sentence  were  passed.  On  the ground of inadequacy of sentence, the appeals were preferred in the  High Court  by the  Assistant Collector  of  Central Excise.  Madras   engaging  the  Central  Government  Public Prosecutor as  the Advocate  to pursue  those appeals.  Sub- section (2) afore   re-produced provides  that if an offence has  been   investigated  by   the   Delh   Special   Police Establishment constituted  under the  Delhi  Special  Police Establishment Act  1946 (Act  25 of  1946) or  by any agency empowered to  make investigation  into an  offence under any Central Act other than this Code, the right of appeal on the ground of  inadequacy of  sentence vests  with  the  Central Government and  it is  only at its direction that the Public Prosecutor can  present an  appeal to the High Court against the sentence  on the  ground of  inadequacy. Now here before the Division  Bench of the High Court was placed a reference made by  a learned Single Judge raising the question into an offence under  the provisions  of the  Indian  Customs  Act,

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within the  meaning of  Section  377  (2)  of  the  Code  of Criminal Procedure  and whether the appeal preferred by such an officer  on the  ground of inadequacy of sentence awarded was maintainable.  The High  Court by  a long discussion set out  in   the  judgment  under  appeal  has  held  that  the proceedings undertaken  by the  Customs as  the said term is understood in  Section 377  (2)  of  the  Code  of  Criminal Procedure. Sequally it was held that the Assistant Collector of Central  Excise was  not an  ‘agency’ empowered  to  make investigation within  the meaning  of Section 377 (2) of the Code of  Criminal Procedure.  The foundation  having toppled the conclusion  recorded by  the High  Court  was  that  the appeals preferred  by the  learned Advocate on behalf of the appellan-officer under  Section  377  (2)  of  the  Code  of Criminal  Procedure  were  not  competent.  Therefore  those appeals were ordered to be dismissed which has given rise to these appeals.      The debate  as to  whether the  Assistant Collector  of Central Excise is empowered to make investigation within the scope and meaning of Section 377 (2) of the Code of Criminal Procedure is  academic and  futile for  the present purposes unless and  until the appeals by themselves were competently filed by  the proper  designated  person  as  given  in  the provision. As  is evident and crystal clear it is the Public Prosecutor  who   under  the   directions  of   the  Central Government is obliged to present an appeal to the High Court against the  sentence on  the ground of its inadequacy. Such power does  not vest  with the complainant. Here the appeals have been  preferred by  the complainant  though the counsel engaged  by  the  complainant  happens  to  be  the  Central Government   Public    Prosecutor.   Plainly   a   fiduciary relationship  of   client  counsel   appears  to  have  been established. No  such situation is permissible under Section 377 (2)  of the  Code  of  Criminal  Procedure.  The  reason obvious because  the law  presumes that  it is  the  Central Government, who  through its  Public Prosdecutor  can  voice grievance  before   the  High   Court  in  relation  to  the inadequacy of sentence. The complainant has full say only in an appeal  against acquittal  under Section  378 (4)  of the Code of  Criminal Procedure  but has no locus standi to move under Section 377 (2) of the Code of Criminal Procedure. The competency of the appeals having not been established we are not obliged  to examine the correctness of the answer to the question whether  an officer of the Customs Department would be such an agency as is empowered to make investigation into an offence  under the  provisions of  the Indian Customs Act within the  meaning of  Section  377  (2)  of  the  Code  of Criminal Procedure. That question remains as it is.      The appeals are accordingly dismissed.