REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 662 OF 2010 [Arising out of SLP (Crl.) No. 6563 of 2007]

Lalu Prasad Yadav & Anr. ….Appellants

Vs.

State of Bihar & Anr. ….Respondents

WITH

CRIMINAL APPEAL NO  .   670 OF 2010   [Arising out of SLP (Crl.) No. 6821 of 2007]

Central Bureau of Investigation ….Appellant

Vs.  

State of Bihar & Ors. ….Respondents

JUDGMENT

R.M. LODHA,J.

Leave granted.  

2. Section 378  of  Code of  Criminal  Procedure,  1973 (for  

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  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 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, the Central Government may also  direct  the  Public  Prosecutor  to  present  an  appeal,  subject to the provisions of sub-section (3), to the High  Court from the order of acquittal.   

(3) No appeal under sub-section (1) or sub-section (2)  shall be entertained except with the leave of the High  Court.

(4) If such an order of acquittal is passed in any case  instituted  upon  complaint  and  the  High  Court,  on  an  application made to it by the complainant in this behalf,  grants  special  leave  to  appeal  from  the  order  of  acquittal, the complainant may present such an appeal  to the High Court.

(5) No application under sub-section (4) for the grant of  special leave to appeal from an order of acquittal shall  be entertained by the High Court after the expiry of six  months, where the complainant is a public servant, and  sixty days in every other case, computed from the date  of that order of acquittal.

(6) If, in any case, the application under sub-section (4)  for the grant of special leave to appeal from an order of  acquittal  is  refused,  no  appeal  from  that  order  of  acquittal  shall  lie under sub-section (1)  or  under sub- section (2).”

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3. The main question presented,  in  light  of  the aforesaid  

provision is, namely, as to whether the State Government (of Bihar)  

has  competence  to  file  an  appeal  from  the  judgment  dated  18th  

December,  2006  passed  by  Special  Judge,  CBI  (AHD),  Patna,  

acquitting the accused persons when the case has been investigated  

by the Delhi Special Police Establishment (CBI).   

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 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 matter  of  fact,  lodgement  of  FIR was sequel  to  direction by the  

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 and Smt. Rabri Devi in the  

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Court of Special Judge, CBI (AHD), 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 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 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 (AHD), Patna, upon conclusion of trial, vide its  

judgment dated December 18, 2006 acquitted  the accused  holding  

that prosecution failed to prove 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 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  

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18, 2006 before the High Court of Judicature at 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  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 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 accused  and the  other  by  CBI.  

7. We heard Mr.  Ram Jethmalani,  learned senior  counsel  

(for  accused) and Mr. A. Mariarputham, learned senior counsel (for  

CBI)  –  appellants  –  and  Mr.  L.  Nageshwar  Rao,  learned  senior  

counsel for the state government.   

8. Mr. Ram Jethmalani submitted that the competence of the  

state government to file an appeal from the judgment and order of  

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acquittal is to be determined by Section 378 of the 1973 Code  as it  

existed prior to 2005; the law in force on the date of the chargesheet.  

He would submit that the key words in Section 378(1) are : “Save as  

otherwise provided in sub-section (2)” and by these words whatever  

is covered by sub-section (2) is left outside the purview of sub-section  

(1).  According to him, the word “also” in sub-section (2) refers to 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 by the Governor of the State.   Learned senior  

counsel argued that the High Court  by giving undue weight  to the  

word “also” in sub-section (2) has made the opening key words in  

sub-section (1) of Section 378 wholly redundant and useless thereby  

defeating the intention of the Legislature.   He would, thus, submit  

that the court has to adopt one of the two courses, namely, (i) assign  

to the word another of its meanings which 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 v. State  

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of Maharashtra1, 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 Pradesh2 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.    

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 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  brought  changes  in  erstwhile  

Section 417 of 1898 Code and made its intention clear to take class  

of cases covered by sub-section (2) out of purview of sub-section (1).  

1 (1977) 3 SCC 25 2 (1976) 1 SCC 385

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12. On the other hand, Mr. L. Nageshwar Rao, learned 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 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 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 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 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  interpretation  to  the  expression  “save  as  

otherwise provided in sub-section (2)”,  sought to be placed by the  

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appellants, is not in accordance with the logic or the plain 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  interpretation  one  should  not  

concentrate too much on one word and pay too little attention to other  

words and no provision in the statute and no word in the section can  

be construed in isolation and every provision and every word must be  

looked at generally and in the context in which it is used.    

13.  Relying upon the case of Eknath Shankarrao Mukkawar1,  

Mr. L. Nageshwar Rao submitted that this Court has held that in the  

absence of use of the word “also” in sub-section (2) of Section 377,  

as contained in sub-section (2) of Section 378, the state government  

was incompetent  to  file  an appeal  in  a case falling under  Section  

377(2) and now in order 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 after  

the said amendment,  the state government is also competent to file  

an appeal in a case falling under Section 377(2).   Learned senior  9

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 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 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 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 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.        

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15.  In  the  Code  of  Criminal  Procedure,  1861,  Section  407  

prohibited an appeal from acquittal.  For the first time,   the Code  

of  Criminal  Procedure,  1872  provided  for  an  appeal  by  the  

government from an order of acquittal  (Section 272).   The said  

provision was re-enacted in Section 417 of the Code of Criminal  

Procedure, 1882.   The provision concerning an appeal in case of  

acquittal  was  retained  in  Section  417  of   1898  Code.   The  

provision  relating  to  an  appeal  from order  of  acquittal  in  1898  

Code  (as  amended by Amendment  Act  26 of  1955)  reads as  

under:-

“S. 417.-  Appeal in case of acquittal.-   (1) Subject to  the provisions of sub-section (5), the State Government  may,  in  any  case,  direct  the  Public  Prosecutor  to  present an appeal to the High Court from an original or  appellate order of acquittal passed by any Court other  than a High Court.

(2) If such an order of acquittal is passed in any case  in which the offence has been investigated by the Delhi  Special  Police  Establishment  constituted  under  the  Delhi  Special  Police  Establishment  Act,  1946,  the  Central  Government  may  also  direct  the  Public  Prosecutor to present an appeal to the High Court from  the order of acquittal.

(3) If 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 sub-section (3) for the grant  of  special  leave  to  appeal  from an  order  of  acquittal  

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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 been  

retained with some modifications.   Section 378, sub-section (1)  

opens with the words,  “save as otherwise provided 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).  

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 contradiction or  

inconsistency would arise in the Act by reason of some subsequent  

clause, from whence it might be inferred the intent of the Parliament  

was otherwise; and this holds with respect to penal, as well as other  

Acts.

3 (1766) Parker 227 1

18. Parke, B. in Becke v. Smith4, stated the following rule:

“It is a very useful rule, in the construction of a statute,  to adhere to the ordinary meaning of the words used,  and to the grammatical construction, unless that is at  variance  with  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.  Lockwood5,  the  rule  regarding  

construction of statutes was expounded in the following words:

“…..The rule of law, I take it, upon the construction of  all statutes, and therefore applicable to the construction  of  this,  is,  whether  they  be  penal  or  remedial,  to  construe  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 evident absurdity….”.

20. In  The  Sussex  Peerage6,  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  no  more  can  be  

necessary than to expound those words in their natural and ordinary  

4 (1836) 2 Meeson and Welsby 191 5 (1842) 9 Meeson and Welsby 378 6 (1844) XI Clark & Finnelly 85  

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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 & Anr.  

v.  Hansoli  Devi  and Others7,  approved the rule exposited by Lord  

Chief Justice Tindal in  The Sussex Peerage’s case6   and stated the  

legal position thus:

“It is a cardinal principle of construction of a statute that  when  the  language  of  the  statute  is  plain  and  unambiguous,  then  the  court  must  give  effect  to  the  words used in the statute and it would not be open to  the courts to adopt a hypothetical  construction on the  ground that such construction is more consistent with  the alleged object and policy of the Act. In  Kirkness v.  John Hudson & Co. Ltd.,  (1955) 2 All  ER 345,   Lord  Reid  pointed  out  as  to  what  is  the  meaning  of  “ambiguous” and held that:   

“A  provision  is  not  ambiguous  merely  because  it  contains  a  word  which  in  different  contexts  is  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 phrase which in that  particular  context  is  capable  of  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 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 words in a statute as  

7 (2002) 7 SCC 273 1

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 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  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 drawn to the omission before the Bill had passed into a  law. At times, 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  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 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….”

23. In  Webster  Comprehensive  Dictionary  (International  

Edition), the word “save” is defined as follows:-

1

“save.-  Except; but - 1. Except; but  2.  Archaic Unless”.  

24. A Dictionary of Modern Legal Usage by Bryan A. 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 has changed the applicable law’.

25. In Williams v. Milotin8,  the High Court of Australia, while  

construing the words “save as otherwise provided in this Act” stated:-  

“….In fact the words “save as otherwise provided in this  Act” are a reflexion of the words “except” – or “save” –  “as hereinafter excepted”.   

26. Section 378 is divided into six  sub-sections.  Sub-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 otherwise provided in  

sub-section (2)” followed by the words “and subject to the provisions  

of sub-sections (3) and (5)”.   Sub-section (2) refers to two class of  

cases,  namely,  (i)  those   cases  where  the  offence  has  been  8 97 C.L.R.465

1

investigated  by the  Delhi  Special  Police  Establishment  constituted  

under  1946 Act  and (ii)  those 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.  Such an appeal by the central government in the aforesaid  

two types  of  cases  is  subject  to  the  provisions  contained  in  sub-

section  (3).    Sub-section  (3)  provides that  an appeal  under  sub-

sections (1) and (2) shall not be entertained without leave of the High  

Court.   Where  the  order  of  acquittal  has  been  passed  in  a  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  (4)  are  concerned,  

where the complainant is a public servant, limitation prescribed is six  

months from the date of an order of acquittal and in all other cases,  

including the cases covered by sub-sections (1) and (2), a period of  

sixty days from the date of the order of acquittal.   Sub-section (6)  

makes a provision that if an application under sub-section (4) for the  

grant of special leave to appeal from an order of acquittal is refused,  

1

no appeal from that order of acquittal shall lie under sub-section (1)  

or  under  sub-section  (2).   We  have  surveyed  Section  378  in  its  

entirety to have complete conspectus of the provision.   

27. The opening words – “save as otherwise provided in sub-

section (2)” –  are in the nature of exception intended to exclude the  

class of cases mentioned in sub-section (2) out of operation of the  

body of sub-section (1).  These words have  no other meaning in the  

context but to qualify the operation of sub-section (1) and take out of  

its purview two types of  cases  referred in sub-section (2),    namely,  

(i)  the cases in  which offence has been investigated by the Delhi  

Special Police Establishment constituted under 1946 Act and (ii) the  

cases  in  which  the  offence  has  been  investigated  by  any  other  

agency empowered to make investigation into an offence under any  

Central Act other than 1973 Code.   By construing Section 378 in a  

manner that  permits appeal from an order of acquittal by the state  

government in every case, except two class of cases mentioned in  

sub-section (2),  full effect would be given to the exception (clause)  

articulated in the opening words.   As noticed above, the words –  

“save as otherwise provided in sub-section (2)” – were added in 1973  

Code;  Section 417 of  1898 Code did not have these words.  It is  

familiar rule of construction that all changes in wording and phrasing  

may be presumed to have been deliberate and with the purpose to  1

limit,  qualify or enlarge the pre-existing law as the changes of the  

words employ.    Any construction that makes exception (clause) with  

which section opens unnecessary and redundant should be avoided.  

If we give to  Section 378, sub-sections (1) and (2), the interpretation  

which the state government  claims; we would have to say that no  

matter that complaint was not lodged by the state government or its  

officers; that investigation was not done by its police establishment;  

that  prosecution was neither commenced nor continued by the state  

government; that  public prosecutor was not appointed by the state  

government;  that the state government had  nothing to do with the  

criminal case; that all  steps from launching of prosecution until its  

logical  end were taken  by the Delhi  Police Special  Establishment  

and yet  the state government may file an appeal from an order of  

acquittal  under  Section  378(1).   That   would  be  rendering  the  

exception  (clause)  reflected  in  the  opening  words  –  “save  as  

otherwise provided in sub-section (2)” – redundant, meaningless and  

unnecessary.   If  the  Legislature  had  intended to  give  the  right  of  

appeal under Section 378(1) to the state government in  all cases of  

acquittal including the class of cases referred to in sub-section (2), it  

would not have been necessary to incorporate the exception (clause)  

in  the  opening  words.   This  objective  could  have  been  achieved  

without use of these words as   erstwhile Section 417 of 1898 Code  

1

enabled the state government to appeal from all cases of acquittal  

while  in  two  types  of  cases  mentioned  in  sub-section  (2)  thereof,  

appeal from the order of acquittal could be filed under the direction of  

central government as well.    

28. In The Bengal Immunity Company Limited v. The State of  

Bihar  and others9 Venkatarama Ayyar, J. observed :

“…..It is a well-settled rule of construction that when a  statute  is  repealed  and  re-enacted  and  words  in  the  repealed statute are reproduced in the new statute, they  should  be  interpreted  in  the  sense  which  had  been  judicially put on them under the repealed Act, because  the Legislature is presumed to be acquainted with the  construction which the Courts have put upon the words,  and when they repeat the same words,  they must be  taken to have accepted the interpretation put on them  by  the  Court  as  correctly  reflecting  the  legislative  mind…...”

29. However,  if  the  latter  statute  does  not  use  the  same  

language as in the earlier one, the alteration must be taken to have  

been made deliberately. In his classic work, Principles of Statutory  

Interpretation  by  G.P.  Singh,  12th Edition,  2010  at  page  310,  the  

following statement of law has been made:

“Just as use of same language in a later statute as was  used in an earlier one in  pari materia  is suggestive of  

9 (1955) 2 SCR 603 2

the  intention  of  the  Legislature  that  the  language  so  used in the later statute is used in the same sense as in  the earlier one, change of language in a later statute in  pari materia is suggestive that change of interpretation  is intended.”

The learned author also refers to the observations of Lord MacMillan  

in  D.R.  Fraser  &  Co.  Ltd.  v.  The  Minister  of  National  Revenue10:  

“When an amending Act alters the language of the principal Statute,  

the alteration must be taken to have been made deliberately”.  

30. It is important to bear in mind that this Court in  Khemraj2 ,  

has put the following construction to Section 417 of 1898  Code:

“10. Section 417  Criminal Procedure Code, prior to the  Amendment Act XXVI of 1955 provided for presentation  of appeals by the Public Prosecutor on the direction of  the  State  Government.  The  1955  Amendment  introduced several changes and provided for appeals at  the instance of the complainant as also on the direction  of the Central Government in cases investigated by the  Delhi  Special  Police  Establishment.  Further  changes  were  introduced  in  the  matter  of  appeals  against  acquittal  under  Section  378  of  the  Code  of  Criminal  Procedure, 1973, with which we are not concerned in  this  appeal  in  view  of  the  repeal  provisions  under  Section 484(1),  CrPC.

11. The Delhi Special Police Establishment (briefly “the  Establishment”),  a  central  police  force,  is  constituted  under the Delhi Special Police Establishment Act, 1946  (Act XXV of 1946) (briefly the Delhi Act). Under Section  2 of the Act, the Central Government may constitute a  special  police  force,  called  the  Delhi  Special  Police  Establishment,  for  investigation  of  certain  offences  or  class of offences as notified under Section 3 of the Delhi  Act. Under Section 4 of the Act the superintendence of  the  Delhi  Special  Police  Establishment  vests  in  the  Central  Government and administration of the Special  Police  Establishment  vests  in  an officer  appointed  by  the  Central  Government  who  exercises  powers  

10  AIR 1949 PC 120 2

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-in- charge 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.

12. 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 sub-section (2) to  the  section  to  provide  for  appeal  against  acquittal  in  cases  investigated  by  the  Establishment  also  on  the  direction  of  the  Central  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.

13. This, however, does not bar the jurisdiction of the  State Government also to direct presentation of appeals  when  it  is  moved  by  the  Establishment.  The  Establishment can 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.

2

14. The word `also’ in sub-section (2) of Section 417 is  very  significant.  This  word  seems  not  to  bar  the  jurisdiction of the State Government to direct the Public  Prosecutor  to  present  an  appeal  even  in  cases  investigated  by  the  Establishment.  Sub-section  (1)  of  Section 417 is in general terms and would take in its  purview all types of cases since the expression used in  that  sub-section is “in any case”. We do not  see any  limitation  on  the  power  of  the  State  Government  to  direct institution of appeal with regard to any particular  type of cases. Sub-section (1) of Section 417 being in  general  terms  is  as  such  of  wider  amplitude.  Sub- section (2) advisedly uses the word `also’ when power  is given to the Central Government in addition to direct  the Public Prosecutor to appeal.”

31. The Parliament in 1973 Code re-enacted the provision  

for  appeal  from  order  of  acquittal  with  certain  

modifications.   It  changed  the  language  by  addition  of  

words – “save as otherwise provided in sub-section (2)”.  

The  alteration  in  language  by  addition  of  these  words  

gives  rise  to  an  inference  that  the  Legislature  made  

conscious changes in Section 378 (1973 Code).   We are  

afraid,  the addition of words in Section 378(1) by way of  

exception  (clause)  cannot  be  set  at  naught  by  giving  

same interpretation which has been given to Section 417  

(1898 Code).    As a matter of fact,  in  Khemraj2,   this  

Court did notice that changes have been introduced in the  

matter of appeals against acquittal under Section 378 of  

the  1973  Code,  but  the  Court  did  not  deal  with  these  2

changes as it was not concerned with that provision.    In  

our opinion, the decision of this Court in Khemraj2 cannot  

be applied as the language used in Section 417 (1898  

Code) and Section 378 (1973 Code) is not in pari materia.  

32. Much emphasis, however, has been placed on the word  

“also” in sub-section (2) of Section 378 by learned senior counsel for  

the state  government.  It  has been urged that  by use of  the  word  

“also”,  competence of the state government in directing the public  

prosecutor to file an appeal from an order of acquittal in the two types  

of cases covered by sub-section (2) is not taken away and rather the  

word  “also”  suggests  that  central  government  may also  direct  the  

public prosecutor to file an appeal from an order of acquittal in the  

class of cases mentioned in sub-section (2).  Does the word “also”  

carry the meaning as contended by the learned senior counsel for the  

state government? One of the rules of construction of statutes is that  

language of the statute should be read as it is and any construction  

that results in rejection of words has to be avoided; the effort should  

be  made  to  give  meaning  to  each  and  every  word  used  by  the  

Legislature.  However,  such  rule  of  construction  of  statutes  is  not  

without  exceptions. In Stone v. Yeovil Corp.11,  Brett J. observed :

11 (1875-76) L.R. 1 CPD 691 2

“The word “such” in the second branch of that clause  would seem at first sight to apply to lands purchased or  taken; but, if  so read, it is insensible. It is a canon of  construction that, if it be possible, effect must be given  to  every  word  of  an  Act  of  Parliament  or  other  document;  but  that,  if  there  be  a  word  or  a  phrase  therein to which no sensible meaning can be given, it  must be eliminated. It seems to me, therefore, that the  word  “such”  must  be eliminated  from this  part  of  the  clause.”

Archibald, J. concurred with Brett J. thus :

“But I agree with my Brother Brett that it is a true canon  of construction, that, where a word is found in a statute  or  in any other instrument or  document which cannot  possibly have a sensible meaning, we not only may, but  must,  eliminate  it  in  order  that  the  intention  may  be  carried out.”

33. In  Salmon  v.  Duncombe  and  Others12,   Privy  Council  

speaking through Lord Hobhouse stated :

“It is, however, a very serious matter to hold that when  the main object of a statute is clear, it shall be reduced  to a nullity by the draftsman’s unskilfulness or ignorance  of law. It  may be necessary for  a Court of  Justice to  come to such a conclusion, but their Lordships hold that  nothing can justify it  except necessity or the absolute  intractability of the language used. And they have set  themselves  to  consider,  first,  whether  any  substantial  doubt can be suggested as to the main object  of  the  legislature; and, secondly, whether the last nine words  of  sect.  1  are  so cogent  and so limit  the  rest  of  the  statute as to nullify its effect either entirely or in a very  important particular.”

34. The  main  object  and  legislative  intent  by  the  opening  

words – “save as otherwise provided in sub-section (2)”  – in sub- 12 (1886) 11 AC 627

2

section (1) of Section 378 being clear i.e., to fetter the general power  

given  to  the  state  government  in  filing  appeal  from  the  order  of  

acquittal in two types of cases stated in sub-section (2),  the use of  

word “also” in sub-section (2) does not make any sense.  The word  

“also” in sub-section (2), if construed in the manner suggested by the  

state government, may result in reducing the opening words in sub-

section (1) a nullity  and will deny these words their full play.   Since  

exception  (clause)  in  the  beginning  of  sub-section  (1)  has  been  

expressly added in Section 378 and it is not possible to harmonise  

the word “also” occurring in sub-section (2) with that, it appears to us  

that no sensible meaning can be given to the word “also” and the said  

word has to be treated as immaterial. We are not oblivious of the fact  

that  to  declare  “also”  enacted  in  sub-section  (2)   immaterial  or  

insensible  is not very satisfactory, but it is much more unsatisfactory  

to deprive the  words  – “save as otherwise provided in sub-section  

(2)” – of their true and plain meaning.  In order that the exception  

(clause)  expressly  stated  in  the  opening  words  of  sub-section  (1)  

might be preserved, it is necessary that word “also” in sub-section (2)  

is treated as immaterial and we hold accordingly.   

35. The phrase “in  any case”  in  sub-section (1)  of  Section  

378, without hesitation, means “in all cases”, but the opening words  

2

in the said Section put fetters on the state government in directing  

appeal to be filed in two types of cases mentioned in sub-section (2).  

36. Section  2(u)  of  1973  Code  defines  “public  prosecutor”  

which means any person appointed under Section 24 and includes  

any  person  acting  under  the  directions  of  a  public  prosecutor.  

Section 24 reads as follows:

“S.24. - Public Prosecutors.-(1) For every High Court,  the Central Government or the State Government shall,  after consultation with the High Court, appoint a Public  Prosecutor  and  may  also  appoint  one  or  more  Additional  Public  Prosecutors,  for  conducting  in  such  Court,  any prosecution,  appeal  or other proceeding on  behalf  of the  Central Government or State Government,  as the case may be.

(2) The Central Government may appoint one or more  Public  Prosecutors  for  the  purpose  of  conducting  any  case or class of cases in any district, or local area.

(3) For every district, the State Government shall appoint  a Public Prosecutor and  may also appoint one or more  Additional Public Prosecutors for the district:

     Provided that the Public Prosecutor or Additional  Public  Prosecutor  appointed  for  one  district  may  be  appointed  also  to  be  a  Public  Prosecutor  or  an  Additional  Public  Prosecutor,  as the case  may be,  for  another district.

(4) The District Magistrate shall, in consultation with the  Sessions Judge, prepare a  panel of names of persons,  who are,  in  his  opinion,  fit  to be appointed as Public  Prosecutors  or  Additional  Public  Prosecutors  for  the  district.

(5)  No  person  shall  be  appointed  by  the  State  Government  as  the  Public  Prosecutor  or  Additional  Public  Prosecutor  for  the  district  unless his  name  

2

appears in the panel of  names prepared by the  District  Magistrate under sub-section (4).

(6)  Notwithstanding  anything contained  in  sub-section  (5),  where in  a State there  exists  a  regular  Cadre of  Prosecuting  Officers,  the  State  Government  shall  appoint  a  Public  Prosecutor  or  an  Additional  Public  Prosecutor  only  from  among  the  persons  constituting  such Cadre:

     Provided that where, in the opinion of  the State  Government,  no  suitable  person  is  available  in  such  Cadre  for  such  appointment  that  Government,  may  appoint  a  person  as  Public  Prosecutor  or  Additional  Public Prosecutor, as the case may be, from the panel of  names  prepared  by  the  District  Magistrate  under  sub- section (4).

Explanation.--For the purpose of this sub-section,--  

(a) "regular Cadre of Prosecuting Officers" means a Cadre  of Prosecuting Officers which includes therein the post of a  Public Prosecutor,  by whatever name called,  and which  provides for promotion of Assistant Public Prosecutors, by  whatever name called, to that post;  

(b)  "Prosecuting  Officer"  means  a  person,  by  whatever  name called, appointed to perform the functions of a Public  Prosecutor, an Additional Public Prosecutor or an Assistant  Public Prosecutor under this Code.]

(7) A person shall be eligible to be appointed as a Public  Prosecutor or an Additional Public Prosecutor under sub- section (I) or sub-section (2) or sub-section (3) or sub-- section (6), only if he has been in practice as an advocate  for not less than seven years.

(8) The Central Government or the State Government may  appoint, for the purposes of any case or class of cases, a  person who has been in practice as an advocate for not  less than ten years as a Special Public Prosecutor.

       Provided that the Court may permit the victim to  engage an advocate of his choice to assist the prosecution  under this sub-section.   

2

(9) For the purposes of sub-section (7) and sub-section  (8), the period during which a person has been in practice  as a pleader, or has rendered (whether before or after the  commencement  of  this  Code)  service  as  a  Public  Prosecutor  or  as  an  Additional  Public  Prosecutor  or  Assistant Public Prosecutor or other Prosecuting Officer,  by  whatever  name  called,  shall  be  deemed  to  be  the  period during which such person has been in practice as  an advocate.”

37. A  perusal  of  Section  24  would  show  that  the  central  

government  appoints  its  public  prosecutors  for  conducting  

prosecution, appeal or other proceedings on its behalf and a state  

government  appoints  its  public  prosecutors  in  conducting  

prosecution, appeal or other proceedings on its behalf.   One has no  

control  over  the  other.   The  central  government  or  the  state  

government,  as  the  case  may  be,   may  appoint  a  special  public  

prosecutor for the purpose of any case or class of cases.   Under  

Section 378(1) the state government may direct its public prosecutor  

to file an appeal from an order of acquittal while under Section 378(2)  

the  central  government  may direct  its  public  prosecutor  to  file  an  

appeal from an order of acquittal.  The public prosecutor, thus, has to  

be associated in an appeal from an order of acquittal.   The 1946 Act  

provides  for  constitution  of  a  special  police  establishment  for  

investigation of certain offences or class of offences as notified under  

Section 3 of the 1946 Act.  A close look to the provisions of 1946 Act  

2

would  show that  investigation  thereunder  is  a central  investigation  

and  the  officers  concerned  are  under  the  superintendence  of  the  

officer  appointed  by  the  central  government.   It  is  the  central  

government that has the superintendence over Delhi Special Police  

Establishment.   What is, therefore, important to notice is that  it is the  

central government which is concerned with the investigation of the  

case by Delhi Special Police Establishment and its ultimate result.  It  

is  for  this  reason that  sub-section (2)  of  Section 378 provides for  

appeal against acquittal in two types of cases mentioned therein on  

the direction of the central government by its public prosecutor.  The  

opening words in sub-section (1),   thus,  qualify the general  power  

given  to  the  state  government  in  filing   appeal  from  an  order  of  

acquittal  so that  the central  agency,  which is solely and intimately  

connected with the investigation of cases referred in sub-section (2),  

may  approach  the  central  government  for  direction  to  appeal  in  

appropriate cases.  

38. The  decision  of  this  Court  in  Eknath  Shankarrao  

Mukkawar1,  has  been  referred  to  and  relied  upon  by   Mr.  Ram  

Jethmalani as well as Mr. L. Nageshwar Rao.  We may appropriately  

consider the said decision now.   In Eknath Shankarrao Mukkawar1,  

the  construction  of  Section  377  (appeal  against  inadequacy  of  

sentence) fell for consideration.    Section 377 (1) and (2) of 1973  3

Code with  which this  Court  was concerned in  Eknath  Shankarrao  

Mukkawar1, reads as follows:-  

  “S.- 377.-  Appeal by the State Government against  sentence.-   (1)  Save  as  otherwise  provided  in  sub- section (2), the State Government may, in any case of  conviction on a trial held by any court other than a High  Court, direct the Public Prosecutor to present an appeal  to the High Court against the sentence on the ground of  its inadequacy.

(2) If such conviction is in a case in which the offence  has  been  investigated  by  the  Delhi  Special  Police  Establishment,  constituted  under  the  Delhi  Special  Police Establishment Act, 1946 (25 of 1946),   or by any  other agency empowered to make investigation into an  offence under any Central Act other than this Code, the  Central Government may  direct the Public Prosecutor  to  present  an  appeal  to  the  High  Court  against  the  sentence on the ground of its inadequacy.”

This Court with reference to the aforesaid provision held:

“10.  It is true that Section 378(2) follows the pattern of  Section 417(2) of the old Code and the right to appeal is  conferred  upon  both  the  State  Government  and  the  Central Government in express terms in Section 378(2).  It  is clear that the legislature has maintained a water- tight dichotomy while dealing with the matter of appeal  against inadequacy of sentence. We agree that in the  absence of a similar word “also” in Section 377(2) it is  not  possible for  the court to supply a casus omissus.  The two sections, Section 377 and Section 378 CrPC  being situated in such close proximity, it is not possible  to  hold  that  omission  of  the  word  “also”  in  Section  377(2) is due to oversight or per incuriam.

11.  Section 377 CrPC introduces a new right of appeal  which  was  not  earlier  available  under  the  old  Code.  Under sub-section (1) of  Section 377 CrPC the State  Government has a right to appeal against inadequacy of  sentence  in  all  cases  other  than those  referred  to  in  

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sub-section (2) of that section. This is made clear under  Section 377(1) by its opening clause “save as otherwise  provided in sub-section (2)”. Sub-section (2) of Section  377, on the other hand, confers a right of appeal on the  Central Government against a sentence on the ground  of its inadequacy in two types of cases:

(1)  Those  cases  where  investigation  is  conducted  by  the  Delhi  Special  Police  Establishment  constituted  under the Delhi Special Police Establishment Act, 1946.

(2)  Those other  cases which  are investigated by any  other agency empowered to make investigation under  any  Central  Act  not  being  the  Code  of  Criminal  Procedure.

12. There is no difficulty about the first type of cases  which  are  investigated  by  the  Delhi  Special  Police  Establishment where, certainly, the Central Government  is the competent authority to appeal against inadequacy  of sentence.”

39.       The  essence  in  a  decision  is  its  ratio  and  not  every  

observation found therein, as stated by this Court in State of Orissa v.  

Sudhansu  Sekhar   Misra  and  others13.   The  ratio  of  decision  in  

Eknath  Shankarrao  Mukkawar1   is  that  the  Legislature  has  

maintained a watertight dichotomy  in the matter of appeal against  

inadequacy of sentence;  the competent authority to appeal against  

inadequacy of  sentence in  two types  of  cases referred  to  in  sub-

section (2) of Section 377 is the central government.  However, Mr. L.  

Nageshwar Rao submitted that in Eknath Shankarrao Mukkawar1, in  

the absence of use of word “also” in sub-section (2) of Section 377, it  

13 AIR 1968 SC 647  3

was held by this Court that the state government was incompetent to  

file an appeal in a case falling under Section 377(2).  But now the  

lacuna  pointed  out  by  this  Court  has  been  remedied;  Parliament  

amended by Act 45 of 1978 to include the word “also” therein and  

bring the same in pari materia with the provisions of Section 378(2)  

and the Statement of Objects and Reasons for the said amendment  

makes it clear that the state government is also competent to file an  

appeal in a case falling under Section 377(2).  We are not persuaded  

by  the  submission  of  Mr.  L.  Nageshwar  Rao  for  more  than  one  

reason.   In the first place,  the observations  in Eknath Shankarrao  

Mukkawar1,   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,  and  more  

importantly,  although   sub-section (2)  of  Section 377 came to be  

amended by Act 45 of 1978 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 “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  

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mentioned in  sub-section (2)  out  of  operation of  the  body of  sub-

section (1).    

40.  In our opinion, the Legislature has maintained a mutually  

exclusive division in the matter of appeal from an order of acquittal  

inasmuch  as  the  competent  authority  to  appeal  from  an  order  of  

acquittal  in two types of cases referred to in sub-section (2) is the  

central  government  and  the  authority  of  the  state  government  in  

relation to such cases has been excluded.  As a necessary corollary,  

it has to be held, and we hold, that the State Government (of Bihar) is  

not competent to direct its public prosecutor to present appeal from  

the  judgment  dated  December  18,  2006  passed  by  the  Special  

Judge, CBI (AHD), Patna.   

41. In  view  of  what  we  have  discussed  above,  it  is  not  

necessary to consider the contention of Mr. Ram Jethmalani founded  

on the proviso to Article 162 of the Constitution that in case of conflict  

of  exercise of  executive  powers by the state  government  and the  

central government, the decision of the latter shall prevail.

42. For the aforesaid conclusions, the reasons given by  the  

High Court   are not   correct   and the impugned order  cannot  be  

sustained.  

43. The result is, both appeals are allowed, the order dated  

September 20, 2007 passed by the High Court is set aside and  the  3

Govt.  Appeal  No.  1  of  2007 –  State  of  Bihar  v.  Lalu  Prasad and  

others – presented before the High Court of Judicature at Patna is  

rejected as not maintainable.

………………………………CJI

……………………………….J.                             [R.M. LODHA]   

………………………………J.       [DR. B.S. CHAUHAN]

NEW DELHI, APRIL 1, 2010.

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