DEVISAHAI PREMRAJ Vs. GOVINDRAO BALWANTRAO

JUDGEMENT

(1.) THIS, is an application under Section 417 (3) Cr. P. C. , for leave to appeal against a decision of the Additional District Magistrate, Indore, acquitting the non-applicants of charges under Sections 420, 467 and 471 I. P. O.

(2.) IT is not necessary to refer to the facts of the case, for this petition, must be dismissed on the ground that in this case the applicant has no right of appeal at all and his application under Section 417 (3), for leave to appeal is not competent.

(3.) THE applicant made his complaint against the non-applicants in respect of offences mentioned above in 1951. The decision of the Additional District magistrate acquitting the non-applicants was pronounced on 19th December, 1955. The complaint was thus lodged and the case was decided before the commencement of the Code of Criminal Procedure (Amendment) Act, 1955. Now, under the Criminal Procedure Code as it stood before it was amended in 1955, the state alone had the right of appeal against a decision of acquittal. The complainant had no right of appeal although he could move the High Court in its revisional jurisdiction for interfering with the order of acquittal. A right of appeal against an acquittal subject to the leave of the High Court was conferred on a private complainant for the first time by the Code of Criminal Procedure (Amendment) Act, 1955, which inserted a new sub-section, namely Sub-section (3), in Section 417 Cr. P. C. The petitioner thus had no right of appeal in this case on the date of the filing of the complaint. If he had no such right on the date on which he filed his complaint, then he could not claim the right under the new Sub-section (3) of Section 417 Cr. P. C. , unless the Code of Criminal Procedure (Amendment) Act, 1955, expressly or by its necessary intendment confers on private complainants the right of appeal in complaints instituted before the amending Act came into force. This is clear from the decision of the Supreme Court in G. Veeraya v. N. Subbiah choudhry, (S) AIR 1957 SC 540 (A), which now firmly establishes the proposition that the right of appeal is not a mere matter of procedure but is a substantive right; that it accrues to the litigant and exists as on and from the date the lis commences; and that where a right of appeal is vested, it can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. The express provision in the amending Act is, however, to the contrary and that is Section 116 of the Code Criminal Procedure (Amendment) Act, 1955, which is a saying provision. After saying that certain provisions of the principal Act, as amended, shall not apply to the relevant pending proceedings, section US proceeds to say-