Holding

Appeals under Section 377(2) are maintainable only by the Central Government through its Public Prosecutor; the complainant lacks locus standi, so the appeals are dismissed.

Summary

The Assistant Collector of Central Excise, acting as complainant, appealed to the High Court against the sentences imposed on V. Krishnamurthy and others for offences investigated by a Customs Officer, invoking Section 377(2) of the Code of Criminal Procedure. The Supreme Court examined whether a Customs Department officer qualifies as an "agency empowered to make investigation" under the provision and whether the complainant has locus standi to file such an appeal. It held that only the Central Government, through its Public Prosecutor, may present an appeal against a sentence on the ground of inadequacy, and the complainant cannot do so. Consequently, the appeals were dismissed as not maintainable. The Court declined to decide the agency question as it became moot.

Issues considered

Whether an officer of the Customs Department is an "agency empowered to make investigation" within the meaning of Section 377(2) of the Code of Criminal Procedure.
Whether a complainant (Assistant Collector of Central Excise) has locus standi to file an appeal against a sentence on the ground of inadequacy under Section 377(2) of the Code of Criminal Procedure.

Legislation cited

Code of Criminal Procedure, 1973s. 377(2), s. 378(4)
Customs Act
Delhi Special Police Establishment Act, 1946

Subjects

appeal against sentenceinadequacy of sentenceSection 377(2) CrPCpublic prosecutorlocus standicustoms investigationcentral excisecriminal procedure

Judgment

A ASSIST ANT COLLECTOR OF CENTRAL EXCISE, MADRAS
v.
V. KRISHNAMOORTHY AND ORS.

FEBRUARY 20, 1997

B (M.M. PUNCHHI AND K.T. THOMAS, JJ.)

Code of Criminal Procedure, 1973 :

S. 377(2)-Appeal against order of sentence on ground of its inade'
C quacy--Offence under Customs Act-Conviction by trial cowt-Appeals
prefemd by Assistant Collector of Central Excise engaging Central Govern-
ment Public Prosecutor as Advocate-Held, it is the Public Prosecutor who
under directions of Central Government is obliged to present an appeal to
-
High Court against the sentence on the ground of its inadequacy-Such power
does not vest with complainant-Appeals have been preferred by complainant
D though counsel engaged by him is Central Government Public Prosecutor---A
fiduciary relation of client and counsel appears to have been established-No
such situation is pennissible u/s. 377(2)-Appeals are not maintainable.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E Nos. 551 and 553 of 1990.
From the Judgment and Order dated 30.4.83 of the Madras High
Court in Crl.A. Nos. 688/76 and 41of1977.

W.S.A. Quadri for P. Parmeswaran for the Appellant.
F V. Krishnamurthy and T. Harish Kumar for the Respondents.
(

The following Order of the Court was delivered : \

Sub-Section (2) of Section 377 of the Code of Criminal Procedure
G provides the manner in which an appeal against 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 a case in which the offence has
been investigated by the Delhi Special Police Establishment coil-
H stituted under the Delhi Special Police Establishment Act, 1946
306
ASSTI. COLLECTOR OF C.E., MADRAS v. V. KRISHNAMOORTHY 307

j (25 of 1946), or by any other agency empowered to make inves- A
tigation into an offence under any Central Act other than this
Code, (the 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".
i

B
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 accused 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. C
Madras engaging the Central Government Public Prosecutor as the Advo-
cate to pursue those appeals. Sub-section (2) afore re-produced provides
that if an offence has been investigated by the Delhi Special Police Estab-
lishment 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 D
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 E
whether the officer of the Customs Department would be an agency,

_
... '
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 and whether the appeal preferred by such an officer
on the ground of inadequacy of sentence awarded was maintainable. The F
High Court by a long discussion set out in the judgment under appeal has
\ held that the proceedings undertaken by the Customs Officer cannot come
-- I within the scope of "Investigation" 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 G
·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 appellant-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. H
308 SUPREME COURT REPORTS [1997] 2 s!.C.R.
I

A The debate as to whether the Assistant Collector of Central Excise
1s 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.
B 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 rtot vest with the complainant. Here the appeals have been
preferred by the complainant though the counsel engaged by the com-
plainant happens to be the Central Government Public Prosecutor. plainly
C a fiduciary relationship of client and counsel appears to have been estab-
lished. No such situation is permissible under Section 377(2) of the' Code
of Criminal Procedure. The reason is obvious because the law presumes
that it is the Central Government, who through its Pub\ic Prosdecutor can
voice grievance before the High Court in relation to the inadequacy of
D sentence. The complainant has full say only in an appeal against acquittal
under Section 378(4) of the Code of Criminal Procedure but has not 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
E 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.

•
1
The appeals are accordingly dismissed.

F R.P. Appeals dismissed.

\