LexSTATE (DELHI ADMINISTRATION) versus DHARAMPAL
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STATE (DELHI ADMINISTRATION)
v.
DHARAMPAL
OCBTOBER, 19, 2001
[K.T. THOMAS AND S.N. VARIAVA, JJ.J
Criminal Trial :
Omission to bring to the notice of the accused an inculpatory material-
E:ffect of-Does not ipso-facto vitiate the proceeding-Accused must show that
failure of justice was occasioned by such omission-{{ an inculpatory material
not put to the accused, the Appellate Court can always make good that lapse
by calling upon explanation on the circumstances established against him.
Code of Criminal Procedure, 1973 :
Section 378-Applicability of-Period of limitation to appeal by State
Government-Continues to be governed by Section 114(a) of LimitationAct-
Sub-section (5) of Section 378 Cr.P.C. has no application to an appeal by the
State Government-Limitation Act, 1963.
Food Inspector purchased a sample of 'lal mirch kutti' from the
respondent. The sample was found to be non confirming to the_ prescribed
standards. A complaint was filed under Section 20 of the Prevention of
Food Adulteration Act. The respondent got the sample analysed from
Central Food Laboratory (CFL) under Section 13(2) of the Act. As per
report submitted by CFL, the sample was found to contain adulterating
material, starches and colouring material. Metropolitan Magistrate, after
trial, convicted and sentenced him to rigorous imprisonment and fine. On
appeal, the Sessions Judge acquitted him on the ground that while record-
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ing statement of the accused/respondent under section 313 Cr.P.C., the
contents of the certificate of the Director, CFL was not read out. On this
ground many other accused had also been acquitted. Against the judg-
ments, appellants filed appeals which were dismissed by the High Court on
the ground that non-putting of the contents of the certificate to the accused
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was a vital omission; conviction could not, therefore, be maintained and
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STATE v. DHARAM PAL
449
that all the appeal were barred by limitation as not flied within a period of
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60 days as proved under sub-section (5) of Section 378 Cr.P.C.
Allowing the appeals, the Court
HELD : 1. An omission to bring the attention of the accused to an
inculpatory material does not ipso facto vitiate the proceedings, the ac-
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cosed must show that failure of justice was occasioned by such omission.
Further, the Appellate Court can always make good that lapse by calling
upon the counsel for the accused to show what explanation the accused has
as regards the circumstances established against the accused but not put to
him. Both the Sessions Judge and the High Court have overlooked this
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position of law and failed to perform their duties and thereby wrongly
acquitted the accused. In such cases it is enough if the attention of the
accused is brought to the report/certificate. It is not necessary that con-
tents of the report be also put to the accused. [ 453-E-G]
Shivaji Sahabrao Bobade v. State of Maharashtra, [1973] 2 SCC 793
and Basavaraj R. Paul v. State of Karnataka, [2000] 8 SCC 740, relied on.
2.1. Section 378 makes a distinction between an appeal flied by the
State Government or the Central Government, who only need to obtain
leave and an appeal by a complainant who needs to obtain special leave.
The limitation provided in sub-section (5) is only in respect of application
filed under sub-section (4) i.e. application for special leave to appeal by the
complainant. This period of limitation does not apply to appeal$ by the
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State Government under sub-section (1) or the Central Government under
sub-section (2). Appeals by the State Government or the Central Govern-
ment continue to be governed by A1-ticle 114(a) of the Limitation Act.
These appeals must be filed within 90 days from the date of the order
appealed from. If there is a delay in filing an appeal by State Government/
Central Government, it would be open for them to file an application for
condonation of delay under Section 5 of the Limitation Act. The reference
to sub-section (5) of sub-section (1) of Section 378 is clearly an inadvertent
mistake &nd sub-section (5) applies only to application for special leave by
a complainant and has no application to an appeal by the State Govern-
ment or to an application for leave under sub-section (3). What the legisla-
ture clearly intended was to continue to provide that an appeal by the
State Government would not be maintainable if special leave to appeal had
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