Decided on November 20,1963

STATE Appellant


V.B. Raju, J. - (1.) This is an appeal by the State of Gujarat against the acquittals of the three respondents by the City Magistrate, 5th Court, Ahmedabad, in Criminal Case No. 2020 of 1962. The State has now come in appeal and prays that the acquittals of these three persons should be set asidu.
(2.) The appeal is filed under Section 417. Criminal Pro. Code, which 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 a High Court. Section 419, Cri. P. C. provides that every appeal shall be made in the form of a petition. As there were three accused persons at the trial and all of them are acquitted, the question is whether there are three orders of acquittal or whether there is one order of acquittal. If two persons P and Q are jointly tried at one trial, one may be convicted and the other acquitted in which case there is one order of conviction and one order of acquittal in the same judgment against either of which an appeal can be filed. If both are convicted there are two orders of conviction. If both are acquitted there are two orders of acquittal. If both are acquitted at the trial, it is open to the State to file an appeal against the acquittal of both the persons or against the acquittal of one of the two persons only. Usually a Judge acquitting an accused person considers the case against that person and acquits him. When there are two accused persons the trying Judge considers the case against one of the two accused persons finds him not guilty and acquits him and repeats this process for the other accused, if he finds that the case against both of them is not proved beyond reasonable doubt. Section 258, Cr. P. C. also shows that in a judgment pronounced at the end of a trial there are at least as many orders of conviction or orders of acquittal as there are accused persons. Even if one person is tried there may be an order of conviction and an order of acquittal in respect of the same accused person if he is convicted of ,the charge tinder one section but acquitted of the charge under another section. Properly speaking, therefore, when a Judge or Magistrate acquits two persons at a trial he passes two orders of acquittal. If his order is regarded as one order of acquittal, then the State wil have to file an appeal against the acquittal of both the accused persons but it is always open to the State not to appeal against the acquittal of one of the accused persons but to filet an appeal against the acquittal of another accused person. Similarly, Section 423 (I) (a), Cr. P. C. provides that in an appeal from an order of acquittal, the Court may reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law. If this appeal is regar ded as only one appeal against one order of acquittal, then a difficulty will arise under Section 42. (1) (a), Cri. P. C., because the order as a whole will have to be reversed, and it will not be open to set aside the acquittal of one of the accused persons without touching the acquittal of another person. The order passed by the Magistrate must be regarded as two orders of acquittal, one order acquitting P and the other order acquitting Q. It is open to the State to file an appeal against the acquittal of P or against the acquittal of Q. It is also open to the State to file two appeals against the acquittal of P and Q. The present appeal has therefore to be treated as three appeals against three orders of acquittal. In this view and in view of Section 410 Cr. P. C. there should be three separate appeals.
(3.) The instant appeal is against the acquittal of three respondents. If one of them say P dies, the Court will have to pass an order that the appeal abates as against P and will be heard regarding the other two respondents. Such an order would be invalid as it is an order of partial abatement of an appeal. By holding that a single appeal can be filed against the acquittals of several persons the Court may have to pass an invalid order if one of the acquitted persons dies pending appeal.;

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