- (1.) The following two questions have been referred to the Full Bench: (1) Can the High Court in an appeal by a convict & without an appeal by the State Govt. on the findings of fact at which it arrives in appeal, alter the findings of Section 423(1)(b)(2), Code of Criminal Procedure to any other finding it (sic) proper (2) If the answer to (1) above be in the affirmative can the High Court after altering the finding Under Section 423(1)(b)(2) enhance the sentence under Section 439, Code of Criminal Procedure to any sentence it considers suitable in spite of the fact that Section 423(1)(b)(3) enjoins that in case of alteration of finding the sentence cannot be enhanced by an appeal late Court in an appeal by the convict
(2.) Section 423, Code of Criminal Procedure, deal with powers of an Appellate Court in disposing of an appeal. It says: (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, & hearing the Appellant or his pleader, if he appears & hearing the Appellant or his pleader, if he appears & the Public Prosecutor, if he appears, & in case of an appeal under Section 411-A Sub-section (2) or Section 417, the accused, if the appears, the Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order & direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty & pass sentence on him according to law: (b) in an appeal from a convict, (1) reverse the finding a sentence & acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence or (3) with or without such reduction & with sentence, but subject to the precisions of Section 106, Sub-section (3) not so as to enhance the same: (c) in an appeal from any other order, alter or reverse such order; (d) make any amendment or any consequential or incidental order that may be just or proper. Sub-section (2) lays down that nothing contained in this section shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him. With this we are not concerned in the present ease.
(3.) As the words of Clause (a) of Sub-section (1) show it deals with an appeal against the order of acquittal & empowers the appellate Court, if it does not dismiss the appeal, to reverse the order of acquittal & inter alia to find the accused guilty & pass sentence on him according to law. Clause (b) relates to an appeal from a conviction & says that the appellate Court can either reverse the finding & sentence, & acquit or discharge the accused, or do one of the other things mentioned therein. One of such things is to alter the finding & the other is to reduce the sentence with or without altering the finding.;