- (1.) THE following question was referred to the Full Bench: "does the decision by a Judge of the High Court after full hearing and with notice to both parties, of an appeal against conviction on a minor charge, bar the hearing by the High Court of a pending appeal by the State against the acquittal of the convict on a graver charge comprehending the aforesaid minor charge? The facts which led to the reference are that Mansha singh was tried on charges under Sections 302, 323, 307 and 451 of the Indian Penal Code by the Additional Sessions Judge, Kamal and was sentenced to seven years rigorous imprisonment under Section 304 part II, Indian Penal Code and also to various terms of imprisonment under sections 3,23, 324 and 451 of the Indian Penal Code; the sentences were ordered to run concurrently. He filed an appeal against his convictions and sentences to the High Court. This appeal came up for final hearing before Kapur J. The learned Judge by his order dated 31st of August, 1956, dismissed the appeal maintaining the convictions and sentences passed against the accused. Before the decision of the appeal against the conviction of the accused the State had also filed an appeal against his acquittal under section 302, Indian Penal Code. The Division Bench before whom the appeal against acquittal came for admission passed the following order: "to come up with Criminal Appeal No. 551 of 1955. " criminal Appeal No. 551 of 1955 was an appeal by the accused against his conviction. When this appeal came up for hearing before Kapur J. , learned counsel appearing for the State prayed that the hearing of the appeal against conviction be postponed in view of the fact that the State had also preferred an appeal against his acquittal. The learned Judge, it appears, proceeded to hear the appeal against conviction and disposed it of by his judgment dated the 31st of August, 1956. He maintained the convictions and sentences recorded by the trial Court against the accused. On the 3rd of January, 1957, a Division Bench of this Court consisting of Kapur and Passey JJ. admitted the State appeal for hearing by a Division Bench. This appeal against acquittal came up for hearing before me and my learned brother Capoor J. when Mr. Harbans Singh Gujral, learned counsel for the respondent' (accused), raised a preliminary objection against the maintainability of the appeal by the State against acquittal. After hearing the counsel for the parties we decided to refer the matter to a Full Bench on account of its importance and also in view of some conflict in the judicial decisions by other High Courts.
(2.) NOW before us counsel for the accused-respondent contends that the judgment of the High court passed by single Judge on an appeal by the respondent against his conviction is final and cannot be interfered with by way of alteration, reversal or review in view of Section 369 and section 430 of the Code of Criminal Procedure. In this view of the matter he urges that the State appeal has become incompetent and incapable of hearing, There appears to be a considerable forces in this contention. It is admitted by the learned counsel for the State that the appeal against conviction preferred by the respondent was decided after full hearing in the presence of both the parties and after due notice to them. In such a situation I am firmly of the opinion that the judgment of the trial Court has merged in the judgment of the High Court and has indeed been replaced by it. Section 417 of the Criminal Procedure Code which enables the State to tile an appeal against acquittal provides such an appeal to the High Court from an original or an appellate order of acquittal passed by any Court other than a High Court. The contention of the learned counsel for the State that the judgment passed in appeal by this court was not final because it was an exception provided for in Section 417 of the Code cannot prevail, as Section 417 itself provides an appeal only against orders of acquittal passed by any court other than the High Court. It is significant to note that Criminal Procedure Code does not provide a second appeal in criminal cases. Section 430 of the Code, however, provides two exceptions to this rule of finality of judgment. These Exceptions are: (a) in cases falling under Section 417 there shall be a second appeal and the judgment of the lower appellate Court shall not) be final, and (b) in cases covered by Chapter xxxii of the Code, i. e. in revisional proceedings the judgment of the lower appellate Court shall be subject to decision of the revisional Court. We are here concerned with the Exception mentioned in (a ). It means that wherever an appeal against the judgment of the lower appellate court is filed under Section 417 the finality of the judgment of that Court would be superseded by the judgment of the High Court. This, however, does not mean that even the judgment of the High Court would lose its finality if an appeal against the order of the lower appellate Court has been filed. Section 430 undoubtedly applies to the judgments of the High Court also but the proviso only applies to the lower appellate Court against whose judgment alone an appeal against acquittal can be filed. In the present case the order of acquittal must be held to have been passed by the High Court as the appeal against conviction was heard after due notice to the State and after full hearing in the presence of the par-ties. The conviction and sentence were then maintained by the learned Single Judge. Undoubtedly both parties had a right of appeal-- the State against acquittal of the accused on a graver charge and the respondent against his conviction on a minor charge. If both prefer appeals ordinarily they should be heard together, but if the appeal of the accused is heard and decided by the High court, there is a pronouncement by that Court which is final under Section 430, Criminal procedure Code, as a decision of the High Court replaces the judgment of the lower Court. In such a situation the State appeal cannot be entertained. No doubt in the present case a request was made by the counsel for the State for postponing the hearing of the appeal against conviction on account of the State appeal having been filed. Learned Single Judge did not accede to this request presumably on the ground that he did not find much force in the State appeal against acquittal. By that time the appeal against acquittal was not even admitted to a final hearing by the Division Bench. In this connection it is pertinent to note the observations made by Kapur J. in his judgment dated 31st of August, 1956, in appeal by the respondent against his conviction. The learned Judge says: "i am satisfied that accused had been rightly convicted. Counsel for the State submits that the offence committed by the accused was murder and not merely culpable homicide not amounting to murder. On this point also it cannot be said that the offence caused falls under any of the clauses of Section 300 of the Indian Penal Code. I would, therefore, dismiss the appeal of the accused. " "the appeal filed by the State was never admitted. The order of the division Bench was "to come up with Criminal Appeal No. 551 of 1955. ' As no notice was sent to the other side I do not think any finding need be given by me or can be given by a Single Judge. In any case I do not agree with the submissions of Mr. Khosla and I would, therefore order that no action need be taken on that appeal. " This is how the learned Judge felt about the submissions made by the learned counsel for the state. Presumably the order of the Division Bench was interpreted as amounting to dismissal of the State appeal against acquittal. The learned counsel for the State submitted that it was proper that both appeals had been heard together. Perhaps it was better if it was so done. We are, however not concerned here with the propriety of the order. We are now only call-ed upon, to determine its effects on the State appeal against acquittal. The State has undoubtedly lost its statutory right of audience to this Court. But this right is denied to the State by provisos of Section 430 of the Code of Criminal procedure. As already mentioned the judgment of the High Court becomes final after decision of an appeal against conviction. When the meanings of the statute are plain, they must receive their full effect. Hence it is inadmissible, as is argued by the learned counsel for the State, to consider the resulting injustice following refusal to entertain the State appeal against acquittal. If such result leads to inconvenience the remedy lies with the Legislature. The duty of the Court is to expound the law as it stands. The manifest intention of the legislature clearly appears to give finality to the judgments of criminal Courts. This principle, in my opinion, by now stands firmly established and must, therefore, be accepted. The contention of the learned counsel for the State must be repelled.
(3.) LEARNED counsel for the State then contended that the trial Court decided two matters by one judgment i. e. (a) acquittal under Section 302, Indian Penal Code, and (b) conviction under section 304, Indian Penal Code, and that the appeal by the respondent only related to his conviction and as such had nothing to do with the order of acquittal passed by the trial Court. From this he argued that the High Court in appeal against conviction only decided the appeal preferred by the convict. The appeal by the State still remained unheard and undecided. He further argued that it was beyond the competency of the learned Single Judge to hear and decide the appeal against acquittal. This contention looks attractive at the first sight but appears to be without any substance when probed deeper. It cannot be denied that before the trial Court the only matter for determination was the finding of the nature of the offence, if any, from the proved facts. From these facts the trial Court found the convict guilty of culpable homicide not amounting to murder. In deciding the appeal against conviction the learned Single Judge undoubtedly considered the propriety and legality of his conviction as well as the propriety of the sentence passed by the trial court. Presumably the learned Judge first considered if on the proved facts the convict was guilty and if so what offence was committed by him. After determining the nature of the offence the learned Judge then considered the propriety of the sentence. In other words he reviewed the entire case against the accused before pronouncing his decision. It cannot be denied that these exactly are the matters which will require determination in the event of entertaining the State appeal against acquittal. On the other hand the competency of the learned Single Judge to hear the appeal against conviction cannot be denied. Therefore in an appeal against acquittal any finding to the contrary would naturally amount to variance of the judgment already passed by the High Court in appeal against conviction. It means the recording of two convictions on the same set of facts. Even the learned counsel for the State had to admit that the Division Bench hearing, the appeal against acquittal was not competent to set aside the conviction already maintained by the Single judge. So if the contention of the learned counsel for the State is accepted it will create an anomaly leading to startling results. This situation could never be intended by the Legislature. This is ably illustrated by a learned Judge of the Nagpur High Court in minority judgment in mohammadi Gul Rohilla v. Emperor, AIR 1932 Nag 121 at p. 126 (FB) (A), Niyogi, A. J. C. observed: "if an appeal is preferred subsequent to the decision by the High Court of the convict's appeal relating to the minor offence, the Court dealing with such appeal cannot exercise its full powers. I shall explain the position by an illustration: A man is convicted of offence punishable under section 304, but acquitted of offence under Section 302. Both the local Government and the convict have the right of appeal. I shall now examine the effect of the High Court's decision in the convict's appeal relating to a minor offence. The Court hearing this appeal can exercise all powers mentioned in (b) of Section 423. It may either (i) acquit the accused, or (ii) order a retrial, or (iii) affirm the conviction. Whatever the decision, it cannot be set aside or altered by any Court and it is, therefore, final, (a) If the High court, acquits the accused of the minor offence (e. g. culpable homicide), is the Local government's appeal against the subordinate original or appellate Court's order of acquittal competent? I think not; for this reason that the Court dealing with appeal against acquittal cannot exercise all the powers defined in (a) of Section 423. Can it convict the man of murder in the face of the High Court's order of acquittal on the same facts? If it can, which of the two decisions is to prevail? (b) If the High Court dealing with the convict's appeal orders a retrial, is it open to Court hearing the appeal against acquittal to convict the accused and pass a sentence of death? Can such a sentence be carried out while the High court's order of retrial in the convict's appeal stands and is being given effect to? (c) If the High court in the convict's appeal affirms the conviction, can the Court hearing the appeal under section 417, order a retrial? If so, how can this be effective in the face of the other Judgment already passed by the same Court?";