KAPIL DEO SHUKLA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order dated August 12, 1953, of a Division Bench of the Allahabad High Court (Desai and Beg, JJ.), setting aside the order of acquittal passed by the learned Additional Sessions Judge at Allahabad, dated July 31, 1950, in Sessions trial No. 22 of 1949. The appellant had been charged under Ss. 408 and 477-A of the Indian Penal Code, and tried by jury of five. The jury returned a unanimous verdict of not guilty. The learned Additional Sessions Judge accepted the verdict of the jury and acquitted the accused. On appeal by the Government of Uttar Pradesh, the High Court in a judgment covering about 130 typed pages, set aside the order of acquittal, and convicted the appellant under the sections aforesaid, and sentenced him to rigorous imprisonment for four years and a fine of ten thousand rupees, in default of payment, further rigorous imprisonment for one year under S. 408, Indian Penal Code, and to rigorous imprisonment for four years under S. 477A, Indian Penal Code, the sentences of imprisonment under the two sections to run consecutively. Out of the fine, if realized, seven thousand rupees was directed to be paid to the Imperial Bank of India, Allahabad, as compensation. The prayer for a certificate of fitness for appeal to this Court, was refused. The appellant moved this Court and obtained special leave to appeal by order dated December 15, 1953.

(2.) In the view we take of the legality of the trial in this case, it is not necessary to go into the details of the prosecution case except to state that the appellant was charged under the sections aforesaid, for having committed criminal breach of trust in respect of valuable securities amounting to Rs. 7,410 odd, of the imperial Bank at Allahabad, while in the employment of the Bank as a clerk, and had in that capacity, "with intent to defraud, destroyed altered, mutilated and falsified accounts and other papers" during January to July 1946.

(3.) A number of contentions were raised before us by the learned counsel for the appellant, but it is necessary to notice only two of them, namely, (1) that the appeal by the State of Uttar Pradesh, to the High Court, should not have been entertained as the memorandum of appeal did not comply with the requirements of law as laid down in Ss. 418 and 419 of the Code of Criminal Procedure; and (2) that the trial in the Sessions Court was no trial at all in the eye of law. In respect of the first contention, it is enough to say that though the memorandum of appeal filed in the High Court, was wholly inadequate, the defect was not such as to render it null and void so as to entitle the High Court to reject it in limine. The point arises in this way:apart from the prayer, the only ground taken in the petition of appeal is "that the order of acquittal is against the weight of evidence on the record and contrary to law". The argument is that under S. 418 of the Criminal Procedure Code, where a trial is by jury, "the appeal shall lie on a matter of law only", and as no particular error of law is set out in the memorandum of appeal, the consequence of this serious omission, it is further contended, is that in the eye of law, this was no petition of appeal at all, which could have been entertained by the High Court. This contention was raised before the High Court by way of a preliminary objection to the maintainability of the appeal. The High Court overruled that objection on the ground that S. 419 which is the specific provision of the Code of Criminal Procedure, relating to petition of appeal, only requires that it shall be in writing and accompanied by a copy of the judgment or order appealed against, and in cases tried by jury, a copy of the heads of the charge recorded under S. 367 of the Code. The High Court observed that there is no provision in the Code which required that the petition of appeal should specify the matters of fact or of law, on which the appeal is based. The Court also referred to the prevailing practice in that Court according to which no specific grounds are taken either on fact or on law. According to the High Court, there was no difference between an appeal based on facts and an appeal based only on questions of law, as in the case of a jury trial. In view of these considerations, the High Court held that the preliminary objection was not well-founded in law.