STATE OF GUJARAT Vs. DIWANJI GARDHARJI

JUDGEMENT

(1.) This is an appeal against the orders of acquittals of respondents passed by the learned Sessions Judge Banaskantha. A preliminary objection is raised that this appeal is not maintainable in view of the fact that Criminal appeal No. 645 of 1960 filed by the respondents against their convictions was already decided by a Division Bench of the High Court on 2nd February 1961.

(2.) The contention that by reason of the judgment of the Division Bench of this High Court in Criminal Appeal No. 645 of 1960 which was an appeal by the respondents against their conviction under section 304 I.P.C. an appeal against the acquittal of the respondents under section 302 I.P.C. is not competent is based mainly on sections 369 430 and 421 Criminal Procedure Code. Section 430 Cri. Pro. Code provides as follows:

(3.) If is therefore urged that the judgment of the First Bench of this High Court in Criminal Appeal No. 645/60 is final and that the High Court can pass no further orders in respect of the same accused even if the State has filed another appeal from acquittal under section 302 of the Indian Penal Code. In support of this contention reliance is placed on the Full Bench decision of the Madhya Bharat High Court in A. I. R. 1952 Madhya Bharat 1 (Babu son of Sirjeram v. State) the Full Bench decision of the Punjab High Court in A.I.R. 1958 Punjab 233 (The State v. Mansha Singh Bhagwant Singh) and also on the reasoning of Niyogi A. J. C. in A. I. R. 1932 Nagpur 121 at page 125. The appeal against the conviction under section 304 I.P.C. was filed by the respondents and admitted and numbered as Appeal No. 645/60. That appeal was decided in February 1961 and Appeal No. 105 of 1960 was filed on 11-3-1961 by the State against the acquittal of the respondents under section 302 I.P.C. and it was not summarily dismissed under section 421 Cri. Pro. Code but a notice of the appeal was given to the accused under section 422 Cri. Pro. Code. The High Court having admitted both the appeals-one by the accused against their conviction and the other by the State against the acquittal and having given notice of both the appeals under section 422 it was obligatory on the part of the High Court to proceed to hear and decide them as provided in section 423 Cri. Pro. Code and to pass judgments in both the appeals. In the instant case the appeal against acquittal under section 302 I. P. C. having been admitted under section 422 Cri. Pro. Code it is too late now to contend that the appeal is not maintainable. The appeal has been admitted and a notice has been given as provided in section 422 Cri. Pro. Code and the appeal must be heard and decided in accordance with section 423 Cri. Pro. Code and a judgment must follow as provided in sections 424 and 425 Cri. Pro. Code. A criminal appeal which was competent when it was filed cannot become incompetent by reason of any subsequent event or by reason of any judgment in another appeal arising out of the same trial. It is true that when the appeal by the State against the acquittal was dealt with under sections 421 and 422 Cri Pro. Code no notice was given to the accused because no notice was necessary to be given under section 421 Cri. Pro Code. We will therefore hold that at present it is open to the respondents to challenge the maintainability of the appeal. The Criminal Procedure Code having clearly provided for an appeal against an acquittal unless there is a specific provision in law anywhere else it is not open to contend that an appeal for which there is a specific provision in the Criminal Procedure Code is not competent and does not lie. It is true that while hearing the appeal the Appellate Court is bound by the provisions of other laws if any such as secs. 430 417 and 369 Cri. Pro. Code. While hearing the Appeal the Appellate Court may find that a particular point involved in that appeal has been finally decided by a competent Court and is therefore what may be called res judicata or final. In such a case the Appellate Court will treat that decision as final and as res judicata but that will not affect that competency to hear and decide the appeal which it is obligatory on its part to decide. The Appellate Court would therefore take care to see that it does not ignore the provisions of section 430 Cri. Pro. Code and that it does not interfere with any final decision by any competent Court. The decision given by the High Court in Appeal No. 645/60 is no doubt final and will have to be treated as final. But even doing so it is open to the Appellate Court viz. the High Court to dispose Appeal No. 105 of 1961 which is an appeal against acquittal as the appeal against acquittal raises points which are different from those decided in Appeal No. 645/60. The points arising and decided in Appeal No. 645 of 1960 are as follows :