THIAGARAJA BHAGAVATHAR Vs. EMPEROR

JUDGEMENT

(1.) THESE are consolidated appeals by special leave from a judgment of the High Court at Madras in its appellate criminal jurisdiction dated October 29, 1945, which affirmed a judgment of the same High Court in its original criminal jurisdiction dated May 3, 1945.

(2.) THE appellants were tried by the said High Court, with certain other persons, for conspiracy under Section 120b of the Indian Penal Code and abetment to commit murder under Section 802 read with Section 109, and were convicted on both charges, and sentenced to transportation for life. THEy appealed to the High Court, and by an order dated July 12, 1945, the appellate Court allowed them to appeal on matters of fact as well as of law under Section 411a (7) (b) of the Code of Criminal Procedure.

(3.) IN the case of trial by jury in a Court of Session in the moffussil, there is a right of appeal against conviction under Section 410 of the Code, and against acquittal under Section 417. But Section 418 provides (1) that an appeal may lie on a matter of fact as well as a matter of law except where the trial was by jury, in which case the appeal shall lie on a matter of law only. (2) Notwithstanding anything contained in Sub-section (1) or in Section 423, Sub-section (2), when, in the case of a trial by jury, any person is sentenced to death, any other person convicted in the same trial with the person so sentenced may appeal on a matter of fact as well as a matter of law. This sub-section must be read with Section 374 which requires any sentence of death passed by a Court of Session to be confirmed by the High Court. Section 428 (1) confers various powers upon the Court of appeal, but Sub-section (2) provides: Nothing herein contained shall authorize 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. Section 449 allows an appeal from the verdict of a jury upon a matter of fact as well as upon a matter of law in cases tried under ch. XXXIII of the Code which relates to cases in which European and British INdian subjects are concerned. It may be noticed also that it is provided under Section 307 that if the Judge disagrees with the verdict of the jurors or a majority of them and is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court, he shall submit it accordingly, and on such reference the High Court may exercise any of the powers which it may exercise on an appeal, and shall dispose of the reference as provided in the section. IN that state of the law. Act XXVI of 1943 enacted as follows : INsertion of new Section 411a in Act V of 1898. After Section 411 of the Code of Criminal Procedure, 1898 (V of 1898) (hereinafter referred to as the said Code), the following section shall be inserted, namely : 411a. Appeal from sentence of High Court. (1) Without prejudice to the provisions of Section 449 any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in Section 418 or Section 423, Sub-section (2), or in the Letters Patent of any High Court, appeal to the High Court (a) against the conviction on any ground of appeal which involves a matter of law only: (b) with the leave of the appellate Court, or upon the certificate of the judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be sufficient ground of appeal; and (c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law. (2) Notwithstanding anything contained in Section 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, and such appeal may, notwithstanding anything contained in Section 418, or Section 423, Sub-section (2), or in the Letters Patent of any High Court, but subject to the restrictions imposed by Clause (6) and Clause (c) of Sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law. The Act contains certain consequential amendments of the Code and of the Letters Patent to which it is not necessary to refer.