STATE Vs. MANSHA SINGH BHAGWANT SINGH

JUDGEMENT

(1.) THE following question was referred to the Full Bench:

(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firmly of the opinion that the judgment of the trial Court has merged in the judgment of the High Court and has indeed been replaced by it.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judgment of the lower appellate court is filed under Section 417 the finality of the judgment of that Court would be superseded by the judgment of the High Court.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:

(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: