(1.) In the case of Zamir Qasim a point of law has arisen which relates to the interpretation of Section 428(1)(b)(2), Criminal P.C., which says that the appellate Court may in an appeal from a conviction alter the finding, maintaining the sentence, or with or without altering the finding reduce the sentence. It has been argued by learned Counsel for the Crown that in case the charges under Sections 120B and 457, Indian Penal Code, are not made out against Zamir Qasim, it is open to this Court to convict him either under Section 411 or Section 414, Indian Penal Code. He was charged of these offences along with others in the Court below. The learned Sessions Judge, however, found him guilty under two counts only, namely, Secs.120B and 457, Indian Penal Code. There is no specific order of acquittal with respect to other charges, but from the language of the charge and the finding of the learned1 Judge of the Court below with respect to that charge, it is manifest that in his judgment the appellant Zamir Qasim was not guilty of an offence under Section 411 or Section 414, PenalJCode. It is urged on behalf of Zamir Qasim that he must be deemed to have been acquitted of those charges by implication.
(2.) The question for consideration is whether this Court is empowered to convert the finding of an acquittal into one of conviction. This matter has given rise to some divergence of judicial opinion. A large number of cases have been cited before us by the learned Assistant Government Advocate. We propose referring to a few of them. The first case in point is Queen-Empress y. Jabanullah ( 96) 23 Cal. 975. Banerjee J., in course of his judgment observed: Section 423, Clause (b) has no such restriction imposed upon it. There is under that clause only one restriction to the power of the appellate Court on an appeal from a conviction, and that is, that it cannot enhance the sentence. It is possible to imagine cases in which this restriction may stand in the way of the appellate Courts altering the finding. Thus, if an accused person is charged with having murdered A, and also with having caused grievous hurt to him, and is acquitted of the former offence but convicted of the latter and sentenced to seven years rigorous imprisonment by the first Court, the appellate Court cannot, on the appeal of the accused, alter the finding into one of guilty of murder, because, as it cannot enhance the sentence, the result will be that a person convicted of murder for which the only punishment is either death or transportation for life, will be punished merely with imprisonment for seven years - a sentence which is not in accordance with law.... I think the appellate Court can, in an appeal from a conviction alter the finding of the lower Court and find the appellant guilty of any offence of which he may have been acquitted by that Court. This case was followed in Emperor V/s. Sardar (12) 34 All. 115. In that case there was no specific order of acquittal by the trial Court. The learned Judge, however, held that in appeal it was permissible for him to convert the finding of acquittal into one of conviction. The same view was taken in Dulli V/s. Emperor ( 18) 5 A.I.R. 1918 All. 65. In that case there was a specific order of acquittal : see also Raghunath V/s. Emperor and Emperor V/s. Jagannath . The following observations of the learned Judges in Kishan Singh V/s. Emperor ( 28) 15 A.I.R. 1928 P.C. 254 are significant: The case in Raghunath V/s. Emperor , decided by a Bench of which one of us was a member, was very similar to the case before us.... It was held by this Court that it was open to the High Court under Section 423, Criminal P.C., to convict the accused under Section 147, Indian Penal Code, inasmuch as there was no acquittal on the charge under that section, but merely an omission to record a conviction.
(3.) The distinction pointed out by the learned Judges does not appear to be very material in view of the observations in Kishan Singh V/s. Emperor ( 28) 15 A.I.R. 1928 P.C. 254. Their Lordships observed: The learned Judge did not record an express finding of acquittal in respect of the charge of murder, but their Lordships are of opinion that the conclusion at which the learned Judge arrived amounted to an acquittal in respect of that charge.... The appeal, therefore, must be decided upon the assumption that the appellant was acquitted of the charge, of murder and that he was convicted of the offence punishable under Section 304, Indian Penal Code. The view of law laid down in Queen-Empress V/s. Jabanullah ( 96) 23 Cal. 975 has been followed in Calcutta, Madras, Patna and Oudh, viz., Lakhansingh V/s. Emperor ( 34) 21 A.I.R. 1934 Oudh. 200, Hanuman Sarma V/s. Emperor , Dhanpat Singh V/s. Emperor ( 17) 4 A.I.R. 1917 Pat. 625, Mahangu Singh V/s. Emperor ( 18) 5 A.I.R. 1918 Pat. 257, Golla Hanumappa V/s. Emperor ( 12) 35 Mad. 243 etc. See also Sia Ram V/s. Emperor Cr. Ref. No. 128 of 1941. In view of the authorities cited above, we would have had no hesitation in accepting the contention put forward by learned Counsel for the Crown. Some difficulty, however, has arisen in view of certain observations made by their Lordships of the Judicial Committee and in one case by this High Court, which will be noticed presently. It has been argued on behalf of the appellant that Section 423 (1)(b)(2) empowers the Court of appeal to alter the finding only in cases of conviction as would be manifest from the language of the section itself. It is urged that the finding may be altered in only two sets of circumstances, (1) where the finding of the trial Court may be altered by the appellate Court while maintaining the sentence inflicted by the trial Court in consequence of that finding and secondly, with or without altering the finding of the trial Court, it may reduce the sentence. In either of these cases there must be a sentence which may be either maintained or reduced. A sentence can be passed only upon conviction. In the present case it is urged that as no sentence was passed with respect to Section 411 or Section 414, Indian Penal Code, it is therefore not possible to alter the finding so as to reverse the order of acquittal and substitute it by an order of conviction. It is contended that the only manner in which an order of acquittal may be set aside is provided by Section 417, Criminal P.C. In other respects an order of acquittal is final and cannot be interfered with by any Court. In support of this contention reliance has been placed on the observations of a Bench of this Court in Emperor V/s. Sheodarshan Singh ( 22) 9 A.I.R. 1922 All. 487. In that case it was remarked: We cannot, however, change the conviction into a conviction of murder. Sheodarshan Singh was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal. These observations were made in an application in revision. Section 439 (4), Criminal P.C., clearly provides to that effect. The last sentence which says that the only method by which an order of conviction may be set aside is by an appeal by the Government may be regarded as obiter. Their Lordships of the Privy Council in Kishan Singh V/s. Emperor ( 28) 15 A.I.R. 1928 P.C. 254 cited above, quoted with approval the observations of the learned Judges in Emperor V/s. Sheodarshan Singh ( 22) 9 A.I.R. 1922 All. 487 and remarked: Their Lordships are of opinion that the above is a correct statement of the law it is indeed no more than a repetition of the provisions of the material sections of the Criminal Procedure Code. It is argued that the observations of their Lordships are wide enough to cover the present case and that unless an appeal is made under Section 417, the order of acquittal must be maintained. This question was subject of discussion in Sarda Prasad V/s. Emperor , decided by Sulaiman C.J., and Bennet J. This case undoubtedly goes the whole length in favour of the contention of learned Counsel for the appellant. At p. 146 the learned Judges said: Sub-section (1)(b) on the other hand refers to the case where there is an appeal from a conviction and is sub-divided into three parts : (1) under which the appellate Court can reverse the finding or sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial (2) or alter the finding, maintaining the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence. Now, there is clearly a distinction between reversing a finding and merely altering it. Where an order of acquittal is to be converted into an order of conviction it amounts to a reversal of the order. On the other hand where the conviction under one section is altered to a conviction under some other section, maintaining the sentence or reducing it or altering it, it amounts merely to an alteration of the finding and not to a reversal of the finding. It is clear to us that Sub-section (1)(b) is not applicable to a case where there is an express order of acquittal and no appeal from a conviction pending before the appellate Court. In such a case the appellate Court has no power to reverse the finding at all. It cannot by convicting the accused of the offence of which he has been acquitted reverse the finding, by regarding it as if it were merely an alteration of the finding. It is manifest that the learned Judges were of opinion that the alteration of the finding is limited to cases which may be covered by Secs.236, 237 and 238, Criminal P.C., and which do not involve the reversal of an order of acquittal. Such questions often arise in appeals before this Court and the Courts below. We consider it desirable that there should be an authoritative pronouncement on this question by a larger Bench. We, therefore, order that this matter may be placed before the Hon ble the Chief Justice for constitution of a larger Bench for the decision of the following point: Whether a Court of appeal is empowered under Section 423(1)(b)(2) to alter a finding of acquittal into one of conviction. The case of Zamir Qasim and others will be put up for delivery of judgment after the decision of the reference by the Full Bench. Iqbal Ahmad, C.J.