PETITIONER:
HANUMANT DASS
Vs.
RESPONDENT:
VINAY KUMAR & ORS.
DATE OF JUDGMENT05/04/1982
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1982 AIR 1052 1982 SCR (3) 595
1982 SCC (2) 177 1982 SCALE (1)310
ACT:
Party to an appeal against conviction/acquittal-
Necessary party-occurrence of offence taking place in the
territorial limits of one State, but the trial takes place
in another State, pursuant to an order of transfer by the
Supreme Court-In the appeal by the accused before the High
Court, which is the necessary party respondent-Public
Prosecutor of the State where the offence took place or of
the State where the trial took place-Code of Criminal
Procedure, 1973, sections 2(4), 24, 224, 378, 385 and
432(7), scope of.
Records, summoning of-Whether non-summoning of records
vitiates the order in appeal, Code of Criminal Procedure,
1973 section 385(2), explained-Setting aside of the judgment
is not possible unless the ingredients of section 465
Criminal Procedure Code are satisfied.
HEADNOTE:
Vinay Kumar, the husband of the deceased Asha and his
mother Chhano Devi were charged, convicted for the offence
of burning alive the deceased and sentenced to life
imprisonment on a complaint by Hanumant Dass the father of
the deceased and the appellant in Criminal Appeal 45 of 1982
by the Sessions Judge Gurdaspur, Punjab. The offence is
alleged to have been committed within the territorial limits
of the State of Himachal Pradesh, but on an application of
the complainant the case was transferred by an order of the
Supreme Court inasmuch as the accused were the brother-in-
law and mother-in-law of a Judge of the High Court of
Himachal Pradesh. In appeal by tho accused the High Court of
Punjab issued, on 22-6-1981, notice for 6-7-1981 to the
Advocate General of Punjab only and on that date heard the
appeal and acquitted both the accused. Hence the appeal by
the complainant and the special leave by the State of
Himachal Pradesh.
Dismissing the appeal and the Special Leave Petition,
the Court,
^
HELD: 1. The charge levelled against the High Court
that it was in a hot haste to decide the appeal at the
earliest possible is incorrect in view of the order dated
22-6-1981 passed by the High Court of Punjab. [600 B]
2:1. Section 385 of the Code of Criminal Procedure is a
mandatory provision and the requirement of the section must
be satisfied. In the appeal before tho High Court State of
Punjab was made a party and notice of the appeal was also
given to the Advocate General of Punjab. From sections 2(4),
24, 225, 378 and 432 it is evident that there shall be a
Public Prosecutor for conducting any prosecution appeal or
other proceeding on behalf of the Central
596
Government or State Government in the High Court. If notice
has been given to the Public Prosecutor, namely, the
Advocate-General of Punjab the requirement of law has been
fulfilled. [601 B-C, 603 C-D]
2:2. Section 432 of the Criminal Procedure Code defines
"appropriate Government" as meaning (a) in cases where the
sentence is for an offence against, or the order referred to
in sub-section (6) is passed under any law relating to a
matter to which the executive power of the Union extends,
the Central Government; (b) in other cases, the Government
of the State within which the offender is sentenced or the
said order is passed. According to this section the
appropriate Government is the Government of the State of
conviction and not the Government of the State where the
offence was committed. [603 C-D]
State of Madhya Pradesh v. Ratan Sing & Ors., [1976]
Supp. S.C.R. 552, applied.
3. To contend that the High Court disposed of the
appeal even without summoning the record is incorrect. No
specific allegation has been made in the Special Leave
Petition that the record was not summoned. The tenor of the
judgment of the High Court indicates that the record must
have been there before the High Court. There is copious
reference to the materials on the record which could be
possible only when the record was there before the court.
Besides, the counsel for the appellant made a statement
before the court that on the finding of fact recorded by the
High Court he was entitled to an acquittal and in this view
of the matter even if the record had not been summoned that
would not be fatal. Further proviso to sub-section (2) of
section 385 itself provides "...the court may dispose of the
appeal without sending for the record," in a certain
situation. The rigour of sub-section (2) of section 385,
which provides that "the Appellate Court shall then send for
the record of the case...." has been taken away by the
proviso in a certain situation. If the appellant himself
says that the appeal can be allowed on the findings recorded
by the Sessions Judge, the non-summoning of the record, if
it was at all so, would not be fatal. The complainant was
present with his counsel, the State Advocate-General was
also present. If there had been any grievance about the
record, they would have raised an objection. Their non-
objection on this point is also an indicator that the record
was there or in any case, the summoning of the record was
not thought to be necessary by the parties. [604 E-H, 605
A-B]
4. On merits also there is no case for the appellants
since each and every aspect of the matter has been
thoroughly discussed by the High Court which has referred to
the error committed by the Sessions Judge in the approach of
the case and also in making unwarranted assumptions. There
is no eye witness. The fate of the case hinges upon the
circumstantial evidence. The High Court has dealt with the
two dying declarations, one recorded by the Doctor and the
other by the Assistant Sub-Inspector. The High Court also
took into consideration the oral dying declaration on which
the prosecution strongly relied. But even that declaration
does not implicate the accused. [605 G-H, 606 A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45
of 1982.
597
From the Judgment and Order dated the 9th July, 1981 of
the Punjab and Haryana High Court at Chandigarh in Criminal
Appeal No. 333-DB of 1981,
AND
S.L.P. (Crl.) No. 2948 of 1982.
R.L. Kohli and R. C. Kohli for the Appellants.
T.U. Mehta and A.G. Ratnaparkhi for Respondent No. 1.
N.C. Talukdar and R.N. Poddar for Respondent No. 3.
N.C. Talukdar and R.N. Poddar for the Petitioner in
S.L.P. (Crl.) No. 2498/81.
D. D. Sharma for the State.
The Judgment of the Court was delivered by
MISRA, J. The appeal as well as the special leave
petition are directed against the judgment of the High Court
of Punjab and Haryana at Chandigarh dated 9th July, 1981.
Criminal appeal has been filed by the complainant while the
special leave petition has been filed by the State of
Himachal Pradesh. Vinay Kumar and his mother Chhano Devi
were convicted for the murder of Asha, the wife of Vinay
Kumar by burning her alive and sentenced to life
imprisonment by the learned Sessions Judge, Gurdaspur. On
appeal by the accused, the High Court acquitted them by the
impugned judgment.
The prosecution case set up at the trial was that the
deceased Asha was married with Vinay Kumar in July, 1972.
The marriage was an arranged marriage. It did not prove to
be a success, the apparent cause for the failure of marriage
was that Asha was only a matriculate and not cultured enough
to move about in the society with the husband. To make up
this deficiency the deceased again resumed her studies and
started attending college at Nagrota Bhagwan. While
prosecuting her studies she was rebuked and abused and
sometimes even thrashed, whenever she visited the house of
her-in-laws. She however, kept on suffering in the vain hope
that in due course of time things might improve. There was,
however, no improvement and she was fed-up with the
maltreatment and
598
cruelty meted out to her in the in-laws house. She left the
matrimonial home and started living with her parents
sometime in the year 1975 or early 1976.
In 1977 Vinay Kumar filed a petition in the court of
the District Judge, Kangra at Dharamshala under section 13
of the Hindu Marriage Act for the dissolution of his
marriage with the deceased on various grounds including one
of desertion. The District Judge in the first instance tried
for reconciliation between the spouse and as an interim
arrangement Asha returned to her-in-laws house in June 1978
on trial basis, while divorce petition was kept pending and
adjourned to July 29, 1978. As the parties did not appear in
the Court on the date fixed, it was presumed that they were
living happily and the proceedings were, therefore,
consigned to the record.
On 5th of August, 1978 at about 11 a.m. Kanwal Nain
P.W. 4, Bil Bhandur P.W. 14, employee of the Post office,
which was just in front of the house of the accused at a
distance of 10/12 feet, and a number of other persons saw
smoke coming out of the window of the house of the accused.
When Bil Bhandur and others went to the house, they found
the outer door locked. There was no other means of ingress
to the house. After a short while one Raj brought the key
from Chhano Devi accused with which the lock was opened and
entry gained into the house. Asha was found burning and
after extinguishing the fire, she was removed to the local
hospital.
Dr. O. P. Dutta attended her and sent an intimation of
the incident to the Incharge local Police Post. He recorded
the statement of Asha on the out-patient register 13x. PL.
Meanwhile Kesar Singh, Assistant Sub-Inspector, arrived
there an d after getting a certificate from Dr. Dutta, he
also recorded her statement Ex. PU. From Civil Hospital,
Kangra Asha was removed in a truck to a Civil Hospital in
Dharamshala (H.P.) where she breathed her last.
In her statements recorded by Dr. Dutta and Kesar
Singh, the deceased disclosed that her clothes caught fire,
while she was preparing tea. The police suspected no foul
play and did not register any case. The father of the
deceased Hanumant Dass, however, made a report on 7th
August, 1978 and a case was registered on that basis. The
accused were sent up for trial. When the case was pending in
the Court of Sessions Judge, Dharamshala in Himachal
Pradesh, the complainant moved an application to the
599
Supreme Court for transfer of the case from Himachal Pradesh
to some other province. The case was transferred to a Court
of competent jurisdiction at Gurdaspur in Punjab. The
Sessions Judge, Gurdaspur convicted both the accused under
section 302 read with section 34 of the Indian Penal Code
and sentenced them to life imprisonment. This conviction was
based only on the circumstantial evidence. Accused went up
in appeal to the High Court. The High Court in its turn set
aside the order of conviction and acquitted the accused of
the charge.
The complainant has filed the present appeal. Shri
Kohli appearing for the complainant has strenuously
contended that the appeal before the High Court has been
allowed in the absence of the State of Himachal Pradesh and
without any notice to that State and as such the impugned
judgment of the High Court is a nullity and should be set
aside on that ground alone. The accused had impleaded only
the State of Punjab as a party and the High Court has issued
notice to the Advocate-General of Punjab. As a second limb
to this argument it has been contended by Shri Kohli that
the appeal was filed in the High Court on 15th June, 1981
and while considering the application for bail on 22nd of
June, 1981, posted the appeal for hearing on 6th of July,
1981 after service of notice on the Advocate-General of
Punjab and the appeal was decided on 9th July, 1981 without
even summoning the record. Thus the High Court was in a hot
haste to dispose of the appeal even without reasonable
opportunity being afforded to the counsel for the State and
without impleading the appropriate State as a party to the
appeal and without notice to the counsel for the State of
Himachal Pradesh.
We may first deal with the criticism of the learned
counsel about the undue haste in the disposal of the appeal
by the High Court. It appears that Shri M.R. Mahajan,
counsel for the appellants while moving the application for
bail made a statement before the High Court and it is on his
statement that the case was posted for hearing at the
earliest possible. This will be apparent from the order
dated 22.6.1981 passed by the High Court while disposing of
the application for bail. The order insofar as it is
material for consideration of the point reads:
“.. Mr. Mahajan, Advocate states that on the
findings of fact recorded by the learned trial Judge,
the conviction of the appellants cannot be sustained.
Notice for 6.7.81.
600
to the Advocate-General, Punjab. Copy of the grounds of
appeal and the judgment rendered by the learned trial
Judge be delivered in the office of the A. C. Punjab
within two days, The case is likely to be disposed of
on that date … … ”
Therefore, the charge levelled against the High Court that
it was in a hot haste to decide the appeal at the earliest
possible appears to be uncalled for.
This leads us to the main contention raised by Shri
Kohli that the transfer of the case from Dharamshala lying
within the territorial jurisdiction of the High Court of
Himachal Pradesh to Gurdaspur Lying within the jurisdiction
of the Punjab and Haryana High Court, does not change the
parties and the parties remain the same even after the
transfer of the case from Dharamshala to Gurdaspur. In this
view of the legal position, the State of Himachal Pradesh
where the offence was committed was a necessary party and
should have been impleaded in appeal. In the absence of the
State of Himachal Pradesh as a party and in the absence of
notice to the counsel for the State of Himachal Pradesh, the
High Court was not justified in disposing of the appeal and
its judgment is only a nullity.
This contention is based on section 385 of the Code of
Criminal Procedure. Insofar as it is material for the
purpose of the case it reads :
“385(1): If the Appellate Court does not dismiss
the appeal summarily, it shall cause notice of the time
and place at which such appeal will be heard to be
given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may
appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in
case instituted upon complaint, to the
complainant;
(iv) if the appeal is under section 377 or section 378,
to the accused, and shall also furnish such
officer, complainant and accused with a copy of
the grounds of appeal.
601
(2) The Appellate Court shall then send for the record
of the case, if such record is not already
available in that Court, and hear the parties:
Provided that if the appeal is only as to the
extent or the legality of the sentence, the Court may
dispose of the appeal without sending for the record.
(3) ………………………..
There is no denying the fact that section 385 of the Code is
a mandatory provision and the requirement of the section
must be satisfied. In the appeal before the High Court,
State of Punjab was made a party and notice . Of the appeal
was also given to the Advocate-General of Punjab. According
to Shri Kohli this does not satisfy the requirement of law.
It would be appropriate at this stage to refer to other
relevant provisions of the Code:
Section 225 provides that-“In every trial before a
Court of Session, the prosecution shall be conducted by
a Public Prosecutor.”
Section 2(4) defines public prosecutor-“Public
Prosecutor means any person appointed under section 24,
and includes any person acting under the direction of a
public prosecutor.”
Section 24 deals with “Public Prosecutors in the High
Court”:
“24. Public Prosecutors:-(I) For every High Court,
the Central Government or the State Government shall,
after consultation with the High Court, appoint a
Public Prosecutor and may also appoint one or more
Additional Public Prosecutors, for conducting in such
Court, any prosecution, appeal or other proceeding on
behalf of the Central Government or State Government,
as the case may be.
………………………………
Section 378 talks of an appeal in case of acquittal. Insofar
as it is material it reads thus:
“378(1) Save as otherwise provided in sub-section
(2) and subject to the provisions of sub-sections (3)
and (5)
602
the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High
Court from an original or appellate order of acquittal
passed by any Court other than a High Court, (or an
order of acquittal passed by the Court of Session in
revision).
(2) If such an order of acquittal is passed in any
case in which the offence has been investigated by the
Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946, or by
any other agency empowered to make investigation into
an offence under any Central Act other than this Code,
the Central Government may also direct the Public
Prosecutor to present an appeal, subject to the
provisions of sub-sec. (3) to the High Court from the
order of acquittal.
………………………
Section 432 authorises the appropriate Government to suspend
or remit sentences.
“432(1): When any person has been sentenced to
punishment for an offence, the appropriate Government
may, at any time, without conditions or upon any
conditions which the person sentenced accepts, suspend
the execution of his sentence or remit the whole or any
part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the
appropriate Government for the suspension for remission
of a sentence, the appropriate Government may require
the presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion
as to whether the application should be granted or
refused, together with his reasons for such opinion
(3) . . .. … (4)…….. (s)
(6) The provisions of the above sub-sections shall
also apply to any order passed by a Criminal Court
under any section of this Code or of any other law
which restricts the liberty of any person or imposes
any liability upon him or his property,
603
(7) In this section and in section 433, the
expression “appropriate Government” means-
(a) in cases where the sentence is for an offence
against, or the order referred to in sub-
section (6) is passed under, any law relating
to a matter to which the executive power of
the Union extends, the Central Government;
(b) in other cases, the Government of the State
within which the offender is sentenced or the
said order is passed.
From the various provisions extracted above it is evident
that there shall be a Public Prosecutor for conducting any
prosecution appeal or other proceeding on behalf of the
Central Government or State . Government in the High Court.
If notice has been given to the Public Prosecutor viz. the
Advocate-General of Punjab the requirement of law to our
mind has been fulfilled.
Shri Kohli, however, contends that occurrence in the
instant case took place within the territorial limits of
Himachal Pradesh. That State, therefore, will continue to be
a necessary party in the appeal irrespective of the fact
that the appeal was filed in the Punjab High Court.
Section 432(7) extracted above defines “appropriate
Government”. “Appropriate Government” means-(a) in cases
where the sentence is for an offence against, or the order
referred to in subsection (6) is passed under any law
relating to a matter to which the executive power of the
Union extends, the Central Government; (b) in other cases,
the Government of the State within which the offender is
sentenced or the said order is passed.
According to this section the appropriate Government is
the Government of the State of conviction and not the
Government of the State where the offence was committed. A
somewhat similar question came up for consideration in the
State of Madhya Pradesh v. Ratan Singh & Ors.,(1) where the
respondent was convicted and sentenced to imprisonment for
life by a court in the State of Madhya Pradesh. At his
request he was transferred o a Jail in the State H
604
of Punjab, to which State he belonged. He applied to the
Government of Punjab that under the Punjab Jail Manual he is
entitled to be released since he had completed more than 20
years of imprisonment. The application was sent to the
Government of Madhya Pradesh, which rejected it. In a Writ
petition filed by him the High Court of Punjab and Haryana
held that the State of Punjab was the appropriate authority
to release him and directed the State of Punjab to consider
the matter. This Court in appeal observed “a perusal of this
provision clearly reveals that the test to determine the
appropriate Government is to locate the State where the
accused was convicted and sentenced and the Government of
that State would be the appropriate Government within the
meaning of sec. 401 of the Code of Criminal Procedure. Thus
since the prisoner in The instant case, was tried, convicted
and sentenced in the State of Madhya Pradesh, the State of
Madhya Pradesh would be the appropriate Government. to
exercise the discretion for remission of the sentence under
sec. 401(1) of the Code of Criminal Procedure…. .” That
was a case based on section 401 of the old Criminal
Procedure Code, but the Code of Criminal Procedure, 1973 has
put the matter completely beyond any controversy and
reiterated the provisions of section 402(3) in sub-section
(7) of section 432,
Lastly it was contended that the appeal was disposed of
by the High Court even without summoning the record. There
is no warrant for this assumption. No specific allegation
has been made in the special leave petition that the record
was not summoned. We have perused the Judgment of the High
Court and the tenor of the judgment indicates that the
record must have been there before the court. There is
copious reference to the materials on the record which could
be possible only when the record was there before the court.
Besides, . the counsel for the appellant made a statement
before the court that on the finding of fact recorded by the
High Court he was entitled to an acquittal and in this view
of the matter even if the record had not been summoned (for
which there is no basis) that would not be fatal, Proviso to
sub section (2) of section 385 itself provides “…the court
may dispose of the appeal without sending for the record.”
in a certain situation. The rigour of subsection (2) of sec.
385, which provides that “the Appellate Court shall then
send for the record of the case…” has been taken away by
the proviso in a certain situation. If the appellant himself
says that the appeal can be allowed on the findings recorded
by the Sessions Judge, the non-summoning of the record, if
it was at all so,
605
would not to our mind be fatal. The complainant was present
with his counsel, the State Advocate-General was also
present. If there had been any grievance about the record,
they would have raised an objection. Their non-objection on
this point is also an indicator that the record was there or
in any case, the summoning of the record was not thought to
be necessary by the parties. B
Assuming for the sake of argument, that there were
certain irregularities it the procedure the judgment of the
High Court could not be set aside unless it was shown by the
appellant that there has been failure of justice, as will be
evident from section 465 of the Criminal Procedure Code
which reads:
“465. Finding or sentence when reversible by
reason of __ error, omission or irregularity-
(l) Subject to the provisions herein before
contained . no finding, sentence or order passed by a
Court of competent jurisdiction shall be reversed or
altered by a Court of appeal, confirmation or revision
on account of any error, omission or irregularity in
the complaint, summons, warrant, proclamation, order,
judgment or other proceedings before or during trial or
in any inquiry or other proceedings under this Code, or
any error, or irregularity in any sanction for the
prosecution, unless in the opinion of that Court, a
failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any
error, or irregularity in any sanction for the
prosecution has occasioned a failure of justice, the
Court shall have regard to the fact whether the
objection could and should have been raised at an
earlier stage in the proceedings.”
We have perused the judgment of the High Court which
was placed before us in full. It shows that each and every
aspect of the matter has been thoroughly discussed and the
High Court has also referred to the error committed by the
Sessions Judge in the approach of the case and also in
making unwarranted assumptions.
on merits we fully agree with the appraisal of the
evidence made by the High Court. It is not necessary to
repeat the same
606
over again. There is no eye witness. The fate of the case
hinges upon the circumstantial evidence. The High Court has
dealt with the two dying declarations, one recorded by the
Doctor and the other by the Assistant Sub-Inspector. The
High Court also took into consideration the oral dying
declaration on which the prosecution strongly relied. But
even that declaration does not implicate the accused. The
reason given by the High Court for acquittal in our opinion
is cogent and plausible.
For the foregoing discussion, the criminal appeal and
the special leave petition must fail and they are
accordingly dismissed.
S.R. Appeal & Petition dismissed
607