PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
P. T. APPAIAH AND ANOTHER
DATE OF JUDGMENT28/08/1980
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
SARKARIA, RANJIT SINGH
CITATION:
1981 AIR 365 1981 SCR (1) 580
1980 SCC (4) 316
ACT:
Code of Criminal Procedure 1898, s. 498-Difference
between two Judges of High Court on nature of offence
committed by accused-Reference to third Judge-Third Judge
considering evidence and finding accused not guilty-
Acquittal whether valid.
HEADNOTE:
The Sessions Judge convicting the respondents under
section 302 read with section 34 of the Indian Penal Code,
sentenced each of them to imprisonment for life. On appeal,
a Division Bench of the High Court found that the accused
caused the injuries but the Judges composing the Division
Bench differed on the nature of the offence committed by the
accused. The third Judge to whom the case was referred under
section 429 of the Code of Criminal Procedure 1898, found no
motive for the accused to commit the offence and held that
the evidence of the chief prosecution witness was of a
doubtful nature and that it was not safe to find the accused
guilty relying on that evidence. He acquitted both the
accused.
In appeal to this Court by the State, it was contended
that as the difference between the two Judges of the
Division Bench was confined to the nature of the offence
only, the third Judge to whom the case was referred in a
reference under section 429 of the Code of Criminal
Procedure, had no power to acquit the accused by upsetting
the concurrent finding of two Judges.
Dismissing the appeal,
^
HELD: 1. The third Judge to whom the case was referred
under section 429 did not over-step the limits of his
jurisdiction and it cannot be said that the view taken by
him was unreasonable or perverse. [586 D-E]
2. In Bhagat Ram's Case, [1972] 3 SCR 303 the scope of
section 429 was not considered, nor any question was raised
whether the Judges of the Division Bench could restrict the
powers of the third Judge under section 429, nor was the
notice of the Court drawn to the three earlier decisions of
this Court. [584 D]
3. What Section 429 contemplates is that it is for the
third Judge to decide on what points he shall hear
arguments, if any, and that postulates that he is completely
free in resolving the difference as he thinks fit. [584 E]
Babu and Others v. State of Uttar Pradesh [1965] 2 SCR
771 applied.
4. The language of section 429 of the Code of Criminal
Procedure is explicit that the case with the opinion of the
Judges comprising the Court of
581
Appeal shall be laid before another Judge of the same Court
and that the judgment or order shall follow the opinion of
the third Judge who can or will deal with the whole case.
[585 D-E]
Union of India and another v. B. N. Ananti Padmanabiah
etc. [1971] Suppl. SCR 460: Hethubha v. The State of Gujarat
[1971] 1 SCR 31; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 112 of
1975.
Appeal by Special Leave from the Judgment and Order
dated 3-10-1974 of the Andhra Pradesh High Court in Criminal
Appeal Nos. 57 and 325/72.
P. Rama Reddy, G. S. Rao and G. N. Rao for the
Appellant.
A. N. Mulla and G. Narisimhalu for the Respondent.
The Judgment of the Court was delivered by
GUPTA, J.-This appeal preferred by the State of Andhra
Pradesh is directed against a judgment of the Andhra Pradesh
High Court by which a learned Judge of that Court exercising
jurisdiction under section 429 of the Code of Criminal
Procedure, 1898 set aside the order of conviction and the
sentences passed on the respondents before us by the
Sessions Judge, Chittoor Division. The charge against the
respondents was that at about ten on the night of September
5, 1971 Venkataramaiah Chetty and Chakala Giddappa (P.W. 1)
were returning to their village Sanganapalle from Kadepalle
where they had gone and when they were about a mile from
Sanganapalle, respondent No. 1 armed with a bill-hook and
respondent No. 2 with a stout stick attacked them and beat
Venkataramaiah Chetty severely causing multiple injuries as
a result of which he died. The Sessions Judge accepted the
evidence of P.W. 1 and the dying declaration said to have
been made by Venkataramaiah Chetty in the presence of
several witnesses including P.W. 1 and convicted the
respondents under section 302 read with section 34 of the
Indian Penal Code and sentenced each of them to undergo
imprisonment for life. On appeal preferred by the accused a
Division Bench of the High Court rejected the dying
declaration but accepted the evidence of P.W. 1 to find that
the accused caused the injuries to which Venkataramaiah
Chetty succumbed; the learned Judges composing the Division
Bench however differed on the nature of the offence that was
committed by the accused in causing these injuries. Madhava
Reddy J. held that having regard to the nature of the
injuries it was not possible to find that the accused
intended to cause death and that the offence committed by
the accused was culpable homicide not amounting to murder
punishable under section
582
304 Part I of the Indian Penal Code. Sriramulu J. was of the
opinion that in causing the injuries the accused had the
common intention to kill Venkataramaiah Chetty. He also
observed that even assuming the offence did not fall under
clause “Firstly” of section 302 of the Indian Penal Code, it
undoubtedly fell under clause “Thirdly” of that section and
on this view reached the conclusion that the Sessions Judge
was justified in convicting the accused persons under
section 302 read with section 34 of the Indian Penal Code.
The case was then referred to a third Judge, Ramchandra Raju
J., under section 429 of the Code of Criminal Procedure,
1898. Raju J. found on a consideration of the evidence that
“there does not appear to be any motive, much less
sufficient motive, for the accused to commit the offence”.
The immediate motive for the offence according to the
prosecution was an incident said to have taken place on
September 1, 1971, four days prior to the date of
occurrence, when P.W. 5, a son of the deceased, was beaten
by the accused when cattle of the deceased strayed into the
field of the first respondent. According to Raju J. what
happened on September 1, was a trivial incident, P.W. 5 did
not sustain any injury, he did not report the matter to
anyone and even when the deceased came and intervened there
was no quarrel, the accused did not try to assault the
deceased nor the deceased tried to beat the accused.
Pointing out certain infirmities in the evidence of the sole
eye-witness P.W. 1, Raju J. found that his evidence was
“doubtful and suspicious”. P.W. 7 who sought to corroborate
a part of the evidence of P.W. 1, according to Raju J. did
not “inspire much confidence”. Raju J. did not think it
“safe to find the accused guilty by placing absolute
reliance on the evidence of P.W. 1 and accordingly he
acquitted both the accused.
Before us Mr. P. Rama Reddy for the State of Andhra
Pradesh contends that it was not open to the third Judge to
upset the concurrent finding of both the learned Judges
composing the Division Bench that the accused were guilty of
some offence; it is argued that as the difference between
the two Judges of the Division Bench was confined to the
nature of the offence only, the third Judge to whom the case
was referred under section 429 of the Code of Criminal
Procedure had no power to acquit the accused. Section 429 of
the Code of Criminal Procedure, 1898 reads:
“When the Judges composing the Court of appeal are
equally divided in opinion, the case, with their
opinions thereon, shall be laid before another Judge of
the same Court, and such Judge, after such hearing (if
any) as he thinks fit, shall deliver his opinion, and
the judgment or order shall follow such opinion.”
583
In support of his contention Mr. Rama Reddy relies on the
judgment of this Court in Bhagat Ram v. State of
Rajasthan.(1) This was a decision by a Bench of two Judges.
In that case Bhagat Ram, an Inspector of Police, was charged
with having committed offences under sections 120B, 161,
218, 347 and 389 of the Indian Penal Code and also under
section 5(1)(a) read with section 5(2) of the Prevention of
Corruption Act. Another accused, Ram Swaroop, who was tried
along with Bhagat Ram was charged with having committed
offences under sections 120B and 165A of the Indian Penal
Code. The trial court acquitted both Bhagat Ram and Ram
Swaroop of all the charges framed against them. The appeal
preferred by the State of Rajasthan against the acquittal
was heard by a Division Bench composed of Tyagi and Lodha
JJ. The Division Bench confirmed the acquittal of Ram
Swaroop. The acquittal of Bhagat Ram in respect of the
charges under sections 347, 218, 389 and 120B was also
affirmed. The Judges however differed on the point whether
the acquittal of Bhagat Ram regarding the charges under
section 161 of the Indian Penal Code and section 5(1)(a) of
the Prevention of Corruption Act should be maintained;
according to Tyagi J. these charges had not been proved, in
the opinion of Lodha J. they had been. In view of this
difference, the learned Judges passed the following order:
“The result is that the appeal of the State
against the order of acquittal of respondent Ram
Swaroop is dismissed. The appeal of the State so far as
it relates to the acquittal of respondent Bhagat Ram
under sections 347, 218, 389 and 120B Indian Penal Code
is also dismissed. In view of the difference of opinion
about the acquittal of Bhagat Ram under section 161
Indian Penal Code and Section 5(1)(a) of the Prevention
of Corruption Act, the matter may be laid before
Hon’ble the Chief Justice for referring it to the third
Judge.”
Jagat Narayan J., the third Judge to whom the case was
referred, held that Bhagat Ram was guilty of offences under
Section 161 and also sections 120B, 218 and 347 of the
Indian Penal Code. This Court held in Bhagat Ram v. State of
Rajasthan (supra) that it was not permissible for the third
Judge to reopen the matter and convict Bhagat Ram of
offences under sections 120B, 218 and 347 of the Indian
Penal Code because:
“The present was not a case wherein the entire
matter relating to the acquittal or conviction of
Bhagat Ram had been left open because acquittal or
conviction of Bhagat Ram had
584
been left open because of a difference of opinion
between the two Judges. Had that been the position, the
whole case relating to Bhagat Ram could legitimately be
considered by Jagat Narayan, J. and he could have
formed his own view of the matter regarding the
correctness of the order of acquittal made by the trial
Judge in respect of Bhagat Ram. On the contrary, as
mentioned earlier, an express order had been made by
the Division Bench upholding the acquittal of Bhagat
Ram for offences under sections 120B, 218, 347 and 389
IPC and the State appeal in that respect had been
dismissed.”
Clearly the decision in Bhagat Ram’s case turns on the
construction put on the order of the Division Bench
referring “the matter” to the third Judge that he was to
decide only the question on which the two Judges had
differed Bhagat Ram’s acquittal in respect of the offence
under section 161 Indian Penal Code and section 5(1)(a) of
the Prevention of Corruption Act was justified. The scope of
section 429 was not considered in Bhagat Ram’s case, no
question was raised whether the Judges of the Division Bench
could restrict the powers of the third Judge under section
429, nor the notice of the Court appears to have been drawn
to three earlier decisions of this Court on the point. In
Babu and others v. State of Uttar Pradesh(1) a Bench of five
Judges held:
“The section [s. 429] contemplates that it is for
third Judge to decide on what points he shall hear
arguments, if any, and that postulates that he is
completely free in resolving the difference as he
thinks fit”
The next case is Hethubha v. The State of Gujarat(2)
which was decided by a Bench of two Judges. In that case the
Sessions Judge acquitted three accused of the charge under
section 302 read with section 34 Indian Penal Code but
convicted them under section 304 Part II read with section
34. Two of them were also convicted under section 323 and
the third was convicted under section 323 read with section
34. On appeal to High Court one of the two Judges composing
the Division Bench held that it was the first appellant
alone who inflicted the fatal injury on the victim and found
him guilty under section 302, while the second and third
appellants were found guilty under section 324 read with
section 34. The other learned Judge was of the view that all
the accused must be acquitted as, according to him, the
evidence was not satisfactory. The case was then placed
before a third Judge under section 429 of the Code of
585
Criminal Procedure, 1898 who convicted the first appellant
under section 302 of the Indian Penal Code, and the second
and third appellants under section 302 read with section 34.
The conviction of the first and the second appellants under
section 323 and of the third appellant under section 323
read with section 34 was upheld. In appeal to this Court it
was contended that the third Judge under section 429 of the
Code of Criminal Procedure, 1898 could only deal with the
differences between the two Judges and not with the whole
case. Repelling this contention it was held:
“This Court in Babu and Ors. v. State of Uttar
Pradesh(1)-held that it was for the third learned Judge
to decide on what points the arguments would be heard
and therefore he was free to resolve the differences as
he thought fit. Mehta. J. here dealt with the whole
case. Section 429 of the Criminal Procedure Code states
“that when the Judges comprising the Court of Appeal
are equally divided in opinion, the case with their
opinion thereon, shall be laid before another Judge of
the same Court and such Judge, after such hearing, if
any, as he thinks fit, shall deliver his opinion, and
the judgment or order shall follow such opinion”. Two
things are noticeable; first, that the case shall be
laid before another Judge, and, secondly, the judgment
and order will follow the opinion of the third learned
Judge. It is, therefore, manifest that the third
learned Judge can or will deal with the whole case.”
In Union of India and another v. B. N. Ananti
Padmanabiah etc.,(2) which was unreported when Bhagat Ram’s
case was decided, a three Judge Bench of this Court
confirmed the decision in Hethubha’s case. In this case the
accused who were found guilty of offences under sections
5(2) and 5(1)(c) and 5(1)(d) of the Prevention of Corruption
Act, 1947 as well as sections 467 and 471 of the Indian
Penal Code by the Special Judge, Gauhati, challenged the
order of conviction in the High Court of Assam and Nagaland.
On difference of opinion between the two Judges of the
Division Bench of the High Court, the case was referred to a
third Judge. Before the third Judge new plea was advanced
that the Magistrate at Delhi had no jurisdiction to accord
sanction to an Inspector of the Delhi Special Police
Establishment to investigate the case in Assam. The third
Judge held that an order of a magistrate of the local
jurisdiction was necessary, that only a magistrate of the
district where the crime was committed and no magistrate
outside the jurisdiction was competent to make an
586
order for investigation and accordingly the learned Judge
quashed the proceedings before the Special Judge. In appeal
to this Court it was contended that the third Judge could
only deal with the difference between the two Judges and not
with the whole case. This contention was rejected with the
observation:
“This question came up for consideration in the
recent unreported decision in Hethubha & Ors. v. The
State of Gujarat (supra). This Court held that the
third learned Judge could deal with the whole case. The
language of section 429 of the Code of Criminal
Procedure is explicit that the case with the opinion of
the Judges comprising the Court of Appeal shall be laid
before another Judge of the same Court. The other
noticeable feature in section 429 of the Code of
Criminal Procedure is that the judgment or order shall
follow the opinion of the third learned Judge.”
In view of these authorities which were not noticed in
Bhagat Ram’s case we are unable to agree that the learned
third Judge in the instant case to whom it was referred
under section 429 overstepped the limits of his jurisdiction
in deciding the case as he did.
On the merits of the case, we have already indicated
how the learned third Judge viewed the evidence; it cannot
be said that the view taken was unreasonable or perverse.
The appeal is accordingly dismissed.
N.V.K. Appeal dismissed.
587