PETITIONER: THE STATE OF ANDHRA PRADESH Vs. RESPONDENT: THADI NARAYANA DATE OF JUDGMENT: 24/07/1961 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS CITATION: 1962 AIR 240 1962 SCR (2) 904 CITATOR INFO : R 1966 SC1742 (7) RF 1968 SC 653 (9) ACT: Criminal Appeal-Acquittal of some charges and conviction others--Appeal by accused against conviction-Powers of appellate court-If can set aside acquittal also-Code of Criminal Procedure, 1898 (V of 1898), s. 423 (1) (b). HEADNOTE: The accused was tried for offences under s. 302 and s. 392 Indian Penal Code. The Sessions judge acquitted her under s. 302 and s. 392 but convicted her under s. 411 Indian Penal code. The accused appealed to the High Court against her conviction under s. 41 1. The State did not appeal against the acquittal nor did the High Court issue any notice to the accused under s. 439 (2). The High Court set aside the order of conviction under s. 41 1 as well as- the order of acquittal 905 .under s. 302 and s. 392 and ordered a retrial on the original charges. The accused contended that the High Court had no jurisdiction to set aside the order of acquittal and to direct a retrial on the original charges. Held, that while exercising its powers under s. 423 (1) (b) Code of Criminal Procedure in the appeal against the convic- tion under s. 411 Indian Penal Code the High Court had no jurisdiction to set aside the order of acquittal passed in favour of the accused by the Sessions judge in respect of the offences under ss. 302 and 392 Indian Penal Code. Section 423 (1) (b) is confined to appeals against orders of conviction and sentence, and the powers exercisable under it must be restricted to the conviction and sentence. If an order of acquittal is not challenged by an appeal under s. 417 Code of Criminal Procedure and if no action is taken by the High Court under, s. 439 Code of Criminal Procedure the order of acquittal becomes final and cannot be challenged indirectly in an appeal by the accused against the order of conviction and sentence. It is wrong to assume that the whole case is before the High Court when it entertains an appeal against conviction. The power conferred by s. 423 (1) (b) (1) is intended to be exercised in cases falling under ss. 236 to 238 Cr. P. C., and the expression "alter the finding" in s. 423 (1) (b) (2) does not include the power to alter or modify the finding of acquittal. Kishan Singh v. The King-Emperor, (1928) L.R. 55 I.A. 390 and Jayaram Vithoba v. The State of Bombay, (1935) 2 S.C.R. 1049, relied on. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 222 of
1959.
Appeal by special leave from the judgment and order dated
February 24, 1959, of the Andhra Pradesh High Court,
Hyderabad, in Criminal Revision Case No. 636 of 1958.
AND
Criminal Appeal No. 112 of 1961.
Appeal by special leave from the Judgment and order dated
July 15, 1958, of the Andhra Pradesh High Court in Criminal
Appeal No. 237 of 1957.
K.R. Chaudhuri and T. M. Sen, for appellant in Cr. A.
No. 222/59.
P. Ram Reddy, for respondent.
906
P.Ram Reddy, for appellant in Cr. A. No. 112/61.
K.R. Chaudhuri and T. M. Sen, for the respondent.
1961. July 24. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-The short and interesting question which
arises for our decision in the present appeal is in respect
of the powers of the High Court in disposing of appeals
under s. 423(1)(b) of the Code of Criminal Procedure. In
dealing with an appeal preferred by a convicted person
against the order of conviction and sentence imposed on him
by the trial court can the High Court in exercise of its
appellate powers under s. 423(1)(b) reverse the finding of
acquittal recorded by the trial court in favour of the
appellant in respect of an offence which is directly not the
subject-matter of the appeal ? On this question there has
been a difference of opinion amongst our High Courts, and it
appears from reported decisions that in the same High Court
sometimes conflicting views have been expressed on the
point.
This question arises in this way. In the Court of Sessions,
Visakhapatnam Division, the respondent Thadi Narayana was
charged at the instance of the appellant the State of Andhra
Pradesh with having committed offences punishable under s.
302 and s. 392 of the Indian Penal Code. The case against
her was that on December 27, 1956 at about night meal-time
at Gangacholapenta she, committed the murder of a minor girl
K. Sriramulamma by stabbing her with a knife and thus
rendered herself ‘liable to be punished under s. 302. It
was also alleged against her that at the aforesaid time and
place and in the course of the same transaction she had
robbed the said victim of her four pairs of gold Konakammulu
and. a pair of gold Alakalu and thereby committed ‘the
offence of robbery under
907
s. 392. On April 16, 1957 the learned trial judge found
that the charges against the respondent under ss. 302 and
392 had not been proved beyond a reasonable doubt, and so he
acquitted her of the said offences. He, however, held that
the respondent was shown to have committed an offence under
s. 411 and so he convicted her of the said offence and
sentenced her to undergo rigorous imprisonment for a period
of two years.
Against the order of conviction and sentence thus imposed on
her the respondent preferred a jail appeal in the High Court
of Andhra Pradesh. This appeal was heard by Sanjeeva Rao
Naidu, J. By his judgment delivered on July 22, 1958 the
learned judge expressed his conclusion that he, was
satisfied that gross miscarriage of justice had resulted in
the case “and the only way to rectify this is to order the
retrial of the case on the original charges under ss. 302
and 392 of the Indian Penal Code so thatthe accused may
be properly tried thereon and,if found guilty,
convicted for the offence or proved by evidence to have been
committed by her.” In the result the conviction and sentence
of the accused under s. 411 was set aside and the case was
remanded to the trial court for retrial on the charges
already framed against her.
Accordingly when her retrial commenced on November 3, 1958
an application was made on behalf of the respondent before
the trial judge (Criminal M. P. No. 242 of 1958) in which it
was urged that her trial in respect of the offences under
ss.302 and 392 was not permissible having regard to the
order of acquittal which had been passed in her favour at
the original trial. The validity of the plea ofautrefois
acquit thus raised by the respondent was challenged by the
appellant, and it was ‘urged that by virtue of the order
passed by the High Court ordering her retrial the trial
court in law was
908
bound to proceed with the retrial. The trial judge upheld
this contention and observed that he was bound to obey the
directions given by the High Court and if he were to examine
the merits of the contention raised before him by the
respondent he would be transgressing his limits, because the
determination of the point raised by the respondent would
necessarily involve examining the correctness or otherwise
of the High Court’s order directing a retrial. The trial
court thus rejected the application made by the respondent.
Against this order the respondent moved the High Court by
her Criminal Revision Application No. 636 of 1958. The
Criminal Revision Application, as placed before a Full Bench
because it raised two important questions of law. These
questions were thus framed:
(1)Where an accused is tried by a Sessions
Court on charges of murder and robbery, and
the Sessions Court acquits the accused of
those charges and convicts her only of an
offence under section 411 I. P. C. and the
accused appeals to the High Court against the
conviction and sentence but the State
Government does not appeal against the
acquittal of the accused on charges of murder.
and robbery, is it open to the High Court to
set aside the conviction and sentence under
section 411 1. P. C. and order the accused to
be retried on the charges of murder and
robbery ?
(2)When in pursuance of the order of the High
Court the Sessions Court again frames charges
under sections 302 and 392 I. P. C. against
the accused, is it or is it not open to the
accused to plead the statutory bar of
AUTREFOIS ACQUIT’ under section 403 Cr. P.C.?
The answer given by the Full Bench to the first,
909
question is that except in exercise of the revisional powers
under s. 439 of the Code of Criminal Procedure subject to
the limitations prescribed therein it is not open to the
High Court to order a retrial on the charges on which the
accused was acquitted by the trial court in an appeal by the
accused against his conviction, though ‘it is empowered to
reverse the conviction and order a retrial on that charge
alone. On the second question the Full Bench held that it
was open to the accused to plead the bar of autrefois acquit
under s. 403 notwithstanding the order of the High Court
unless there is an adjudication on the acquittal by the High
Court either under s. 423(1) (a) or S. 439 of the Code of
Criminal Procedure. As a result of these answers the revi-
sional application preferred by the respondent was allowed,
her plea under s.403 was upheld and it was ordered that the
retrial of the respondent for the offences under ss.302 and
392 of the Indian Penal Code cannot be proceeded with., This
order was passed on March 11, 1959. It is against this
order that the appellant has come to this Court by special
leave.
The powers of the appellate court in disposing of appeals
are prescribed by s. 423 of the Code. This section occurs
in Chapter XXXI of the Code which deals with appeals,
reference and revision. In the present appeal we ire
concerned with the provisions of s.423(1) (b). However, it
is convenient to read s. 423(1) (a) and (b)
423.(1) The Appellate Court shall then send
for the record of the case, if such record is
not already in Court. After perusing such
record, and hearing the appellant or his plea-
der, if he appears, and the Public Prosecutor,
if he appears, and, in case of an appeal under
section 411A, subjection (2) or section 417,
the accused, if he appears, the Court may, if
it considers that there is no sufficient
ground. for interfering, dismiss the appeal,
or may-
910
(a)in an appeal from an order of acquittal,
reverse such order and direct that further
inquiry be made,, or that the accused be
retried or committed for trial as the case may
be, or find him guilty and pass sentence on
him according to law;
(b)in an appeal from conviction, (1) reverse
the finding and 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, or (2) alter the finding,
maintaining the sentence, or, with or without
altering the finding, reduced the sentence,
or, (3) with or without such reduction and
with or without altering the finding, alter
the nature of the sentence, but, subject to
the provisions of section 106, sub-section
(3),. not so as to enhance the same;
Section 423(1) (a) expressly deals with an appeal from an
order of acquittal and it empowers the Appellate Court to.
reverse the order of acquittal and direct that further
inquiry be made or that the accused may be tried or
committed for trial, as the case may be, or it may find him
guilty and pass sentence on him according to law. In
appreciating the powers conferred on the Appellate Court in
dealing with an appeal against, an order of acquittal it is
necessary to bear in mind that the only forum where an
appeal can be preferred against an original or an
appellate order of ‘acquittal is the High Court, that is to
say the powers conferred on the Appellate Court by s.423(1)
(a) can be exercised only by the High Court and not by Any
other Appellate Court. Under s. 408 the Court of Sessions
is an Appellate Court to which appeals from orders of
conviction passed by an Assistant Sessions Judge,, a
District Magistrate or any other Magistrate lie, and so the
Court of Sessions is An Appellate- Court, but no appeal
against an order of acquittal passed by any
911
of the aforesaid authorities can lie to, the Court of
Sessions. All appeals against acquittal whether passed by
the trial court or the Appellate Court lie only to the High
Court, and so the powers prescribed by s. 423(1) (a) can be
exercised only by the High Court. As we will presently
point out this fact has some bearing on the construction of
the material words used in s. 423(1) (b) (2).
Section 423(1) (b) (1) in terms deals with an appeal from a
conviction, and it empowers the Appellate Court to reverse
the findings and sentence and acquit or discharge the
accused or order a retrial by a Court of competent
jurisdiction subordinate to such Appellate. Court or
committed for trial. In the context it is obvious that the
finding must mean the finding of guilt. The words “the
finding and sentence” are co-related. They indicate that
the finding in question is the cause and the sentence is the
consequence; and so what the Appellate Court is empowered to
reverse is the finding of guilt and consequently the order
as to sentence. There is no.difficulty in holding that s.
423(1) (b) (1) postulates the presence of an order, of
sentence against the accused and it is in that context that
it empowers the Appellate Court to reverse, the finding of
guilt and sentence and then to pass any one of the
appropriate orders: therein specified. In our opinion s.
423 (1) (b) (1) is, therefore, clearly confined to cases of
appeals preferred against orders of conviction and sentence,
and the powers exercisable under it are therefore condition-
ed by the said consideration. It is impossible to accede to
the argument that the powers conferred by this clause can be
exercised for the purpose of reversing an order of acquittal
passed in favour of a party in respect of an offence charged
in dealing with an appeal preferred-by him against the order
of conviction in respect of another offence charged and
found proved. There can thus. be no doubt that the order
passed by Naidu, J. cannot be justified under this clause.
912
At this stage it would be relevant to point out that Naidu,
J. did not purport to proceed under s.439 in dealing with
the respondent’s’ case when the appeal preferred by her
against her conviction was being argued before him. It is
true that the learned judge noticed that the appeal in
question was a jail appeal and the, respondent was not
defended by a lawyer. So he ordered Mr. A. Gangadhara Rao,
an Advocate of’ the Court, to appear amicus curiae to argue
the pea on behalf of the respondent; but, as the Full Bench
has pointed, out, the record clearly shows that neither the
respondent nor her pleader was given notice under s’ 439(2)
of the Code, and even the advocate appointed amicus curiae
did not know much less the respondent herself that the
learned judge intended to exercise his powers under s.439
against the respondent in respect of the offences under
ss.302 and 392 despite the fact that the appellant had not
preferred an appeal against the order of acquittal passed in
favour of the respondent on those grounds. Therefore, it is
unnecessary for us to consider in this appeal the question
about the scope and effect of the provisions of ss.423 and
439 of the Code read together. The only provision under
which the order passed by Naidu J. is seriously sought to be
supported is s.423 (1) (b) (2) and it is to that
provision that we must now turn.
It is urged by Mr. Choudhury on behalf of the
appellant that in construing the expression “alter the
finding” it would be necessary to remember that when the
High Court deals with an appeal against conviction the
proceedings in the Appellate Court are in substance a
continuation of the proceedings in the trial court and so
the entire case is in that sense pending before the
Appellate Court. The argument is that in exercising the
powers conferred on it by s.423 (1)(b)(2) the High Court is
not confined only to the order of conviction which is
directly
913
the subject-matter of the appeal but it is possessed of the
entire proceedings of the case against, the accused and it
is in the light of this fact that the expression “alter the
finding” must be construed. In our opinion, this argument
is not wellfounded. The scheme of s. 423 itself clearly
shows that when appeals against conviction are brought
before the Appellate Court by the convicted person it is
only with the orders of conviction and matters incidental
thereto that fall to be decided by the Appellate Court. An
order of acquittal passed in favour of an accused person can
be challenged by an appeal as provided by s.417 of the,
Code, and s.423(1) (a) therefore expressly deals with the
powers of the High Court in dealing with such appeals
against orders of acquittals. Prima facie,if an order of
acquittal is not challenged by an appeal as contemplated by
s.417 and if no action is taken by the High Court under
s.439 the said order of acquittal becomes final and cannot
be impugned indirectly by the State in resisting an appeal
filed by a convicted person against his conviction. In a
case where several offences are charged against an accused
person the trial is no doubt one; but where the accused
person is acquitted of some offences and convicted of others
the character of the appellate proceedings and their scope
and extent is necessarily determined by the nature of the
appeal preferred before the Appellate Court. If an appeal
is preferred against an order of acquittal by the State and
no appeal is filed by the convicted person. against his
conviction it is only the order of acquittal which falls to
be considered by the Appellate Court and not the order of
conviction. Similarly, if an order of conviction is
challenged by the convicted person but the order of acuittal
is not challenged by the State then it is only the order of
conviction that falls to be considered by the Appellate
Court and not the order of acquittal. Therefore the
assumption that the whole case is before the High Court when
it entertains an appeal against conviction
914
is not well-founded and as such it cannot be pressed into
service in construing the expression “alter the finding”.
In this connection we ought to recall the fact that it is
only the High Court which is authorised to entertain appeals
against acquittal under s.417 of the Code. But the
provisions of s.423 (1) (b) are applicable to all the
Appellate Courts and so the meaning of the expression “alter
the finding” cannot change according as the Appellate Court
is the High Court or the Court of Sessions. It is common
ground that the Court of Sessions which is an Appellate
Court cannot alter the finding of acquittal in pursuance of
the provisions of s.423 (1) (b) (2) but the argument is that
the, High Court can. This argument puts two different
interpretations on the same expression “alter the finding”
and that would not be a proper mode to adopt in construing
the clause. We are, therefore, inclined to bold that just
as the Court of sessions is not entitled to alter the
finding of acquittal in exercising its powers under s. 423
(1) (b) (2) so is the High Court not entitled to do it,. In
other words, the expression “alter the finding” has only one
meaning, and that is alter the finding of conviction and not
the finding of acquittal.
Besides, if the expression “alter the finding” was to
include the power to reverse the finding of acquittal it is
not easy to realise why s. 423 (1) (a) should have been
enacted at all. From the very fact that s. 423 (1) (a)
deals independently with the topic of appeals from orders of
acquittal, it would be reasonable to infer that the
appellate power in respect of the orders of acquittal are
dealt with separately and exclusively under s. 423 (1) (a),
whereas appellate powers to deal with orders of conviction
are dealt with separately and exclusively under s. 423 (1)
(b). The scheme of s. 423, therefore, is inconsistent with
the argument that cl. (2) of S.423 (1) (b) covers orders of
acquittal and empowers the Appellate Court to alter the said
orders.,
915
As a matter of construction the words “”the, finding” in the
expression “alter the finding” must mean the finding of
conviction’ because the clause begins with “in an appeal
from a conviction” and it is obvious that read in the
context of the opening words of the clause “‘the finding”
must mean the finding of conviction and no other. It is
with an appeal from conviction that the’clause deals and it
is the finding of conviction or guilt which it empowers the
Appellate Court to alter. The word “alter” must in the
context be distinguished from the word “reversed”. Whereas,
under s. 423(1)(b)(1) power is conferred on the High Court
to reverse the order of conviction the power conferred on
the Appellate Court by the expression “‘alter the finding”
is merely the power to alter. Reversal of the order implies
its obliteration, whereas alteration would imply no more
than modification and not its obliteration. This
consideration also shows that what- the expression aims at
is the finding of conviction or guilt and not the finding of
acquittal or innocence.
There is yet another consideration which leads to the same
conclusion. Section 423(1)(b)(2) emphatically refers to the
sentence and requires that despite the alteration of the
finding the sentence must be maintained. In other words,
the finding and the sentence go together and the clause
provides that, even if the finding is altered the sentence
may be retained. Similarly, the sentence may be reduced
with or without altering the finding. The reference to the
sentence in both the cases indicates that the finding which
can be altered under the clause is a finding which has led
to the imposition of sentence on the accused person. This
clause would naturally raise the question as to what are the
kinds of cases in which the power can be exercised ? The
answer to this question is furnished by the provisions of
ss. 236, 237 and 238 Section. 236 deals with cases where
917
separately enacted in order to empower the High Court in the
interest of justice to examine the orders of acquittal and
if it is satisfied that in any case, the order of acquittal
needs to be revised the High Court can exercise its power
suo motu. The legislature has therefore deliberately
provided wide powers under s. 439 in the interest of
justice, and so it is very unlikely that the’ legislature
could have intended to confer a similar power on the High
Court under s. 423 (1) (b) (2).
In this connection we ought to deal with another argument
which is sometimes dressed into service in support of the
wider construction of the clause ‘falter the finding”. It
is said that the provisions of s. 439 apply-to cases where
there is a complete and express order of acquittal, whereas
a. 423 (1) (b) (2) covers cases of implied and partial
acquittal. It is also urged that whereas there is a
specific provision made in s. 439 (4) by which the High
Court is precluded from converting a finding of acquittal
into one of conviction there is no such limitation in s.
423. Both these arguments do not appear to us to be well-
founded. In regard, to the argument of implied acquittal
being open to review by the High Court under s.423 (1) (b)
(2) it would be enough to refer to at decision of the Privy
Council where this argument has been rejected. In Kishan
Singh v. The King-Emperor (1) the appellant had been tried
by a Sessions Judge under s. 302 on a charge of murder. He
was convicted under S.304 of culpable homicide not amounting
to murder. This conviction was recorded in the, light of
the provisions of s.238 (2) of the Code,. For the offence
under s.304 he was sentenced to five years’ rigorous impri-
sonment. While convicting the appellant under s. 304 the
trial court did not record a specific order of acquittal for
the offence under s. 302. The State Government did not
appeal but applied for revision on the ground that the
appellant should have been
(1) (1928) 55 I. A. 390.
918
convicted of murder and that the sentence was inadequate.
The High Court thereupon convicted the appellant of murder
and sentenced him to death. This order of conviction and
sentence was successfully challenged by the appellant before
the Privy Council. The Privy Council held that the finding
at the trial ought to be regarded as of acquittal on the
charge of murder and that consequently s. 439 (4) of the
Code precluded the High Court from having jurisdiction upon
revision to convict on that charge. Dealing with the
argument that s. 439 (4) should be confined only to cases
where there is complete acquittal their Lordships thought it
necessary to say that “,if the learned Judges of the High
Court of Madras intended to ‘hold that the prohibition in s.
439, sub s. (4) refers only to cases where the trial has
ended in a complete acquittal of the accused in respect of
all charges or offences, and not to a case such as the
present, where the accused has been acquitted of the charge
of murder, but convicted of the minor offence of culpable
homicide not amounting to murder, their Lordships are unable
to agree with that part of their decision. The words of
the sub-section are clear and there can be no doubt as to
their meaning. There is no justification for the
qualification which the learned Judges attached to the sub-
section.” It would thus be clear that any attempt to confine
the operation of s. 439 (4) to cases of the so-called
complete acquittal cannot be entertained; and so it would be
idle to suggest that s. 423 (1) (b) (2) covers cases of
implied or partial acquittal a s. 439 deals with cases of
express and complete acquittal.’ In setting aside the order
of conviction for the offence of murder imposed….by the
High Court on the appellant the Privy Council observed that
the High Court had acted without jurisdiction and so it
could not accept the plea that no prejudice had thereby been
caused to the appellant,. This case, therefore, clearly
establishes Chat in exercising the powers conferred on it by
s. 423 (1) (b) the
919
High Court cannot convert acquittal into conviction that can
be done only by adopting the procedure prescribed in s. 439
of the Code.
Then, as to the argument based on the specific, provision
contained in s. 439(4) it is obvious that no such limitation
could have been prescribed in regard to the provisions of s.
423 (1)(b) for the reason that the orders of acquittal are
outside the purview of that clause. Therefore, it would be
unreasonable to suggest that because there is no limitation
on the power of the High Court as there is in s. 439(4) the
High Court can, in dealing with an appeal against
conviction, alter the finding of acuittal recorded at the
Trial in favour of the accused person. We must accordingly
bold that the Full Bench of the Andhra High Court was right
in coming to the conclusion that Naidu, J. acted without
jurisdiction in altering the finding and order of acquittal
passed in favour of the respondent in respect of the
offences under ss. 302 and 392 when he, was dealing with the
appeal preferred by the respondent against her conviction
under s. 41 1.
In this connection we way incidentally refer to the
observations made by Venkatarama Ayyar, J., who spoke for
the Court, in Jayaram Vithoba v. The State of Bombay. (1) In
dealing with the contention of the accused that the Court
had no power under s.423 (1) (b) of the Code of Criminal
Procedure to award a sentence under s. 148 in a case the
accused was charged under ss. 324 and 148 of the Indian
Penal Code., the High Court had observed that they had ample
power to transpose the sentence so long as the transposition
does not amount to enhancement, and this observation raised
a question about the construction of s. 423 (1)(b). Dealing
with the said question, Venkatararia Ayyar, J. observed
there is nothing about
(1) (1955) 2 S C. R. 1049.
920
the transposition of the sentence under s. 423 (1)(b). It
only provides for altering the finding and maintaining the
sentence, and that can apply only to cases where the finding
of guilt under one section is altered to a finding of guilt
under another. The section makes a clear distinction
between a reversal of a finding and its alteration”. These
observations seem to take the same view of the scope and
effect of the provisions of s. 423(1)(b) as we are inclined
to do.
As we have already indicated at the commencement of this
judgment;, on the question raised for our decision in the
present appeal there has been conflict of judicial opinion.
We do not, however, propose to consider the several
decisions to which our attention was drawn because, in our
opinion, no useful purpose would be served by examining the
facts in all those cases and subjecting to scrutiny the
reasons adopted for arriving at different conclusions. We
would, therefore, content ourselves with the broad statement
that respondent has relied upon the decisions in Indra Kumar
Nath v. The State (1). The State v. Amlesh Chandra Ray. (
2), Fulo v. State (3) (Full Bench), and Taj Khan v. Rex (4)
(Ful Bench), whereas the appellant has relied upon the
decisions in Krishna Dhan Mandal v. Queen-Empress (5),
Queen-Empress v. Jabanulla (6),
(1) A. I. R. (1954) Cal. 375. (2) r. L.R. (1953)1 Cal.302.
(3) (1956) I. L.R. 35 Pat. 144. (4) A. I. R. 1932 All. 369.
(5) (1895) I.L.R. 22 Cal. 377. (6) 1896 I.L.R. 23 Cal. 975.
921
In Re Illuru Lakshmaih, (1) Golla Hanumappa v. Emperor,’ (2)
Re K. Bali Reddi, (3) In Re Rangiah, (4) Baua Singh v. The
Crown (5) (Full Bench) and the majority judgment in Emperor
v. Zamir Qasim (6) The minority view expressed by Mulla J.
in Emperor v. Zamir Qasim(6) contain a careful and
exhaustive discussion of the topic and the respondent has
strongly relied upon it.
There is one more point which still remains to be considered
and that is the subject-matter of the second issue referred
to the Full Bench. It is urged before us by Mr. Choudhury
on behalf of the State that the Full Bench itself has acted
in excess of jurisdiction in entertaining the plea. arised
by the respondent under s. 403, because he contends that the
judgment delivered by Naidu J. could not be revised by the
High Court having regard to the provisions of s. 369 of the
Code. We have already mentioned that this question has also
been answered in favour of respondent by the Full Bench.
The judgment of the Full, Bench does not show that the
effect of the provisions of s. 369 was argued before it. In
substance, however, the Full Bench has held that the. order
passed by Naidu J. is outside the authority conferred on the
High Court under s. 423 (1)(b)(2) and as such can be treated
to be without jurisdiction and therefor e a. nullity. We do
not propose to decide this point in the present appeal,
because we have, allowed 1 A. I. R. 1952 Mad. 101.
(2)(1912) I.L.R.35 Mad. 243.
(3) 1914 I. L. R. 37 Mad. 119. (4) A. I. R, 1954 Mys. 122.
(5) (1942) I.L.R. 23 Lah. 129 (6) I.L.R. (1944) All. 403.
922
Mr. Rama Reddy, who appeared for the’respondent at our
instance, to make an application for special leave against
the order passed by Naidu J. Accordingly Mr. Rama Reddy has
made an application, Special Leave Petition (Criminal) No.
476 of 1961, for special leave and has prayed-for excuse of
delay made in filing it. Having regard to the very unusual
circumstances in which the present application has been made
we feel no difficulty in condoning the delay made by the
respondent in filing her application for special leave and
granting her special leave to appeal against the order in
question. In fairness we ought to add that Mr. Choudhury
did not resist the respondent’s prayer for excuse of delay
in the present case. Since we are now possessed of an
appeal, Criminal Appeal No. 112 of 1961, filed by special
leave against the judgment and order of Naidu J. the
question as to whether the Full Bench could have considered
the validity of the said judgment and order has become a
matter of academic importance. There can be no doubt that
in. the appeal preferred by the respondent against the said
order it is certainly open to her to challenge its validity,
and as we have come to the conclusion that the order passed
by Naidu T. is with out jurisdiction we have no difficulty
in allowing the respondent’s appeal and setting aside the,
said order.
In the result Criminal Appeal No. 112 of 1961
preferred by the respondent Thadi Narayana’is
allowed and the High”Court’s order passed in
Criminal Appeal No. 237 of
923
1957 by which case against her had been sent
back for retrial on the original charges
against her under ss. 302 and 392 of the
Indian Penal Code is set aside. The conse-
quence of this decision is that the order of
acquittal passed in her favour by the trial
court ill respect of the said offences is re-
stored. The State has not preferred any
appeal against the High Court’s decision in
Criminal Appeal No. 237 of 1957 where by the
conviction of Thadi Narayana in respect of the
offence under s. 411 and sentence imposed on
her in that behalf have been set aside while
ordering her retrial for the major offences
under ss. 302 and 392 of the Indian Penal Code
; and so this latter order of acquittal in
respect of S. 411 will stand. In the circum-
stances of this case this result cannot, be
avoided. Criminal Appeal No. 222 of 1959
preferred by the State against the decision of
‘the Full Bench therefore fails and is
dismissed.
Criminal Appeal No. 11 2 of 1961 allowed.
Criminal Appeal No. 222 of 1959 dismissed
924