{"id":153720,"date":"1982-04-05T00:00:00","date_gmt":"1982-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hanumant-dass-vs-vinay-kumar-ors-on-5-april-1982"},"modified":"2016-06-16T03:28:38","modified_gmt":"2016-06-15T21:58:38","slug":"hanumant-dass-vs-vinay-kumar-ors-on-5-april-1982","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hanumant-dass-vs-vinay-kumar-ors-on-5-april-1982","title":{"rendered":"Hanumant Dass vs Vinay Kumar & Ors on 5 April, 1982"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hanumant Dass vs Vinay Kumar & Ors on 5 April, 1982<\/div>\n
Equivalent citations: 1982 AIR 1052, \t\t 1982 SCR (3) 595<\/div>\n
Author: R Misra<\/div>\n
Bench: Misra, R.B. (J)<\/div>\n
           PETITIONER:\nHANUMANT DASS\n\n\tVs.\n\nRESPONDENT:\nVINAY KUMAR & ORS.\n\nDATE OF JUDGMENT05\/04\/1982\n\nBENCH:\nMISRA, R.B. (J)\nBENCH:\nMISRA, R.B. (J)\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1982 AIR 1052\t\t  1982 SCR  (3) 595\n 1982 SCC  (2) 177\t  1982 SCALE  (1)310\n\n\nACT:\n     Party  to\t an  appeal   against  conviction\/acquittal-\nNecessary party-occurrence  of offence\ttaking place  in the\nterritorial limits  of one  State, but the trial takes place\nin another  State, pursuant  to an  order of transfer by the\nSupreme Court-In  the appeal  by the accused before the High\nCourt,\twhich\tis  the\t necessary  party  respondent-Public\nProsecutor of  the State  where the offence took place or of\nthe State  where  the  trial  took  place-Code\tof  Criminal\nProcedure, 1973,  sections  2(4),  24,\t224,  378,  385\t and\n432(7), scope of.\n     Records, summoning\t of-Whether non-summoning of records\nvitiates the  order in\tappeal, Code  of Criminal Procedure,\n1973 section 385(2), explained-Setting aside of the judgment\nis not\tpossible  unless  the  ingredients  of\tsection\t 465\nCriminal Procedure Code are satisfied.\n\n\n\nHEADNOTE:\n     Vinay Kumar,  the husband\tof the deceased Asha and his\nmother Chhano  Devi were  charged, convicted for the offence\nof  burning   alive  the  deceased  and\t sentenced  to\tlife\nimprisonment on\t a complaint  by Hanumant Dass the father of\nthe deceased and the appellant in Criminal Appeal 45 of 1982\nby the\tSessions Judge\tGurdaspur, Punjab.  The\t offence  is\nalleged to have been committed within the territorial limits\nof the\tState of  Himachal Pradesh, but on an application of\nthe complainant\t the case was transferred by an order of the\nSupreme Court  inasmuch as  the accused were the brother-in-\nlaw and\t mother-in-law of  a Judge  of\tthe  High  Court  of\nHimachal Pradesh. In appeal by tho accused the High Court of\nPunjab issued,\ton 22-6-1981,  notice for  6-7-1981  to\t the\nAdvocate General  of Punjab  only and on that date heard the\nappeal and  acquitted both  the accused. Hence the appeal by\nthe complainant\t and the  special  leave  by  the  State  of\nHimachal Pradesh.\n     Dismissing the  appeal and\t the Special Leave Petition,\nthe Court,\n^\n     HELD: 1.  The charge  levelled against  the High  Court\nthat it\t was in\t a hot\thaste to  decide the  appeal at\t the\nearliest possible  is incorrect\t in view  of the order dated\n22-6-1981 passed by the High Court of Punjab. [600 B]\n     2:1. Section 385 of the Code of Criminal Procedure is a\nmandatory provision  and the requirement of the section must\nbe satisfied.  In the  appeal before tho High Court State of\nPunjab was  made a  party and  notice of the appeal was also\ngiven to the Advocate General of Punjab. From sections 2(4),\n24, 225,  378 and  432 it  is evident  that there shall be a\nPublic Prosecutor  for conducting  any prosecution appeal or\nother proceeding on behalf of the Central\n596\nGovernment or  State Government in the High Court. If notice\nhas  been  given  to  the  Public  Prosecutor,\tnamely,\t the\nAdvocate-General of  Punjab the\t requirement of law has been\nfulfilled. [601 B-C, 603 C-D]\n     2:2. Section 432 of the Criminal Procedure Code defines\n\"appropriate Government\"  as meaning  (a) in cases where the\nsentence is for an offence against, or the order referred to\nin sub-section\t(6) is\tpassed under  any law  relating to a\nmatter to  which the  executive power  of the Union extends,\nthe Central  Government; (b)  in other cases, the Government\nof the\tState within  which the offender is sentenced or the\nsaid  order   is  passed.  According  to  this\tsection\t the\nappropriate Government\tis the\tGovernment of  the State  of\nconviction and\tnot the\t Government of\tthe State  where the\noffence was committed. [603 C-D]\n     State of  Madhya Pradesh  v. Ratan\t Sing & Ors.,<\/a> [1976]\nSupp. S.C.R. 552, applied.\n     3. To  contend that  the High  Court  disposed  of\t the\nappeal even  without summoning\tthe record  is incorrect. No\nspecific allegation  has been  made  in\t the  Special  Leave\nPetition that  the record was not summoned. The tenor of the\njudgment of  the High  Court indicates\tthat the record must\nhave been  there before\t the High  Court. There\t is  copious\nreference to  the materials  on the  record which  could  be\npossible only  when the\t record was  there before the court.\nBesides, the  counsel for  the appellant  made\ta  statement\nbefore the court that on the finding of fact recorded by the\nHigh Court  he was entitled to an acquittal and in this view\nof the\tmatter even if the record had not been summoned that\nwould not  be fatal.  Further proviso  to sub-section (2) of\nsection 385 itself provides \"...the court may dispose of the\nappeal\twithout\t sending  for  the  record,\"  in  a  certain\nsituation. The\trigour of  sub-section (2)  of section\t385,\nwhich provides that \"the Appellate Court shall then send for\nthe record  of the  case....\" has  been taken  away  by\t the\nproviso in  a certain  situation. If  the appellant  himself\nsays that the appeal can be allowed on the findings recorded\nby the\tSessions Judge,\t the non-summoning of the record, if\nit was\tat all\tso, would  not be fatal. The complainant was\npresent with  his counsel,  the State  Advocate-General\t was\nalso present.  If there\t had been  any grievance  about\t the\nrecord, they  would have  raised an  objection.\t Their\tnon-\nobjection on this point is also an indicator that the record\nwas there  or in  any case,  the summoning of the record was\nnot thought  to be  necessary by  the parties. [604 E-H, 605\nA-B]\n     4. On  merits also\t there is no case for the appellants\nsince  each   and  every  aspect  of  the  matter  has\tbeen\nthoroughly discussed by the High Court which has referred to\nthe error committed by the Sessions Judge in the approach of\nthe case  and also  in making unwarranted assumptions. There\nis no  eye witness.  The fate  of the  case hinges  upon the\ncircumstantial evidence.  The High  Court has dealt with the\ntwo dying  declarations, one  recorded by the Doctor and the\nother by  the Assistant\t Sub-Inspector. The  High Court also\ntook into  consideration the oral dying declaration on which\nthe prosecution\t strongly relied.  But even that declaration\ndoes not implicate the accused. [605 G-H, 606 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45
\nof 1982.\n<\/p>\n
597<\/span><\/p>\n
     From the Judgment and Order dated the 9th July, 1981 of
\nthe Punjab  and Haryana High Court at Chandigarh in Criminal
\nAppeal No. 333-DB of 1981,
\n\t\t\t    AND
\n     S.L.P. (Crl.) No. 2948 of 1982.\n<\/p>\n
     R.L. Kohli and R. C. Kohli for the Appellants.
\n     T.U. Mehta and A.G. Ratnaparkhi for Respondent No. 1.
\n     N.C. Talukdar and R.N. Poddar for Respondent No. 3.
\n     N.C. Talukdar  and R.N.  Poddar for  the Petitioner  in
\nS.L.P. (Crl.) No. 2498\/81.\n<\/p>\n
     D. D. Sharma for the State.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     MISRA, J.\tThe appeal  as well  as\t the  special  leave
\npetition are directed against the judgment of the High Court
\nof Punjab  and Haryana\tat Chandigarh  dated 9th July, 1981.
\nCriminal appeal\t has been filed by the complainant while the
\nspecial leave  petition has  been  filed  by  the  State  of
\nHimachal Pradesh.  Vinay Kumar\tand his\t mother Chhano\tDevi
\nwere convicted\tfor the\t murder of  Asha, the  wife of Vinay
\nKumar  by   burning  her   alive  and\tsentenced  to\tlife
\nimprisonment by\t the learned  Sessions Judge,  Gurdaspur. On
\nappeal by  the accused, the High Court acquitted them by the
\nimpugned judgment.\n<\/p>\n
     The prosecution  case set\tup at the trial was that the
\ndeceased Asha  was married  with Vinay\tKumar in July, 1972.
\nThe marriage  was an  arranged marriage. It did not prove to
\nbe a success, the apparent cause for the failure of marriage
\nwas that Asha was only a matriculate and not cultured enough
\nto move\t about in  the society\twith the husband. To make up
\nthis deficiency\t the deceased  again resumed her studies and
\nstarted\t attending   college  at   Nagrota  Bhagwan.   While
\nprosecuting her\t studies she  was  rebuked  and\t abused\t and
\nsometimes even\tthrashed, whenever  she visited the house of
\nher-in-laws. She however, kept on suffering in the vain hope
\nthat in\t due course of time things might improve. There was,
\nhowever,  no   improvement  and\t she  was  fed-up  with\t the
\nmaltreatment and
\n598<\/span>
\ncruelty meted  out to her in the in-laws house. She left the
\nmatrimonial  home   and\t started  living  with\ther  parents
\nsometime in the year 1975 or early 1976.\n<\/p>\n
     In 1977  Vinay Kumar  filed a  petition in the court of
\nthe District  Judge, Kangra  at Dharamshala under section 13
\nof the\tHindu  Marriage\t Act  for  the\tdissolution  of\t his
\nmarriage with  the deceased on various grounds including one
\nof desertion. The District Judge in the first instance tried
\nfor reconciliation  between the\t spouse and  as\t an  interim
\narrangement Asha  returned to her-in-laws house in June 1978
\non trial  basis, while divorce petition was kept pending and
\nadjourned to July 29, 1978. As the parties did not appear in
\nthe Court  on the date fixed, it was presumed that they were
\nliving\thappily\t  and  the   proceedings  were,\t  therefore,
\nconsigned to the record.\n<\/p>\n
     On 5th  of August,\t 1978 at  about 11  a.m. Kanwal Nain
\nP.W. 4,\t Bil Bhandur  P.W. 14,\temployee of the Post office,
\nwhich was  just in  front of  the house\t of the accused at a
\ndistance of  10\/12 feet,  and a\t number of other persons saw
\nsmoke coming  out of the window of the house of the accused.
\nWhen Bil  Bhandur and  others went  to the house, they found
\nthe outer  door locked.\t There was no other means of ingress
\nto the\thouse. After  a short  while one Raj brought the key
\nfrom Chhano  Devi accused with which the lock was opened and
\nentry gained  into the\thouse. Asha  was found\tburning\t and
\nafter extinguishing  the fire,\tshe was removed to the local
\nhospital.\n<\/p>\n
     Dr. O.  P. Dutta attended her and sent an intimation of
\nthe incident  to the Incharge local Police Post. He recorded
\nthe statement  of Asha\ton the out-patient register 13x. PL.
\nMeanwhile  Kesar  Singh,  Assistant  Sub-Inspector,  arrived
\nthere an  d after  getting a  certificate from Dr. Dutta, he
\nalso recorded  her statement  Ex. PU.  From Civil  Hospital,
\nKangra Asha  was removed  in a\ttruck to a Civil Hospital in
\nDharamshala (H.P.) where she breathed her last.\n<\/p>\n
     In her  statements recorded  by  Dr.  Dutta  and  Kesar
\nSingh, the  deceased disclosed that her clothes caught fire,
\nwhile she  was preparing  tea. The  police suspected no foul
\nplay and  did not  register any\t case.\tThe  father  of\t the
\ndeceased Hanumant  Dass,  however,  made  a  report  on\t 7th
\nAugust, 1978  and a  case was  registered on that basis. The
\naccused were sent up for trial. When the case was pending in
\nthe  Court   of\t Sessions  Judge,  Dharamshala\tin  Himachal
\nPradesh, the complainant moved an application to the
\n599<\/span>
\nSupreme Court for transfer of the case from Himachal Pradesh
\nto some\t other province. The case was transferred to a Court
\nof  competent  jurisdiction  at\t Gurdaspur  in\tPunjab.\t The
\nSessions Judge,\t Gurdaspur convicted  both the accused under
\nsection 302  read with\tsection 34  of the Indian Penal Code
\nand sentenced them to life imprisonment. This conviction was
\nbased only  on the  circumstantial evidence. Accused went up
\nin appeal  to the High Court. The High Court in its turn set
\naside the  order of  conviction and acquitted the accused of
\nthe charge.\n<\/p>\n
     The complainant  has filed\t the  present  appeal.\tShri
\nKohli  appearing   for\tthe   complainant  has\t strenuously
\ncontended that\tthe appeal  before the\tHigh Court  has been
\nallowed in  the absence of the State of Himachal Pradesh and
\nwithout any  notice to\tthat State  and as such the impugned
\njudgment of  the High  Court is\t a nullity and should be set
\naside on  that ground  alone. The accused had impleaded only
\nthe State of Punjab as a party and the High Court has issued
\nnotice to  the Advocate-General\t of Punjab. As a second limb
\nto this\t argument it  has been\tcontended by Shri Kohli that
\nthe appeal  was filed  in the  High Court on 15th June, 1981
\nand while  considering the  application for  bail on 22nd of
\nJune, 1981,  posted the\t appeal for  hearing on 6th of July,
\n1981 after  service of\tnotice on  the\tAdvocate-General  of
\nPunjab and  the appeal was decided on 9th July, 1981 without
\neven summoning\tthe record. Thus the High Court was in a hot
\nhaste to  dispose of  the  appeal  even\t without  reasonable
\nopportunity being  afforded to the counsel for the State and
\nwithout impleading  the appropriate  State as a party to the
\nappeal and  without notice  to the  counsel for the State of
\nHimachal Pradesh.\n<\/p>\n
     We may  first deal\t with the  criticism of\t the learned
\ncounsel about  the undue haste in the disposal of the appeal
\nby the\tHigh Court.  It\t appears  that\tShri  M.R.  Mahajan,
\ncounsel for  the appellants while moving the application for
\nbail made a statement before the High Court and it is on his
\nstatement that\tthe case  was  posted  for  hearing  at\t the
\nearliest possible.  This will  be apparent  from  the  order
\ndated 22.6.1981\t passed by the High Court while disposing of
\nthe application\t for  bail.  The  order\t insofar  as  it  is
\nmaterial for consideration of the point reads:\n<\/p>\n
\t  “.. Mr.  Mahajan,  Advocate  states  that  on\t the
\n     findings of  fact recorded\t by the learned trial Judge,
\n     the conviction  of the  appellants cannot be sustained.
\n     Notice for 6.7.81.\n<\/p><\/blockquote>\n
600<\/span><\/p>\n
     to the Advocate-General, Punjab. Copy of the grounds of
\n     appeal and\t the judgment  rendered by the learned trial
\n     Judge be  delivered in  the office\t of the A. C. Punjab
\n     within two\t days, The  case is likely to be disposed of
\n     on that date … … ”\n<\/p><\/blockquote>\n
Therefore, the\tcharge levelled\t against the High Court that
\nit was\tin a  hot haste to decide the appeal at the earliest
\npossible appears to be uncalled for.\n<\/p>\n
     This leads\t us to\tthe main  contention raised  by Shri
\nKohli that  the transfer  of the case from Dharamshala lying
\nwithin the  territorial jurisdiction  of the  High Court  of
\nHimachal Pradesh  to Gurdaspur Lying within the jurisdiction
\nof the\tPunjab and  Haryana High  Court, does not change the
\nparties and  the parties  remain the  same  even  after\t the
\ntransfer of  the case from Dharamshala to Gurdaspur. In this
\nview of\t the legal  position, the  State of Himachal Pradesh
\nwhere the  offence was\tcommitted was  a necessary party and
\nshould have  been impleaded in appeal. In the absence of the
\nState of  Himachal Pradesh  as a party and in the absence of
\nnotice to the counsel for the State of Himachal Pradesh, the
\nHigh Court  was not justified in disposing of the appeal and
\nits judgment is only a nullity.\n<\/p>\n
     This contention  is based on section 385 of the Code of
\nCriminal Procedure.  Insofar  as  it  is  material  for\t the
\npurpose of the case it reads :\n<\/p>\n
\t  “385(1): If  the Appellate  Court does not dismiss
\n     the appeal summarily, it shall cause notice of the time
\n     and place\tat which  such appeal  will be\theard to  be
\n     given-\n<\/p><\/blockquote>\n
     (i)  to the appellant or his pleader;\n<\/p><\/blockquote>\n
     (ii) to  such  officer  as\t the  State  Government\t may
\n\t  appoint in this behalf;\n<\/p><\/blockquote>\n
     (iii) if the appeal is from a judgment of conviction in
\n\t  case\t instituted    upon   complaint,    to\t the
\n\t  complainant;\n<\/p><\/blockquote>\n
     (iv) if the appeal is under section 377 or section 378,
\n\t  to  the  accused,  and  shall\t also  furnish\tsuch
\n\t  officer, complainant\tand accused  with a  copy of
\n\t  the grounds of appeal.\n<\/p><\/blockquote>\n
601<\/span><\/p>\n
     (2)  The Appellate Court shall then send for the record
\n\t  of  the  case,  if  such  record  is\tnot  already
\n\t  available in that Court, and hear the parties:
\n\t  Provided that\t if the\t appeal is  only as  to\t the
\n     extent or\tthe legality  of the sentence, the Court may
\n     dispose of the appeal without sending for the record.
\n     (3) ………………………..\n<\/p><\/blockquote>\n
There is no denying the fact that section 385 of the Code is
\na mandatory  provision and  the requirement  of the  section
\nmust be\t satisfied. In\tthe appeal  before the\tHigh  Court,
\nState of  Punjab was made a party and notice . Of the appeal
\nwas also  given to the Advocate-General of Punjab. According
\nto Shri Kohli this does not satisfy the requirement of law.\n<\/p>\n
     It would be appropriate at this stage to refer to other
\nrelevant provisions of the Code:\n<\/p>\n
\t  Section 225 provides that-“In every trial before a
\n     Court of Session, the prosecution shall be conducted by
\n     a Public Prosecutor.”\n<\/p><\/blockquote>\n
\t  Section  2(4)\t defines  public  prosecutor-“Public
\n     Prosecutor means any person appointed under section 24,
\n     and includes any person acting under the direction of a
\n     public prosecutor.”\n<\/p><\/blockquote>\n
Section 24  deals  with\t “Public  Prosecutors  in  the\tHigh
\nCourt”:\n<\/p>\n
\t  “24. Public Prosecutors:-(I) For every High Court,
\n     the Central  Government or\t the State Government shall,
\n     after consultation\t with  the  High  Court,  appoint  a
\n     Public Prosecutor\tand may\t also appoint  one  or\tmore
\n     Additional Public\tProsecutors, for  conducting in such
\n     Court, any\t prosecution, appeal  or other proceeding on
\n     behalf of\tthe Central  Government or State Government,
\n     as the case may be.\n<\/p><\/blockquote>\n
     ………………………………\n<\/p><\/blockquote>\n
Section 378 talks of an appeal in case of acquittal. Insofar
\nas it is material it reads thus:\n<\/p>\n
\t  “378(1) Save\tas otherwise provided in sub-section
\n     (2) and  subject to  the provisions of sub-sections (3)
\n     and (5)
\n602<\/span>
\n     the State\tGovernment may,\t in  any  case,\t direct\t the
\n     Public Prosecutor\tto present  an appeal  to  the\tHigh
\n     Court from\t an original or appellate order of acquittal
\n     passed by\tany Court  other than  a High  Court, (or an
\n     order of  acquittal passed\t by the\t Court of Session in
\n     revision).\n<\/p><\/blockquote>\n
\t  (2) If such an order of acquittal is passed in any
\n     case in  which the offence has been investigated by the
\n     Delhi Special  Police Establishment  constituted  under
\n     the Delhi Special Police Establishment Act, 1946, or by
\n     any other\tagency empowered  to make investigation into
\n     an offence\t under any Central Act other than this Code,
\n     the Central  Government  may  also\t direct\t the  Public
\n     Prosecutor\t to   present  an  appeal,  subject  to\t the
\n     provisions of  sub-sec. (3)  to the High Court from the
\n     order of acquittal.\n<\/p><\/blockquote>\n
     ………………………\n<\/p><\/blockquote>\n
Section 432 authorises the appropriate Government to suspend
\nor remit sentences.\n<\/p>\n
\t  “432(1): When\t any person  has been  sentenced  to
\n     punishment for  an offence,  the appropriate Government
\n     may, at  any  time,  without  conditions  or  upon\t any
\n     conditions which  the person sentenced accepts, suspend
\n     the execution of his sentence or remit the whole or any
\n     part of the punishment to which he has been sentenced.
\n\t  (2)  Whenever\t  an  application  is  made  to\t the
\n     appropriate Government for the suspension for remission
\n     of a  sentence, the  appropriate Government may require
\n     the presiding Judge of the Court before or by which the
\n     conviction was  had or  confirmed, to state his opinion
\n     as to  whether the\t application should  be\t granted  or
\n     refused, together with his reasons for such opinion
\n     (3) . . .. … (4)…….. (s)
\n\t  (6) The provisions of the above sub-sections shall
\n     also apply\t to any\t order passed  by a  Criminal  Court
\n     under any\tsection of  this Code  or of  any other\t law
\n     which restricts  the liberty  of any  person or imposes
\n     any liability upon him or his property,
\n603<\/span>
\n\t  (7) In  this\tsection\t and  in  section  433,\t the
\n     expression “appropriate Government” means-\n<\/p><\/blockquote>\n
\t  (a)  in cases where the sentence is for an offence
\n\t       against, or  the order  referred to  in\tsub-
\n\t       section (6) is passed under, any law relating
\n\t       to a  matter to\twhich the executive power of
\n\t       the Union extends, the Central Government;\n<\/p><\/blockquote>\n
\t  (b)  in other\t cases, the  Government of the State
\n\t       within which the offender is sentenced or the
\n\t       said order is passed.\n<\/p><\/blockquote>\n
From the  various provisions  extracted above  it is evident
\nthat there  shall be  a Public Prosecutor for conducting any
\nprosecution appeal  or other  proceeding on  behalf  of\t the
\nCentral Government  or State . Government in the High Court.
\nIf notice  has been  given to the Public Prosecutor viz. the
\nAdvocate-General of  Punjab the\t requirement of\t law to\t our
\nmind has been fulfilled.\n<\/p>\n
     Shri Kohli,  however, contends  that occurrence  in the
\ninstant case  took place  within the  territorial limits  of
\nHimachal Pradesh. That State, therefore, will continue to be
\na necessary  party in  the appeal  irrespective of  the fact
\nthat the appeal was filed in the Punjab High Court.\n<\/p>\n
     Section 432(7)  extracted\tabove  defines\t“appropriate
\nGovernment”. “Appropriate  Government”\tmeans-(a)  in  cases
\nwhere the  sentence is\tfor an offence against, or the order
\nreferred to  in subsection  (6)\t is  passed  under  any\t law
\nrelating to  a matter  to which\t the executive\tpower of the
\nUnion extends,\tthe Central  Government; (b) in other cases,
\nthe Government\tof the\tState within  which the\t offender is
\nsentenced or the said order is passed.\n<\/p>\n
     According to this section the appropriate Government is
\nthe Government\tof the\tState  of  conviction  and  not\t the
\nGovernment of  the State  where the offence was committed. A
\nsomewhat similar  question came\t up for consideration in the
\nState of  Madhya Pradesh v. Ratan Singh & Ors.,<\/a>(1) where the
\nrespondent was\tconvicted and  sentenced to imprisonment for
\nlife by\t a court  in the  State of  Madhya Pradesh.  At\t his
\nrequest he was transferred o a Jail in the State H
\n604<\/span>
\nof Punjab,  to which  State he\tbelonged. He  applied to the
\nGovernment of Punjab that under the Punjab Jail Manual he is
\nentitled to  be released since he had completed more than 20
\nyears of  imprisonment. The  application  was  sent  to\t the
\nGovernment of  Madhya Pradesh,\twhich rejected it. In a Writ
\npetition filed\tby him\tthe High Court of Punjab and Haryana
\nheld that  the State of Punjab was the appropriate authority
\nto release  him and directed the State of Punjab to consider
\nthe matter. This Court in appeal observed “a perusal of this
\nprovision clearly  reveals that\t the test  to determine\t the
\nappropriate Government\tis to  locate the  State  where\t the
\naccused was  convicted and  sentenced and  the Government of
\nthat State  would be  the appropriate  Government within the
\nmeaning of  sec. 401 of the Code of Criminal Procedure. Thus
\nsince the prisoner in The instant case, was tried, convicted
\nand sentenced  in the  State of Madhya Pradesh, the State of
\nMadhya Pradesh\twould  be  the\tappropriate  Government.  to
\nexercise the  discretion for remission of the sentence under
\nsec. 401(1)  of the  Code of  Criminal Procedure…. .” That
\nwas a  case  based  on\tsection\t 401  of  the  old  Criminal
\nProcedure Code, but the Code of Criminal Procedure, 1973 has
\nput  the   matter  completely  beyond  any  controversy\t and
\nreiterated the\tprovisions of  section 402(3) in sub-section
\n(7) of section 432,
\n     Lastly it was contended that the appeal was disposed of
\nby the\tHigh Court  even without summoning the record. There
\nis no  warrant for  this assumption.  No specific allegation
\nhas been  made in the special leave petition that the record
\nwas not\t summoned. We  have perused the Judgment of the High
\nCourt and  the tenor  of the  judgment\tindicates  that\t the
\nrecord must  have been\tthere before  the  court.  There  is
\ncopious reference to the materials on the record which could
\nbe possible only when the record was there before the court.
\nBesides, .  the counsel\t for the  appellant made a statement
\nbefore the court that on the finding of fact recorded by the
\nHigh Court  he was entitled to an acquittal and in this view
\nof the\tmatter even if the record had not been summoned (for
\nwhich there is no basis) that would not be fatal, Proviso to
\nsub section (2) of section 385 itself provides “…the court
\nmay dispose  of the  appeal without sending for the record.”
\nin a certain situation. The rigour of subsection (2) of sec.
\n385, which  provides that  “the Appellate  Court shall\tthen
\nsend for  the record  of the case…” has been taken away by
\nthe proviso in a certain situation. If the appellant himself
\nsays that the appeal can be allowed on the findings recorded
\nby the\tSessions Judge,\t the non-summoning of the record, if
\nit was at all so,
\n605<\/span>
\nwould not  to our mind be fatal. The complainant was present
\nwith  his  counsel,  the  State\t Advocate-General  was\talso
\npresent. If  there had\tbeen any grievance about the record,
\nthey would  have raised an objection. Their non-objection on
\nthis point is also an indicator that the record was there or
\nin any\tcase, the summoning of the record was not thought to
\nbe necessary by the parties. B
\n     Assuming for  the sake  of argument,  that\t there\twere
\ncertain irregularities\tit the procedure the judgment of the
\nHigh Court could not be set aside unless it was shown by the
\nappellant that there has been failure of justice, as will be
\nevident from  section 465  of the  Criminal  Procedure\tCode
\nwhich reads:\n<\/p>\n
\t  “465.\t Finding  or  sentence\twhen  reversible  by
\n     reason of __ error, omission or irregularity-\n<\/p><\/blockquote>\n
\t  (l)  Subject\t to  the  provisions  herein  before
\n     contained .  no finding,  sentence or order passed by a
\n     Court of  competent jurisdiction  shall be\t reversed or
\n     altered by\t a Court of appeal, confirmation or revision
\n     on account\t of any\t error, omission  or irregularity in
\n     the complaint,  summons, warrant,\tproclamation, order,
\n     judgment or other proceedings before or during trial or
\n     in any inquiry or other proceedings under this Code, or
\n     any error,\t or irregularity  in any  sanction  for\t the
\n     prosecution, unless  in the  opinion of  that Court,  a
\n     failure of justice has in fact been occasioned thereby.
\n\t  (2) In  determining whether any error, omission or
\n     irregularity in  any proceeding under this Code, or any
\n     error,  or\t  irregularity\tin   any  sanction  for\t the
\n     prosecution has  occasioned a  failure of\tjustice, the
\n     Court  shall  have\t regard\t to  the  fact\twhether\t the
\n     objection could  and should  have\tbeen  raised  at  an
\n     earlier stage in the proceedings.”<\/p><\/blockquote>\n
     We have  perused the  judgment of\tthe High Court which
\nwas placed  before us  in full. It shows that each and every
\naspect of  the matter  has been thoroughly discussed and the
\nHigh Court  has also  referred to the error committed by the
\nSessions Judge\tin the\tapproach of  the case  and  also  in
\nmaking unwarranted assumptions.\n<\/p>\n
     on merits\twe fully  agree with  the appraisal  of\t the
\nevidence made  by the  High Court.  It is  not necessary  to
\nrepeat the same
\n606<\/span>
\nover again.  There is  no eye  witness. The fate of the case
\nhinges upon  the circumstantial evidence. The High Court has
\ndealt with  the two  dying declarations, one recorded by the
\nDoctor and  the other  by the  Assistant Sub-Inspector.\t The
\nHigh Court  also took  into  consideration  the\t oral  dying
\ndeclaration on\twhich the  prosecution strongly\t relied. But
\neven that  declaration does  not implicate  the accused. The
\nreason given  by the High Court for acquittal in our opinion
\nis cogent and plausible.\n<\/p>\n
     For the  foregoing discussion,  the criminal appeal and
\nthe  special   leave  petition\t must  fail   and  they\t are
\naccordingly dismissed.\n<\/p>\n
S.R.\t\t\t\t Appeal & Petition dismissed\n607<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hanumant Dass vs Vinay Kumar & Ors on 5 April, 1982 Equivalent citations: 1982 AIR 1052, 1982 SCR (3) 595 Author: R Misra Bench: Misra, R.B. (J) 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-153720","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHanumant Dass vs Vinay Kumar & Ors on 5 April, 1982 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hanumant-dass-vs-vinay-kumar-ors-on-5-april-1982\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hanumant Dass vs Vinay Kumar & Ors on 5 April, 1982 - 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