{"id":163367,"date":"1961-07-24T00:00:00","date_gmt":"1961-07-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-andhra-pradesh-vs-thadi-narayana-on-24-july-1961"},"modified":"2015-05-22T11:58:20","modified_gmt":"2015-05-22T06:28:20","slug":"the-state-of-andhra-pradesh-vs-thadi-narayana-on-24-july-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-andhra-pradesh-vs-thadi-narayana-on-24-july-1961","title":{"rendered":"The State Of Andhra Pradesh vs Thadi Narayana on 24 July, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Andhra Pradesh vs Thadi Narayana on 24 July, 1961<\/div>\n
Equivalent citations: 1962 AIR 240, \t\t 1962 SCR (2) 904<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nTHE STATE OF ANDHRA PRADESH\n\n\tVs.\n\nRESPONDENT:\nTHADI NARAYANA\n\nDATE OF JUDGMENT:\n24\/07\/1961\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nWANCHOO, K.N.\nGUPTA, K.C. DAS\n\nCITATION:\n 1962 AIR  240\t\t  1962 SCR  (2) 904\n CITATOR INFO :\n R\t    1966 SC1742\t (7)\n RF\t    1968 SC 653\t (9)\n\n\nACT:\nCriminal  Appeal-Acquittal  of some charges  and  conviction\nothers--Appeal\tby  accused  against  conviction-Powers\t  of\nappellate  court-If  can set aside  acquittal  also-Code  of\nCriminal Procedure, 1898 (V of 1898), s. 423 (1) (b).\n\n\n\nHEADNOTE:\nThe  accused was tried for offences under s. 302 and s.\t 392\nIndian\tPenal Code.  The Sessions judge acquitted her  under\ns.  302\t and s. 392 but convicted her under  s.\t 411  Indian\nPenal code.  The accused appealed to the High Court  against\nher  conviction\t under\ts. 41 1. The State  did\t not  appeal\nagainst\t the  acquittal\t nor did the High  Court  issue\t any\nnotice to the accused under s. 439 (2).\t The High Court\t set\naside the order of conviction under s. 41 1 as well as-\t the\norder of acquittal\n905\n.under\ts.  302\t and s. 392 and ordered\t a  retrial  on\t the\noriginal charges.  The accused contended that the High Court\nhad no jurisdiction to set aside the order of acquittal\t and\nto direct a retrial on the original charges.\nHeld, that while exercising its powers under s. 423 (1)\t (b)\nCode of Criminal Procedure in the appeal against the convic-\ntion  under s. 411 Indian Penal Code the High Court  had  no\njurisdiction  to set aside the order of acquittal passed  in\nfavour\tof the accused by the Sessions judge in\t respect  of\nthe  offences  under  ss. 302 and  392\tIndian\tPenal  Code.\nSection 423 (1) (b) is confined to appeals against orders of\nconviction and sentence, and the powers exercisable under it\nmust  be restricted to the conviction and sentence.   If  an\norder  of acquittal is not challenged by an appeal under  s.\n417 Code of Criminal Procedure and if no action is taken  by\nthe High Court under, s. 439 Code of Criminal Procedure\t the\norder  of acquittal becomes final and cannot  be  challenged\nindirectly in an appeal by the accused against the order  of\nconviction  and\t sentence.  It is wrong to assume  that\t the\nwhole  case is before the High Court when it  entertains  an\nappeal\tagainst conviction.  The power conferred by  s.\t 423\n(1)  (b)  (1) is intended to be exercised in  cases  falling\nunder  ss. 236 to 238 Cr.  P. C., and the expression  \"alter\nthe  finding\"  in s. 423 (1) (b) (2) does  not\tinclude\t the\npower to alter or modify the finding of acquittal.\nKishan\tSingh v. The King-Emperor,<\/a> (1928) L.R. 55  I.A.\t 390\nand Jayaram Vithoba v. The State of Bombay,<\/a> (1935) 2  S.C.R.\n1049, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 222 of
\n1959.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nFebruary  24,  1959,  of  the  Andhra  Pradesh\tHigh  Court,
\nHyderabad, in Criminal Revision Case No. 636 of 1958.\n<\/p>\n
\t\t    AND
\n      Criminal Appeal No. 112 of 1961.\n<\/p>\n
Appeal\tby special leave from the Judgment and\torder  dated
\nJuly 15, 1958, of the Andhra Pradesh High Court in  Criminal
\nAppeal No. 237 of 1957.\n<\/p>\n
K.R.  Chaudhuri and T. M. Sen, for appellant in\t Cr.   A.
\nNo. 222\/59.\n<\/p>\n
P. Ram Reddy, for respondent.\n<\/p>\n
906<\/span><\/p>\n
P.Ram Reddy, for appellant in Cr.  A. No. 112\/61.
\nK.R. Chaudhuri and T. M. Sen, for the respondent.
\n1961.  July 24.\t The Judgment of the Court was delivered by
\nGAJENDRAGADKAR, J.-The short and interesting question  which
\narises for our decision in the present appeal is in  respect
\nof  the\t powers of the High Court in  disposing\t of  appeals
\nunder  s. 423(1)(b) of the Code of Criminal  Procedure.\t  In
\ndealing\t with  an  appeal preferred by\ta  convicted  person
\nagainst the order of conviction and sentence imposed on\t him
\nby  the\t trial court can the High Court in exercise  of\t its
\nappellate  powers under s. 423(1)(b) reverse the finding  of
\nacquittal  recorded  by\t the trial court in  favour  of\t the
\nappellant in respect of an offence which is directly not the
\nsubject-matter\tof the appeal ? On this question  there\t has
\nbeen a difference of opinion amongst our High Courts, and it
\nappears from reported decisions that in the same High  Court
\nsometimes  conflicting\tviews  have been  expressed  on\t the
\npoint.\n<\/p>\n
This question arises in this way.  In the Court of Sessions,
\nVisakhapatnam  Division, the respondent Thadi  Narayana\t was
\ncharged at the instance of the appellant the State of Andhra
\nPradesh\t with having committed offences punishable under  s.
\n302  and s. 392 of the Indian Penal Code.  The case  against
\nher  was that on December 27, 1956 at about night  meal-time
\nat Gangacholapenta she, committed the murder of a minor girl
\nK.  Sriramulamma  by  stabbing her with\t a  knife  and\tthus
\nrendered  herself ‘liable to be punished under s.  302.\t  It
\nwas also alleged against her that at the aforesaid time\t and
\nplace  and  in the course of the same  transaction  she\t had
\nrobbed the said victim of her four pairs of gold Konakammulu
\nand.  a\t pair  of gold Alakalu and  thereby  committed\t‘the
\noffence of robbery under
\n907<\/span>
\ns.   392.   On April 16, 1957 the learned trial judge  found
\nthat  the charges against the respondent under ss.  302\t and
\n392 had not been proved beyond a reasonable doubt, and so he
\nacquitted her of the said offences.  He, however, held\tthat
\nthe respondent was shown to have committed an offence  under
\ns.  411\t and  so he convicted her of the  said\toffence\t and
\nsentenced her to undergo rigorous imprisonment for a  period
\nof two years.\n<\/p>\n
Against the order of conviction and sentence thus imposed on
\nher the respondent preferred a jail appeal in the High Court
\nof  Andhra Pradesh.  This appeal was heard by  Sanjeeva\t Rao
\nNaidu,\tJ.  By his judgment delivered on July 22,  1958\t the
\nlearned\t  judge\t expressed  his\t conclusion  that  he,\t was
\nsatisfied that gross miscarriage of justice had resulted  in
\nthe  case “and the only way to rectify this is to order\t the
\nretrial\t of the case on the original charges under  ss.\t 302
\nand 392 of the Indian Penal Code so thatthe accused may
\nbe properly tried thereon and,if     found\tguilty,
\nconvicted for the offence or proved by evidence to have been
\ncommitted by her.” In the result the conviction and sentence
\nof  the accused under s. 411 was set aside and the case\t was
\nremanded  to  the  trial court for retrial  on\tthe  charges
\nalready framed against her.\n<\/p>\n
Accordingly  when her retrial commenced on November 3,\t1958
\nan  application was made on behalf of the respondent  before
\nthe trial judge (Criminal M. P. No. 242 of 1958) in which it
\nwas  urged that her trial in respect of the  offences  under
\nss.302\tand  392 was not permissible having  regard  to\t the
\norder  of acquittal which had been passed in her  favour  at
\nthe  original trial.  The validity of the  plea\t ofautrefois
\nacquit\tthus raised by the respondent was challenged by\t the
\nappellant,  and\t it was ‘urged that by virtue of  the  order
\npassed\tby  the High Court ordering her\t retrial  the  trial
\ncourt in law was
\n908<\/span>
\nbound  to proceed with the retrial.  The trial judge  upheld
\nthis  contention and observed that he was bound to obey\t the
\ndirections given by the High Court and if he were to examine
\nthe  merits  of\t the contention raised\tbefore\thim  by\t the
\nrespondent he would be transgressing his limits, because the
\ndetermination  of the point raised by the  respondent  would
\nnecessarily  involve examining the correctness or  otherwise
\nof  the High Court’s order directing a retrial.\t  The  trial
\ncourt thus rejected the application made by the respondent.
\nAgainst\t this order the respondent moved the High  Court  by
\nher  Criminal  Revision Application No. 636  of\t 1958.\t The
\nCriminal Revision Application, as placed before a Full Bench
\nbecause\t it  raised two important questions of\tlaw.   These
\nquestions were thus framed:\n<\/p>\n
      (1)Where\tan  accused is tried by\t a  Sessions
\n      Court  on charges of murder and  robbery,\t and
\n      the  Sessions  Court acquits  the\t accused  of
\n      those  charges  and convicts her\tonly  of  an
\n      offence  under  section 411 I. P. C.  and\t the
\n      accused appeals to the High Court against\t the
\n      conviction   and\t sentence  but\t the   State
\n      Government   does\t not  appeal   against\t the
\n      acquittal of the accused on charges of murder.
\n      and  robbery, is it open to the High Court  to
\n      set  aside the conviction and  sentence  under
\n      section 411 1. P. C. and order the accused  to
\n      be  retried  on  the  charges  of\t murder\t and
\n      robbery ?\n<\/p><\/blockquote>\n
      (2)When in pursuance of the order of the\tHigh
\n      Court the Sessions Court again frames  charges
\n      under  sections 302 and 392 I. P.\t C.  against
\n      the  accused, is it or is it not open  to\t the
\n      accused\tto  plead  the\tstatutory   bar\t  of
\n      AUTREFOIS ACQUIT’ under section 403 Cr. P.C.?\n<\/p><\/blockquote>\n
The answer given by the Full Bench to the first,
\n\t\t    909<\/span>
\nquestion is that except in exercise of the revisional powers
\nunder  s. 439 of the Code of Criminal Procedure\t subject  to
\nthe  limitations  prescribed therein it is not open  to\t the
\nHigh  Court to order a retrial on the charges on  which\t the
\naccused was acquitted by the trial court in an appeal by the
\naccused\t against his conviction, though ‘it is empowered  to
\nreverse\t the conviction and order a retrial on\tthat  charge
\nalone.\t On the second question the Full Bench held that  it
\nwas open to the accused to plead the bar of autrefois acquit
\nunder  s.  403 notwithstanding the order of the\t High  Court
\nunless there is an adjudication on the acquittal by the High
\nCourt  either under s. 423(1) (a) or S. 439 of the  Code  of
\nCriminal Procedure.  As a result of these answers the  revi-
\nsional application preferred by the respondent was  allowed,
\nher plea under s.403 was upheld and it was ordered that\t the
\nretrial of the respondent for the offences under ss.302\t and
\n392 of the Indian Penal Code cannot be proceeded with., This
\norder  was  passed on March 11, 1959.  It  is  against\tthis
\norder  that the appellant has come to this Court by  special
\nleave.\n<\/p>\n
The  powers of the appellate court in disposing\t of  appeals
\nare  prescribed by s. 423 of the Code.\tThis section  occurs
\nin  Chapter  XXXI  of the Code\twhich  deals  with  appeals,
\nreference  and\trevision.   In the  present  appeal  we\t ire
\nconcerned with the provisions of s.423(1) (b).\tHowever,  it
\nis convenient to read s. 423(1) (a) and (b)\n<\/p>\n
      423.(1) The Appellate Court shall then  send
\n      for the record of the case, if such record  is
\n      not  already  in Court.  After  perusing\tsuch
\n      record, and hearing the appellant or his plea-
\n      der, if he appears, and the Public Prosecutor,
\n      if he appears, and, in case of an appeal under
\n      section  411A, subjection (2) or section\t417,
\n      the accused, if he appears, the Court may,  if
\n      it  considers  that  there  is  no  sufficient
\n      ground.  for interfering, dismiss the  appeal,
\n      or may-\n<\/p>\n
      910<\/span><\/p>\n
      (a)in  an appeal from an order  of  acquittal,
\n      reverse  such order and direct   that  further
\n      inquiry  be  made,,  or that  the\t accused  be
\n      retried or committed for trial as the case may
\n      be,  or find him guilty and pass\tsentence  on
\n      him according to law;\n<\/p>\n
      (b)in  an appeal from conviction, (1)  reverse
\n      the  finding  and\t sentence,  and\t acquit\t  or
\n      discharge\t the  accused  or order\t him  to  be
\n      retried  by a Court of competent\tjurisdiction
\n      subordinate   to\tsuch  Appellate\t  Court\t  or
\n      committed for trial, or (2) alter the finding,
\n      maintaining the sentence, or, with or  without
\n      altering\tthe finding, reduced  the  sentence,
\n      or,  (3)\twith or without such  reduction\t and
\n      with  or without altering the  finding,  alter
\n      the  nature of the sentence, but,\t subject  to
\n      the  provisions  of section  106,\t sub-section
\n      (3),. not so as to enhance the same;\n<\/p>\n
Section\t 423(1) (a) expressly deals with an appeal  from  an
\norder  of acquittal and it empowers the Appellate Court\t to.
\nreverse\t the  order  of acquittal and  direct  that  further
\ninquiry\t be  made  or  that the\t accused  may  be  tried  or
\ncommitted for trial, as the case may be, or it may find\t him
\nguilty\tand  pass  sentence on him  according  to  law.\t  In
\nappreciating the powers conferred on the Appellate Court  in
\ndealing with an appeal against, an order of acquittal it  is
\nnecessary  to  bear  in mind that the only  forum  where  an
\nappeal\tcan be preferred against an\t   original   or  an
\nappellate order of ‘acquittal is the High Court, that is  to
\nsay the powers conferred on the Appellate Court by  s.423(1)\n<\/p>\n
(a)  can be exercised only by the High Court and not by\t Any
\nother  Appellate Court.\t Under s. 408 the Court of  Sessions
\nis  an\tAppellate  Court to which  appeals  from  orders  of
\nconviction  passed  by\tan  Assistant  Sessions\t Judge,,   a
\nDistrict Magistrate or any other Magistrate lie, and so\t the
\nCourt  of  Sessions is An Appellate- Court,  but  no  appeal
\nagainst an order of acquittal passed by any
\n     911<\/span>
\nof  the\t aforesaid  authorities can lie\t to,  the  Court  of
\nSessions.   All appeals against acquittal whether passed  by
\nthe trial court or the Appellate Court lie only to the\tHigh
\nCourt, and so the powers prescribed by s. 423(1) (a) can  be
\nexercised  only\t by the High Court.  As\t we  will  presently
\npoint out this fact has some bearing on the construction  of
\nthe material words used in s. 423(1) (b) (2).
\nSection 423(1) (b) (1) in terms deals with an appeal from  a
\nconviction,  and it empowers the Appellate Court to  reverse
\nthe  findings  and  sentence and  acquit  or  discharge\t the
\naccused\t or  order  a  retrial\tby  a  Court  of   competent
\njurisdiction  subordinate  to  such  Appellate.\t  Court\t  or
\ncommitted for trial.  In the context it is obvious that\t the
\nfinding\t must  mean the finding of guilt.   The\t words\t“the
\nfinding\t and sentence” are co-related.\tThey  indicate\tthat
\nthe finding in question is the cause and the sentence is the
\nconsequence; and so what the Appellate Court is empowered to
\nreverse\t is the finding of guilt and consequently the  order
\nas  to sentence.  There is no.difficulty in holding that  s.
\n423(1)\t(b)  (1)  postulates the presence of  an  order,  of
\nsentence against the accused and it is in that context\tthat
\nit  empowers the Appellate Court to reverse, the finding  of
\nguilt  and  sentence  and  then\t to  pass  any\tone  of\t the
\nappropriate  orders: therein specified.\t In our\t opinion  s.
\n423 (1) (b) (1) is, therefore, clearly confined to cases  of
\nappeals preferred against orders of conviction and sentence,
\nand the powers exercisable under it are therefore condition-
\ned by the said consideration.  It is impossible to accede to
\nthe argument that the powers conferred by this clause can be
\nexercised for the purpose of reversing an order of acquittal
\npassed in favour of a party in respect of an offence charged
\nin dealing with an appeal preferred-by him against the order
\nof  conviction\tin respect of another  offence\tcharged\t and
\nfound  proved.\tThere can thus. be no doubt that  the  order
\npassed by Naidu, J. cannot be justified under this clause.\n<\/p>\n
912<\/span><\/p>\n
At this stage it would be relevant to point out that  Naidu,
\nJ.  did not purport to proceed under s.439 in  dealing\twith
\nthe  respondent’s’  case when the appeal  preferred  by\t her
\nagainst\t her conviction was being argued before him.  It  is
\ntrue  that  the\t learned judge noticed that  the  appeal  in
\nquestion  was  a  jail appeal and the,\trespondent  was\t not
\ndefended by a lawyer.  So he ordered Mr. A. Gangadhara\tRao,
\nan Advocate of’ the Court, to appear amicus curiae to  argue
\nthe pea on behalf of the respondent; but, as the Full  Bench
\nhas pointed, out, the record clearly shows that neither\t the
\nrespondent nor her pleader was given notice under s’  439(2)
\nof  the Code, and even the advocate appointed amicus  curiae
\ndid  not  know\tmuch less the respondent  herself  that\t the
\nlearned\t judge intended to exercise his powers\tunder  s.439
\nagainst\t the  respondent in respect of\tthe  offences  under
\nss.302\tand 392 despite the fact that the appellant had\t not
\npreferred an appeal against the order of acquittal passed in
\nfavour of the respondent on those grounds.  Therefore, it is
\nunnecessary  for us to consider in this appeal the  question
\nabout  the scope and effect of the provisions of ss.423\t and
\n439  of\t the Code read together.  The only  provision  under
\nwhich the order passed by Naidu J. is seriously sought to be
\nsupported is s.423 (1) (b) (2)\t   and\t it   is   to\tthat
\nprovision that we must now turn.\n<\/p>\n
It  is\turged  by  Mr.\t Choudhury  on\tbehalf\tof  the
\nappellant  that\t in  construing the  expression\t “alter\t the
\nfinding”  it  would be necessary to remember that  when\t the
\nHigh  Court  deals  with an appeal  against  conviction\t the
\nproceedings  in\t the  Appellate Court  are  in\tsubstance  a
\ncontinuation  of the proceedings in the trial court  and  so
\nthe  entire  case  is  in  that\t sense\tpending\t before\t the
\nAppellate  Court.   The argument is that in  exercising\t the
\npowers conferred on it by s.423 (1)(b)(2) the High Court  is
\nnot  confined  only  to the order  of  conviction  which  is
\ndirectly
\n\t\t    913<\/span>
\nthe subject-matter of the appeal but it is possessed of\t the
\nentire\tproceedings of the case against, the accused and  it
\nis in the light of this fact that the expression “alter\t the
\nfinding”  must be construed.  In our opinion, this  argument
\nis  not\t wellfounded.  The scheme of s. 423  itself  clearly
\nshows  that  when  appeals against  conviction\tare  brought
\nbefore\tthe  Appellate Court by the convicted person  it  is
\nonly  with the orders of conviction and\t matters  incidental
\nthereto that fall to be decided by the Appellate Court.\t  An
\norder of acquittal passed in favour of an accused person can
\nbe  challenged\tby an appeal as provided by  s.417  of\tthe,
\nCode,  and s.423(1) (a) therefore expressly deals  with\t the
\npowers\tof  the\t High Court in\tdealing\t with  such  appeals
\nagainst\t orders of acquittals.\tPrima facie,if an  order  of
\nacquittal is not challenged by an appeal as contemplated  by
\ns.417  and  if no action is taken by the  High\tCourt  under
\ns.439  the said order of acquittal becomes final and  cannot
\nbe  impugned indirectly by the State in resisting an  appeal
\nfiled  by a convicted person against his conviction.   In  a
\ncase  where several offences are charged against an  accused
\nperson\tthe  trial is no doubt one; but\t where\tthe  accused
\nperson is acquitted of some offences and convicted of others
\nthe  character of the appellate proceedings and their  scope
\nand  extent is necessarily determined by the nature  of\t the
\nappeal\tpreferred before the Appellate Court.  If an  appeal
\nis preferred against an order of acquittal by the State\t and
\nno  appeal  is filed by the convicted  person.\tagainst\t his
\nconviction it is only the order of acquittal which falls  to
\nbe  considered by the Appellate Court and not the  order  of
\nconviction.   Similarly,  if  an  order\t of  conviction\t  is
\nchallenged by the convicted person but the order of acuittal
\nis not challenged by the State then it is only the order  of
\nconviction  that  falls to be considered  by  the  Appellate
\nCourt  and  not\t the  order  of\t acquittal.   Therefore\t the
\nassumption that the whole case is before the High Court when
\nit entertains an appeal against conviction
\n914<\/span>
\nis  not well-founded and as such it cannot be  pressed\tinto
\nservice in construing the expression “alter the finding”.
\nIn  this connection we ought to recall the fact that  it  is
\nonly the High Court which is authorised to entertain appeals
\nagainst\t acquittal  under  s.417  of  the  Code.   But\t the
\nprovisions  of\ts.423  (1) (b) are  applicable\tto  all\t the
\nAppellate Courts and so the meaning of the expression “alter
\nthe finding” cannot change according as the Appellate  Court
\nis  the High Court or the Court of Sessions.  It  is  common
\nground\tthat  the Court of Sessions which  is  an  Appellate
\nCourt cannot alter the finding of acquittal in pursuance  of
\nthe provisions of s.423 (1) (b) (2) but the argument is that
\nthe,  High  Court  can.\t This argument\tputs  two  different
\ninterpretations\t on the same expression “alter the  finding”
\nand  that would not be a proper mode to adopt in  construing
\nthe  clause.  We are, therefore, inclined to bold that\tjust
\nas  the\t Court\tof sessions is not  entitled  to  alter\t the
\nfinding\t of acquittal in exercising its powers under s.\t 423
\n(1) (b) (2) so is the High Court not entitled to do it,.  In
\nother words, the expression “alter the finding” has only one
\nmeaning, and that is alter the finding of conviction and not
\nthe finding of acquittal.\n<\/p>\n
Besides,  if  the  expression “alter  the  finding”  was  to
\ninclude the power to reverse the finding of acquittal it  is
\nnot  easy  to realise why s. 423 (1) (a)  should  have\tbeen
\nenacted\t at  all.  From the very fact that s.  423  (1)\t (a)
\ndeals independently with the topic of appeals from orders of
\nacquittal,  it\twould  be  reasonable  to  infer  that\t the
\nappellate  power in respect of the orders of  acquittal\t are
\ndealt with separately and exclusively under s. 423 (1)\t(a),
\nwhereas\t appellate powers to deal with orders of  conviction
\nare  dealt with separately and exclusively under s. 423\t (1)\n<\/p>\n
(b).  The scheme of s. 423, therefore, is inconsistent\twith
\nthe argument that cl. (2) of S.423 (1) (b) covers orders  of
\nacquittal and empowers the Appellate Court to alter the said
\norders.,
\n 915<\/span>
\nAs a matter of construction the words “”the, finding” in the
\nexpression  “alter  the finding” must mean  the\t finding  of
\nconviction’  because  the clause begins with “in  an  appeal
\nfrom  a\t conviction”  and it is obvious\t that  read  in\t the
\ncontext\t of the opening words of the clause  “‘the  finding”
\nmust  mean  the finding of conviction and no other.   It  is
\nwith an appeal from conviction that the’clause deals and  it
\nis the finding of conviction or guilt which it empowers\t the
\nAppellate  Court  to alter.  The word “alter”  must  in\t the
\ncontext be distinguished from the word “reversed”.  Whereas,
\nunder  s. 423(1)(b)(1) power is conferred on the High  Court
\nto  reverse the order of conviction the power  conferred  on
\nthe  Appellate Court by the expression “‘alter the  finding”
\nis merely the power to alter.  Reversal of the order implies
\nits  obliteration,  whereas alteration would imply  no\tmore
\nthan   modification   and  not\t its   obliteration.\tThis
\nconsideration  also shows that what- the expression aims  at
\nis the finding of conviction or guilt and not the finding of
\nacquittal or innocence.\n<\/p>\n
There  is yet another consideration which leads to the\tsame
\nconclusion.  Section 423(1)(b)(2) emphatically refers to the
\nsentence  and  requires that despite the alteration  of\t the
\nfinding\t the sentence must be maintained.  In  other  words,
\nthe  finding  and the sentence go together  and\t the  clause
\nprovides  that, even if the finding is altered the  sentence
\nmay  be\t retained.  Similarly, the sentence may\t be  reduced
\nwith or without altering the finding.  The reference to\t the
\nsentence in both the cases indicates that the finding  which
\ncan  be altered under the clause is a finding which has\t led
\nto  the imposition of sentence on the accused person.\tThis
\nclause would naturally raise the question as to what are the
\nkinds  of  cases in which the power can be exercised  ?\t The
\nanswer\tto this question is furnished by the  provisions  of
\nss. 236, 237 and 238 Section. 236 deals with cases where
\n917<\/span>
\nseparately enacted in order to empower the High Court in the
\ninterest  of justice to examine the orders of acquittal\t and
\nif it is satisfied that in any case, the order of  acquittal
\nneeds  to be revised the High Court can exercise  its  power
\nsuo  motu.   The  legislature  has  therefore\tdeliberately
\nprovided  wide\tpowers\tunder  s. 439  in  the\tinterest  of
\njustice,  and so it is very unlikely that  the’\t legislature
\ncould  have intended to confer a similar power on  the\tHigh
\nCourt under s. 423 (1) (b) (2).\n<\/p>\n
In  this connection we ought to deal with  another  argument
\nwhich  is sometimes dressed into service in support  of\t the
\nwider  construction of the clause ‘falter the finding”.\t  It
\nis  said that the provisions of s. 439 apply-to cases  where
\nthere is a complete and express order of acquittal,  whereas
\na.  423\t (1)  (b) (2) covers cases of  implied\tand  partial
\nacquittal.   It\t is  also  urged that  whereas\tthere  is  a
\nspecific  provision  made in s. 439 (4) by  which  the\tHigh
\nCourt  is precluded from converting a finding  of  acquittal
\ninto  one  of conviction there is no such limitation  in  s.\n<\/p>\n
423.   Both these arguments do not appear to us to be  well-
\nfounded.   In regard, to the argument of  implied  acquittal
\nbeing  open to review by the High Court under s.423 (1)\t (b)
\n(2) it would be enough to refer to at decision of the  Privy
\nCouncil\t where\tthis argument has been rejected.  In  Kishan
\nSingh  v. The King-Emperor<\/a> (1) the appellant had been  tried
\nby a Sessions Judge under s. 302 on a charge of murder.\t  He
\nwas convicted under S.304 of culpable homicide not amounting
\nto  murder.  This conviction was recorded in the,  light  of
\nthe  provisions of s.238 (2) of the Code,.  For the  offence
\nunder s.304 he was sentenced to five years’ rigorous  impri-
\nsonment.   While convicting the appellant under s.  304\t the
\ntrial court did not record a specific order of acquittal for
\nthe  offence  under s. 302.  The State\tGovernment  did\t not
\nappeal\tbut  applied  for revision on the  ground  that\t the
\nappellant should have been
\n(1) (1928) 55 I. A. 390.\n<\/p>\n
918<\/span><\/p>\n
convicted  of murder and that the sentence  was\t inadequate.
\nThe  High Court thereupon convicted the appellant of  murder
\nand  sentenced him to death.  This order of  conviction\t and
\nsentence was successfully challenged by the appellant before
\nthe Privy Council.  The Privy Council held that the finding
\nat   the trial ought to be regarded as of acquittal on the
\ncharge of murder and that consequently s.    439 (4) of\t the
\nCode precluded the High Court from having jurisdiction\tupon
\nrevision  to  convict  on that\tcharge.\t  Dealing  with\t the
\nargument  that s. 439 (4) should be confined only  to  cases
\nwhere there is complete acquittal their Lordships thought it
\nnecessary  to say that “,if the learned Judges of  the\tHigh
\nCourt of Madras intended to ‘hold that the prohibition in s.
\n439,  sub  s. (4) refers only to cases where the  trial\t has
\nended  in a complete acquittal of the accused in respect  of
\nall  charges  or  offences, and not to a case  such  as\t the
\npresent, where the accused has been acquitted of the  charge
\nof  murder, but convicted of the minor offence\tof  culpable
\nhomicide not amounting to murder, their Lordships are unable
\nto  agree with that part of their decision.  The  words\t  of
\nthe  sub-section are clear and there can be no doubt  as  to
\ntheir\tmeaning.    There  is  no  justification   for\t the
\nqualification which the learned Judges attached to the\tsub-
\nsection.” It would thus be clear that any attempt to confine
\nthe  operation\tof  s. 439 (4) to  cases  of  the  so-called
\ncomplete acquittal cannot be entertained; and so it would be
\nidle  to  suggest that s. 423 (1) (b) (2)  covers  cases  of
\nimplied\t or partial acquittal a s. 439 deals with  cases  of
\nexpress and complete acquittal.’ In setting aside the  order
\nof  conviction for the offence of murder  imposed….by\t the
\nHigh Court on the appellant the Privy Council observed\tthat
\nthe  High  Court had acted without jurisdiction\t and  so  it
\ncould not accept the plea that no prejudice had thereby been
\ncaused\tto the\tappellant,.  This case,\t therefore,  clearly
\nestablishes Chat in exercising the powers conferred on it by
\ns. 423 (1) (b) the
\n919<\/span>
\nHigh Court cannot convert acquittal into conviction that can
\nbe done only by adopting the procedure prescribed in s.\t 439
\nof the Code.\n<\/p>\n
Then,  as to the argument based on the\tspecific,  provision
\ncontained in s. 439(4) it is obvious that no such limitation
\ncould have been prescribed in regard to the provisions of s.
\n423  (1)(b) for the reason that the orders of acquittal\t are
\noutside the purview of that clause.  Therefore, it would  be
\nunreasonable to suggest that because there is no  limitation
\non the power of the High Court as there is in s. 439(4)\t the
\nHigh   Court  can,  in\tdealing\t with  an   appeal   against
\nconviction,  alter the finding of acuittal recorded  at\t the
\nTrial in favour of the accused person.\tWe must\t accordingly
\nbold that the Full Bench of the Andhra High Court was  right
\nin  coming  to the conclusion that Naidu, J.  acted  without
\njurisdiction in altering the finding and order of  acquittal
\npassed\tin  favour  of\tthe respondent\tin  respect  of\t the
\noffences under ss. 302 and 392 when he, was dealing with the
\nappeal\tpreferred by the respondent against  her  conviction
\nunder s. 41 1.\n<\/p>\n
In  this  connection  we  way  incidentally  refer  to\t the
\nobservations  made by Venkatarama Ayyar, J., who  spoke\t for
\nthe Court, in Jayaram Vithoba v. The State of Bombay.<\/a> (1) In
\ndealing\t with the contention of the accused that  the  Court
\nhad  no\t power under s.423 (1) (b) of the Code\tof  Criminal
\nProcedure  to  award a sentence under s. 148 in a  case\t the
\naccused\t was  charged under ss. 324 and 148  of\t the  Indian
\nPenal Code., the High Court had observed that they had ample
\npower to transpose the sentence so long as the transposition
\ndoes not amount to enhancement, and this observation  raised
\na question about the construction of s. 423 (1)(b).  Dealing
\nwith  the  said question, Venkatararia\tAyyar,\tJ.  observed
\nthere is nothing about
\n(1)  (1955) 2 S C. R. 1049.\n<\/p>\n
920<\/span><\/p>\n
the  transposition of the sentence under s. 423 (1)(b).\t  It
\nonly  provides for altering the finding and maintaining\t the
\nsentence, and that can apply only to cases where the finding
\nof guilt under one section is altered to a finding of  guilt
\nunder  another.\t  The  section\tmakes  a  clear\t distinction
\nbetween a reversal of a finding and its alteration”.   These
\nobservations  seem  to take the same view of the  scope\t and
\neffect of the provisions of s. 423(1)(b) as we are  inclined
\nto do.\n<\/p>\n
As  we\thave already indicated at the commencement  of\tthis
\njudgment;,  on the question raised for our decision  in\t the
\npresent appeal there has been conflict of judicial  opinion.
\nWe  do\tnot,  however,\tpropose\t to  consider  the   several
\ndecisions  to which our attention was drawn because, in\t our
\nopinion, no useful purpose would be served by examining\t the
\nfacts  in  all those cases and subjecting  to  scrutiny\t the
\nreasons\t adopted for arriving at different conclusions.\t  We
\nwould, therefore, content ourselves with the broad statement
\nthat respondent has relied upon the decisions in Indra Kumar
\nNath  v. The State (1).\t The State v. Amlesh Chandra Ray.  (\n<\/p>\n
2), Fulo v. State (3) (Full Bench), and Taj Khan v. Rex\t (4)
\n(Ful  Bench),  whereas\tthe appellant has  relied  upon\t the
\ndecisions in Krishna Dhan Mandal v.\tQueen-Empress\t(5),
\nQueen-Empress v. Jabanulla (6),
\n(1)  A. I. R. (1954) Cal. 375. (2) r. L.R. (1953)1 Cal.302.
\n(3)  (1956) I. L.R. 35 Pat. 144. (4) A. I. R. 1932 All. 369.
\n(5)  (1895) I.L.R. 22 Cal. 377. (6) 1896 I.L.R. 23 Cal. 975.\n<\/p>\n
921<\/span><\/p>\n
In Re Illuru Lakshmaih, (1) Golla Hanumappa v. Emperor,’ (2)
\nRe  K. Bali Reddi, (3) In Re Rangiah, (4) Baua Singh v.\t The
\nCrown (5) (Full Bench) and the majority judgment in  Emperor
\nv.  Zamir Qasim (6) The minority view expressed by Mulla  J.
\nin   Emperor  v.  Zamir\t Qasim(6)  contain  a  careful\t and
\nexhaustive  discussion of the topic and the  respondent\t has
\nstrongly relied upon it.\n<\/p>\n
There is one more point which still remains to be considered
\nand that is the subject-matter of the second issue  referred
\nto  the Full Bench.  It is urged before us by Mr.  Choudhury
\non behalf of the State that the Full Bench itself has  acted
\nin  excess of jurisdiction in entertaining the plea.  arised
\nby the respondent under s. 403, because he contends that the
\njudgment  delivered by Naidu J. could not be revised by\t the
\nHigh Court having regard to the provisions of s. 369 of\t the
\nCode.  We have already mentioned that this question has also
\nbeen  answered\tin favour of respondent by the\tFull  Bench.
\nThe  judgment  of  the Full, Bench does not  show  that\t the
\neffect of the provisions of s. 369 was argued before it.  In
\nsubstance, however, the Full Bench has held that the.  order
\npassed by Naidu J. is outside the authority conferred on the
\nHigh Court under s. 423 (1)(b)(2) and as such can be treated
\nto be without jurisdiction and therefor e a. nullity.  We do
\nnot  propose  to decide this point in  the  present  appeal,
\nbecause\t we  have,  allowed  1\tA.  I.\tR.  1952  Mad.\t101.
\n(2)(1912) I.L.R.35 Mad. 243.\n<\/p>\n
(3)  1914 I. L. R. 37 Mad. 119. (4) A. I. R, 1954 Mys. 122.
\n(5) (1942) I.L.R. 23 Lah. 129\t(6) I.L.R. (1944) All. 403.\n<\/p>\n
922<\/span><\/p>\n
Mr.  Rama  Reddy,  who appeared for  the’respondent  at\t our
\ninstance,  to make an application for special leave  against
\nthe order passed by Naidu J. Accordingly Mr. Rama Reddy\t has
\nmade  an application, Special Leave Petition (Criminal)\t No.
\n476 of 1961, for special leave and has prayed-for excuse  of
\ndelay made in filing it.  Having regard to the very  unusual
\ncircumstances in which the present application has been made
\nwe  feel  no difficulty in condoning the delay made  by\t the
\nrespondent  in filing her application for special leave\t and
\ngranting  her special leave to appeal against the  order  in
\nquestion.   In fairness we ought to add that  Mr.  Choudhury
\ndid  not resist the respondent’s prayer for excuse of  delay
\nin  the\t present  case.\t Since we are now  possessed  of  an
\nappeal,\t Criminal Appeal No. 112 of 1961, filed\t by  special
\nleave  against\tthe  judgment  and order  of  Naidu  J.\t the
\nquestion as to whether the Full Bench could have  considered
\nthe  validity  of the said judgment and order has  become  a
\nmatter\tof academic importance.\t There can be no doubt\tthat
\nin. the appeal preferred by the respondent against the\tsaid
\norder it is certainly open to her to challenge its validity,
\nand as we have come to the conclusion that the order  passed
\nby  Naidu T. is with out jurisdiction we have no  difficulty
\nin  allowing the respondent’s appeal and setting aside\tthe,
\nsaid order.\n<\/p>\n
      In the result Criminal Appeal No. 112 of\t1961
\n      preferred by the respondent Thadi\t Narayana’is
\n      allowed  and the High”Court’s order passed  in
\n      Criminal Appeal No. 237 of
\n\t\t\t   923<\/span>
\n      1957  by which case against her had been\tsent
\n      back  for\t retrial  on  the  original  charges
\n      against  her  under  ss. 302 and\t392  of\t the
\n      Indian  Penal Code is set aside.\t The  conse-\n<\/p>\n
\t\t    quence  of this decision is that the  order\t of
\n      acquittal\t passed in her favour by  the  trial
\n      court ill respect of the said offences is\t re-
\n      stored.\tThe  State  has\t not  preferred\t any
\n      appeal  against the High Court’s\tdecision  in
\n      Criminal\tAppeal No. 237 of 1957 where by\t the
\n      conviction of Thadi Narayana in respect of the
\n      offence  under s. 411 and sentence imposed  on
\n      her  in that behalf have been set aside  while
\n      ordering\ther retrial for the  major  offences
\n      under ss. 302 and 392 of the Indian Penal Code
\n      ;\t and  so this latter order of  acquittal  in
\n      respect of S. 411 will stand.  In the  circum-
\n      stances  of this case this result\t cannot,  be
\n      avoided.\tCriminal  Appeal  No.  222  of\t1959
\n      preferred by the State against the decision of
\n      ‘the   Full  Bench  therefore  fails  and\t  is
\n      dismissed.\n<\/p>\n
Criminal Appeal No. 11 2 of 1961 allowed.\n<\/p>\n
Criminal Appeal\t No. 222 of 1959 dismissed
\n924<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Andhra Pradesh vs Thadi Narayana on 24 July, 1961 Equivalent citations: 1962 AIR 240, 1962 SCR (2) 904 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. 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. […]<\/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-163367","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Andhra Pradesh vs Thadi Narayana on 24 July, 1961 - 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\/the-state-of-andhra-pradesh-vs-thadi-narayana-on-24-july-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Andhra Pradesh vs Thadi Narayana on 24 July, 1961 - 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