State Vs. Kalu S/O Girdhari and anr. - Court Judgment

Chaturvedi, J.

1. This reference to the Full Bench arises from a Government appeal filed under Section 417 of the Criminal Procedure Code against an order of the Sessions Judge, Dhar, acquitting the respondents of the charges under Sections 304, 392 and 302, Indian Penal Code. The respondents were convicted under Section 304, part 2 and an appeal filed by them against their conviction was dismissed by a Division Bench of this Court on 5.12.1949. Rege J. delivering the judgment of the Division Bench concluded his judgment in para 11 in the following words:

I would, therefore, maintain the conviction and dismiss the appeal. The learned Government Advocate made a strong plea for alteration of the conviction to one under Section 302 of the Penal Code. The Government has not filed an appeal from the acquittal under Section 302 although such an appeal would be within time, and in the circumstances, I would not think of altering the conviction though I agree, this Court has the power in a proper case to do so.

2. The Government Advocate then filed an appeal on 21.12.49 against the order of the Sessions Judge, Dhar, acquitting the respondents of the offences under Sections 394, 392 and 302 as stated above.

3. An objection was raised by Mr. Sanghi, learned Counsel for the respondents, that in view of the decision of the Division Bench dismissing the appeal of the respondents against, their conviction, the Government appeal against the order of acquittal is not competent. Whether it is competent or not is a question referred to this Full Bench.

4. Much argument has first been addressed to us on the question whether the Division Bench which heard the appeal against the conviction of the respondents was or was not empowered to alter the conviction of the respondents to one under Section 302, Indian Penal Code. If the Bench was so empowered, it has been argued, and the Bench did not consider it proper to alter the conviction from one under Section 304 to one under Section 302, the appeal against acquittal filed after the decision of the Division Bench should not be entertained. In. other words, the first question for consideration is whether this Court sitting as an appellate Court, is empowered to convert the finding of an acquittal into one of conviction. A mass of case law has clustered round the question and, at present, it has given rise to considerable divergence of judicial opinion on the point. A number of cases were cited during the course of arguments but as this question is only of subsidiary importance in the case before us I shall avoid a detailed reference to all those cases. At one time, of course, there was a practical unanimity in the country on the interpretation of Section 423(1)(b)(2), Criminal Procedure Code and the High Courts in India were agreed that the conviction under appeal could be so varied as to include an offence about which there was an acquittal Queen empress v. Jabanulla 23 Cal 975; Romesh Chandra v. Emperor 41 Cal 350; Dhanpat Singh v. Emperor AIR 1917 Pat 625; Mahangu Singh v. Emperor AIR 1918 Pat 257; Om Shwe v. Emperor 4 Rang 436; Kan Thein v. Emperor 4 Rang 140; Appana v. Pethani Mahalakhami 34 Mad 545; Golla Hannumappa IN RE, 35 Mad 243; K. Bali Reddi v. Emperor 37 Mad 119; Sarada v. Emperor 34 All 115 and Dulli v. Emperor AIR 1918 All 65.

5. After the decision of their Lordships of the Privy Council in Kishan Singh v. Emperor 50 All 722, another view emerged stating that the Privy Council had approved the statement of law that the only way in which a finding of acquittal can be altered or reversed is by a Government appeal: Sarada Prasad v. Emperor AIR 1937 All 240 and Jado Rahim v. Emperor AIR 1938 Sind 202. On the other hand, it was held in other cases that 50 All 722, did not interpret the powers of the appellate Court or the combined revisional and appellate powers of a High Court and it is limited to the revisional powers of the High Court, and it leaves the authority of old cases referred to above substantially unshaken: Barada Singh v. Emperor ILR (1942) Lah 129; Emperor v. Barka Jetha Majhi 20 Pat 881; Hanuman v. Emperor 60 Cal 179; Lakhan Singh v. Emperor 9 Luck 607 and Raghunath v. Emperor 55 All 834.

6. As the question is of interpretation of Section 423 which defines the powers of the appellate Court in disposing of appeals, it may be convenient to quote the section itself which states that the appellate Court may:

1. (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 a 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' reduce 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.

7. The word 'alter' has been used above always in juxtaposition with 'reverse' to indicate that 'reversal of a finding' is different from 'alteration of a finding' which is definitely a weaker term. 'Reversal' connotes the complete annulment or revocation, or abrogation of a finding of a guilt or innocence (as the case may be) by the trial Court so as to convert a decision that a man is innocent into a finding of guilty or vice versa. It means turning into something completely opposite in character. 'Alteration' is on the other hand a less radical expression meaning 'a change in form' without changing the underlying character of the thing to be changed. It envisages only such a change of form which does not altogether destroy the essence of the thing which is altered. It is significant to note that in an appeal against an order of acquittal in Section 423(1)(a) the words are 'reverse such order' and not 'reverse such Ending' while in an appeal against conviction in Section 423(1)(b) the words are:

(1) 'reverse the finding and sentence' (2) alter the finding maintaining the sentence and (3) alter the nature of the sentence.

8. It is obvious that there is not only the distinction between the words 'alter' and 'reverse' but the distinction between 'order' 'finding' and 'sentence' is also emphasised in Section 423(1). A 'finding' includes both a ?finding' of law as well as a 'finding of fact'. A 'finding' therefore means and includes the conclusions of the Court on facts which constitute the offence, the conclusion of the Court that the accused is guilty and not innocent and then the conclusion that the offence falls within a particular section of the statute. If an appellate Court in an appeal from a conviction reverses the finding and sentence the accused will be acquitted or be ordered a trial or will be committed for trial. If an appellate Court alters the nature of sentence under Section 423(1)(b)(3) it cannot enhance the sentence so it must alter the nature of sentence either by reducing or maintaining it. If however the finding is altered under Section 423(1)(b)(2) the sentence must be maintained. It cannot be enhanced. Where an order of acquittal is to be converted into an order of conviction, it amounts to a reversal of the order. On the other hand, when the conviction under one section is altered to a conviction under some other section maintaining the sentence or reducing it, it amounts merely to an alteration of the finding and not to a reversal of the finding. The words 'alter the finding' in Section 423(1)(b)(2) also do not give an unlimited power to the appellate Court to change the finding to any that it considers suitable to the purpose. They must be read as subject to the other general provisions in the Code with the result that the power of alteration must be related to Sections 236, 237 and 238 and can operate only within the limits prescribed by those sections.

9. The Legislature has attached sanctity to an order of acquittal. The exact nature and importance of appeals against orders of acquittal, the previous law in India about such appeals, and the subsequent change in it in 1872 has been dealt with by me in Madhya Bharat Government v. Shri Dube MLR (1949) Cri 258 (FB), at pages 269-270. The word 'alter' as used in the Codes of 1861 and 1872 could not possibly have included the power to convert a finding of acquittal into one of conviction. The Legislature also could not have Intended to invest the appellate Courts (other than the High Court) with the power of converting a finding of acquittal into one of conviction. In my opinion, therefore, an order of acquittal cannot be set aside in any other manner except under Section 417 of the Code of Criminal Procedure. It cannot be set aside in an appeal filed by the accused against his conviction because to do so would amount to allowing an appeal which had not been filed or to an exercise of revisional powers contrary to Section 439(4). For these reasons I respectfully agree with the minority opinion of Mulla and Hamilton, JJ. in Zamir Qasim v. Emperor AIR 1944 All 137, and, with great respect, disagree with the majority opinion In this case and with the Full Bench decision in Bawa Singh v. Emperor AIR 1941 Lah 465. The majority opinion of the Full Bench of the Allahabad High Court held that an appellate Court is empowered under Section 423(1)(b)(2) to alter a finding of acquittal into one of conviction, but it refrained from expressing any opinion on the question whether a High Court can, while substituting a finding of conviction for a finding of acquittal, enhance the sentence by exercising the power given by Section 439. The Punjab High Court expressed the view that it can do so. It was held in this case that:

In its appellate jurisdiction the High Court can alter the finding to any that it considers suitable. As soon as it has done so, it can under the provisions of Section 439(C 11), in its revisional jurisdiction, enhance the sentence to any sentence it considers suitable. Consequently it is open to a High Court in an appeal from a conviction by a convict who had been charged under Section 304. Part I to alter the conviction from one under Section 304 Part I to one under Section 302, I.P.C., and then in the exercise of the powers conferred by Section 430(1) to enhance the sentence to one of death.

10. With very great respect, I venture to express my dissent from the above proposition. It will not be a legitimate exercise of power for the High Court by combining the two powers in a same case to convert a finding of acquittal into a finding of conviction under Section 423 and then to enhance the sentence under Section 439 and thus achieves by combining the two powers what it was prohibited to do so by exercising powers singly. The ruling of the Judicial Committee in Chunbidya v. Emperor 62 IA 36 : 57 All 156 : AIR 1935 PC 35 : 153 IC 936, referred to by Dalip Singh, J. in the Lahore case is not very relevant in this connection. Chunvidya and others had appealed to the High Court against their conviction for the offence of murder and sentence of transportation for life. On appeal to the High Court, the High Court under Section 439 gave notice to the accused to show cause why the sentence should not be enhanced and then ordered the petitioners to be sentenced to death instead of transportation for life. It was urged before the Privy Council in an application for special leave to appeal against the sentence of death that in as much as the case came before the High Court on an appeal, and in as much as under the provisions as to an appeal the High Court dealing with appeals has no power to enhance the sentence, the High Court had no power to resort to its further powers of revision which give it power to enhance the sentence. Their Lordships of the Judicial Committee, holding that it was a fallacious argument, observed:.the powers of revision are given to the High Court in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise Mimes to its knowledge. Their Lordships are clearly of opinion that when the High Court has before it on appeal a record of a criminal proceeding, the condition precedent is performed and the High Court can then, though the record has only come to its knowledge in the appellate proceedings proceed to exercise its revision powers if it chooses to do so.

11. From the above observations It will be quite clear that there was in that case no question of converting a finding of acquittal into one of conviction. It was a simple and straightforward case of dismissing the appeal and of enhancing sentence, a power specifically conferred by Section 439(1), Criminal Procedure Code. Under Section 423(1)(b), the High Court had as a Court of appeal dismissed the appeal and under Section 430(1), as a Court of revision, it had enhanced the sentence. It had not converted an acquittal into a conviction on an appeal against the conviction. So what the Privy Council did approve was not the exercise by a High Court of its combined powers as a mixed Court of appeal and revision, but the exercise by the High Court of its powers in appeal and its powers in revision in succession. This view was also reiterated in Emperor v. Dahu Raut AIR 1935 PC 89, in which their Lordships observed:

The powers conferred on the appellate Court under Section 423 appear to be as ample as the High Court would have on revision under Section 439, with the exception of the power to enhance the sentence, and if the appeal is before a High Court, and it is thought to be desirable, there is no reason why the accused should not be warned that at the hearing of the petition, he may be called on to show why the sentence should not be enhanced.

12. I may also briefly refer to the observations of their Lordships of the Judicial Committee in Kishan Singh v. Emperor 50 All 722 (PC), about the two cases (one of the Madras High Court and another of Allahabad High Court) referred to in their Lordships' decision.

13. In re Bali Reddi 37 Mad 119, five accused were challenged with rioting, armed with deadly weapons, and with having murdererd one person, offences punishable under Sections 148 and 302 of the Indian Penal Code. The Sessions Judge found that the accused not guilty of these offences, but guilty of offences under Sections 147 and 307 of the Indian Penal Code. The accused appealed against their conviction, and the Madras High Court, as a Court of appeal, gave them notice to show cause why they should not be convicted and be sentenced for the offence of murder. After hearing arguments the Madras High Court altered the finding to one of murder punishable under Section 302 and in lieu of the sentence imposed by the Sessions Judge the High Court sentenced each of the five accused to transportation for life. The view held by the High Court was that Section 423 gave powers to the High Court when hearing an appeal against a conviction to alter the finding and then as a Court of revision under Section 439 they are given power to enhance the sentence so as to make it appropriate to the altered finding. The High Court further observed:

Sub-section (4) of Section 439. which enacts that 'nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction' is not, if rightly construed, inconsistent with this view. The prohibition in Sub-section (4) refers to a case where the trial has ended in a complete acquittal not to a case like the present, where the trial has ended in a conviction but where the Court has wrongly applied the law or has wrongly found some fact not proved, and has. in consequence, held that the conviction should be under some section of the Code other than the section properly applicable as any other construction would be inconsistent with the power to 'alter the finding' given to the Court as Court of Revision by virtue of its power to exercise the power conferred on a Court of Appeal by Section 423(1). Clause (b), and the terms of a statute should not be so construed as to involve an inconsistency between its different parts. This view is borne out by the language of Section 423(1), Clause (a), which speaks of 'an order of acquittal' in the sense of an order finding the accused not guilty on any of the charges framed against him, when contrasted with the language of Clause (b) which provides for the Appellate Court altering the finding where the accused has been convicted by the first Court on certain charges but not on other charges.

14. Their Lordships' attention was drawn to the above observations of the Madras High Court and their Lordships' opinion thereon was expressed in the following words:

It is not necessary on the present occasion for their Lordships to express any opinion whether the facts of the cited case would justify the decision at which the learned Judges arrived. Their Lordships, however, do think it necessary to say that if learned Judges of the High Court of Madras intended to hold that the prohibition in Section 439, Sub-section 4, refers only to the case 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. 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 in the cited case attached to the sub-section.

The correctness of the Madras decision was clearly doubted by their Lordships of the Privy Council in the above observations.

15. In the second case Emperor v. Sheodarshan Singh 44 All 332, an accused person was charged with both murder arid culpable homicide not amounting to murder. He was acquitted on the former charge and convicted on the latter. On a perusal of the Sessions statement, notice was sent to the accused to show cause why he should not be convicted of murder and punished accordingly. On return of the notice, the High Court held that it had no power except through the medium of an appeal on behalf of the Local Government, to convert the acquittal into a conivction. The learned Judges in giving judgment said as follows:

Sheo Darshan Singh was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.

The above extract was quoted in Kishan Singh v. Emperor 50 All 722 (PC) and their Lordships observed:

Their Lordships are of opinion that the above is a correct statement of law. It is indeed no more than a repetition of the provisions of the material sections of the Code of Criminal Procedure.

16. From the above observations of their Lordships of the Judicial Committee on the Madras and the Allahabad cases, it is quite clear that their Lordships emphasised that where the Court below has either acquitted an accused expressly or by necessary implication, then, unless there is an appeal from acquittal, the finding of acquittal cannot be converted into that of conviction. These observations are general and are very important and cannot be sidetracked by stating that they refer only to a case in revision and should be deemed to be limited to the revisional jurisdiction of the High Court.

17. Upon a careful examination of these authorities, I am of opinion that Clause (b) of Section 423(1), Criminal Procedure Code does not apply to a case of acquittal, but applies only to a ease of conviction and only Clause (a) applies to a case of acquittal. If the appellate powers of the Court are to be exercised to convert an acquittal into a conviction, then they can be exercised only In an appeal against an acquittal under Section 423(1)(a) and not on appeal against a conviction under Section 423(1)(b). The Division Bench of this Court in the case before us, therefore, was not empowered to alter the conviction of the respondents from one under Section 304 to that under Section 302, Indian Penal Code, and a Government Appeal under Section 417, Criminal Procedure Code was necessary against the order of the Sessions Judge acquitting the respondents of the charges under Sections 392, 394 and 302, Indian Penal Code.

13. The question then arises, where an appeal by the accused against conviction has been dismissed by an appellate Bench of the High Court, and after the dismissal of the appeal filed under Section 423(1)(b), if an appeal is filed by the Government under Section 417 of the Code of Criminal Procedure is such an appeal competent?

19. It is contended by Mr. Sanghi, learned Counsel for the respondents, that this Court has, in the circumstances, no legal power to interfere, as it cannot review or revise the judgment already delivered by a Division Bench of this Court on 5.12.49. Reliance is placed on the provisions of Section 430. Criminal Procedure Code which says that judgments and orders passed by an appellate Court upon appeal shall be final except in the cases provided for in Section 417 and Chapter 32. Section 417 allows an appeal against the order of acquittal and Chapter 32 permits interference, on revision by the High Court, with an appellate judgment of the lower Court. The proviso then means that judgment of the appellate Court can be varied by the High Court in the manner specified in Section 417 and Chapter 32. As Niyogi, A.J.C. observed in Full Bench case Mohammadi Gul Rohilla v. Emperor AIR 1932 Nag 121:

Section 430 contemplates an order of an appellate Court subordinate to the High Court and the proviso does not affect a High Court's judgment, since there is no appeal under Section 417, against a judgment of a High Court. The High Court's judgment or order must therefore be regarded as final.

20. Our attention is also drawn to the provisions of Section 369 which reads as follows:

Save as otherwise provided by this Code or by any other law for the time being in force or in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical error.

21. The section has been subjected to the other provisions of the Criminal Procedure Code (e.g. 395, 484, Section 561 A etc.). Ordinarily when once a judgment has been signed it is final and there is no power left in the Court to re-open the case. The Court becomes functus officio and cannot rehear it.

22. Even apart from these provisions it has been held from a very early time that the High Court has no power to review or revise an order passed in a criminal matter. In Queen v. Godai Raout 5 WR (Cr) 61, a Five Judges Full Bench of the Calcutta High Court, presided aver by Sir Barnes Peacock C.J., after referring to Section 73, Regulation 9 of 1793, Regulation 14 of 1810 and Act 25 of 1861 came to the conclusion that the High Court cannot entertain, an application to review a judgment passed by it on appeal in a criminal case. The learned Chief Justice observed at page 63:

The Code of Criminal Procedure does not contain any section expressly authorising a review of judgment in a criminal case after the judgment had been recorded. The Code of Criminal Procedure was passed after the Code of Civil Procedure. The latter contains a section expressly authorising a review of judgment, but the former contains no corresponding section. From this it may reasonably be inferred that the Legislature did not intend to confer in criminal cases a power similar to that which they had given in civil cases.

23. The Code of Criminal Procedure has since then been amended a number of times and the Legislature has not chosen to give a power of review to any Court in a criminal case. This is also clear from the provisions of Section 369, as amended by Section 101 of Act XVIII (18) of 1923, which limits the powers of a Court to review its own orders except under certian circumstances. Queen Empress v. Durgacharan 7 All 672; In the matter of F.W. Gibbons 14 Cal 42; Queen Empress v. C.P. Fox 10 Bom 176 (FB); Queen Empress v. Ganesh Ramkrishana 23 Bom 50 and Kunhammad Haj v. Emperor 46 Mad 382, are authorities for the proposition that no Court has power to review its judgment pronounced in a criminal case.

24. If the Division Bench's judgment is final and not open to review, it is argued, how the Government appeal under Section 417 can be entertained? If it is heard on merits, it might lead to a disturbance so far as the finality of the judgment is concerned. The difficulty arises from the difference in the period of limitation prescribed for filing appeals by the accused and by the State. In the case of the accused it is 30 days while the limitation for the State to appeal against acquittal is six months. It is possible that an appeal by an accused person may be heard and decided before the State has determined whether to prefer an appeal or not. Where there has been an acquittal on a graver charge, both State and accused have a right of appeal. If the appeal of accused person is heard and decided before the State appeals under Section 417, the decision is final under Section 430. Under the circumstances the State appeal is barred and cannot be entertained. This was the opinion of the Division Bench in Emperor v. Modkia AIR 1932 Nag 73.

25. With this view I respectfully agree. But in this case it was also held that though there can be no appeal against the acquittal after the appeal against the conviction has been heard and decided, there can be an application for enhancement of the sentence under Section 439 of the Code. With great respect, it is difficult for me to accept this proposition as correct. I cannot see any difference between filing of a memorandum of appeal under Section 417 and filing a revision petition for enhancement of sentence under Section 439. The question in each case is whether the decision of the Bench of the High Court while dismissing an appeal against conviction is final or not. By the word 'final' I understand that nothing more remains to be done by the Court pronouncing the judgment and the appeal is decided one way or the other in its entirety. If the High Court while dismissing the appeal of the accused suo motu issues a notice to the accused to show cause why his sentence should not be enhanced then I would take it that the decision dismissing the appeal was not final so far as his sentence was concerned. It was of course final so far as his conviction was concerned. Appeal against conviction is always first heard and decided, and after the conviction is maintained the prisoner is called upon to show cause why his sentence should not be enhanced. It stands to reason that sentence cannot be enhanced if the appeal is to be allowed and the accused person is to be acquitted so it is only after the dismissal of the appeal against conviction that the question for enhancement of sentence can be considered. Whether the dismissal of the appeal against conviction has been recorded or is still in the mind of the Judge or the Judges composing the Bench is immaterial. The trend of the judgment or the record must show that the judgment is not final as regards the sentence.

26. It was held in Mangal Narain v. Emperor AIR 1925 Bom 268, that it is not desirable, if the appeal against a conviction is admitted, to issue a notice at the same time under Section 439 to enhance the sentence. Crump J. observed that if it is issued before the appeal has been dismissed it may confound two things which should be kept separate, namely the question whether the conviction is right or not and the further question whether the sentence imposed is adequate or not. In Pandurang v. Emperor AIR 1934 Bom 198, Beaumont C.J. delivering the judgment of the Division Bench remarked on the above observations at page 199:

It is to my mind a novelty to suggest that these two things are so divorced that they ought to be dealt with on separate occasion.

Fourteen years later in Kumar Singh Chhajor v. Emperor AIR 1946 PC 169 Sir John Beaumont himself delivering the judgment of the Board observed at page 173:

The passing of sentence in a criminal trial is a distinct step which follows conviction; it is often postponed to a later date and may be based on further evidence relevant to sentence but irrelevant to guilt.

27. These observations are important and should be takers into consideration while disposing of revision petition for enhancement of sentence. In Satate v. Shankar Criminal Revision No. 41 of 1950, Indore, the question for determination before a Division Bench of this Court was: if an appeal against his conviction and the sentence passed upon him preferred by a convicted person is disposed of, is the High Court powerless to take action under Section 439 and enhance the sentence? My Lord the Chief Justice (Shinde J. concurring) observed:

My answer to this query is that it must depend upon the order passed in appeal. The accused person may appeal either against conviction or against the sentence passed upon him or against both. If it is an appeal against his conviction alone and the question of sentence is not considered, it appears to me that there is nothing in the law which would preclude the High Court from subsequently enhancing the sentence passed by the lower Court in exercise of the power conferred upon it under Section 439 of the Criminal Procedure Code. On the other hand, if the question of sentence has been considered in disposing of the appeal and has once been determined, for obvious reasons no question of enhancing it subsequently can arise. We can consider a third contingency, viz., that though the appeal is preferred both against the appellant's conviction as well as the sentence passed upon him by the lower Court the High Court may dismiss the appeal as regards his conviction without finally giving a decision on the question of sentence. This may happen for instance if on perusal of the judgment at the time of admitting the appeal the High Court considers that the sentence passed should be enhanced and issues a notice to that effect but the appeal comes up for hearing before the notice of enhancement of the sentence is served upon the convicted person. In such a case it will be that though the appeal as regards the conviction of the appellant is disposed of the question whether the sentence passed upon him should or should not be interfered with remains open. In a case like this there does not appear to be anything which would debar the High Court, from enhancing the sentence when the appellant is given an opportunity to show cause against the notice issued to him.

28. These observations have my respectful concurrence. I wish to add only this that if an appeal against conviction is dismissed, then, unless there is anything contrary in the judgment itself, I would take it that the appellate Court confirmed the conclusions of the trial Court on facts which constituted the offence, for which the accused was convicted confirmed the conviction as well as the sentence, and also confirmed the conclusion of the trial Court that on those facts the offence fell within a particular section of the statute. With this background I now pass on to consider the majority opinion of the Full Bench of the Nagpur judicial Commissioner's Court in Mohammadi Gul Rohilla v. Emperor AIR 1932 Nag 121, which overruled Emperor v. Modkia AIR 1932 Nag 73. and held Niyogi A.J.C. dissenting that an appeal under Section 417 is competent although an appeal preferred by the accused against his conviction has already been heard and decided by the High Court. Mecnair J.C. gave the following reasons for his conclusion:

The view that an appeal against the acquittal is competent after an appeal against the conviction is dismissed is supported by two considerations. In the first place, the appeal against the conviction may have been summarily dismissed and elementary principles of justice demand that the Local Government should not be precluded from appealing by an order passed behind its back. In the next place, had the conviction and acquittal dealt with two separate offences it seems clear that a judgment passed In appeal against the conviction would not prevent consideration of the appeal against the acquittal, and T think it impossible to interpret Section 430 as allowing such an appeal but allowing no appeal when the conviction is of a minor offence.

The learned Judicial Commissioner then added:

I do not think any difficulty is involved in the fact that if the appeal against the acquittal succeeds, there will be two convictions: one for the minor offence and one for the major. A person who is guilty of the major offence is guilty of the minor offence. The substitution of punishment for the major offence for a less severe punishment for the minor offence does not involve variation of the conviction and sentence for the minor offence.

He further observed:

An acquittal on the graver charge is not directly inconsistent with the conviction on the minor charge. Section 430 does not, in my opinion, make the findings on which the previous order was passed final.

29. Subhedar A.J.C. who was a member of the Bench which decided Emperor v. Modkia AIR 1932 Nag 73, observed that it is against the fundamental principle of criminal jurisprudence to convict a person of two distinct offences on the same set of facts but agreed with the Judicial Commissioner that if the Government prefers an appeal against the acquittal for the major offence, after the appeal by the convict against his conviction for the minor offence is dismissed, it is open to the accused to question the propriety of his previous conviction and it is open to the appellate Court to give effect to the plea by dismissing the Government appeal and making suitable recommendation to the Local Government, if the Court came to the conclusion that, on the facts established, the convict was not guilty of any offence at all; or, in the alternative by accepting the Government appeal and substituting a conviction for the major offence.

30. Niyogi, A.J.C. differed from this view and on the reasoning advanced in this case by him I entertain no doubt that his conclusion is well founded. He was of opinion that the High Court in such cases dealing with appeal against acquittal cannot exercise all the powers denned in Clause (a) of Section 423(1). The learned Additional Judicial Commissioner was further of opinion that the previous judgment being final cannot be altered in subsequent appeal under Section 417 and Section 403, Criminal Procedure Code debars such a trial; and the very fact that the learned Judicial Commissioner found it necessary to invoke powers of the Government under Section 401 is an argument to prove the incompetence of the appellate Court to hear and determine the appeal. He added that any circumstance which takes away or restricts the power to enforce its orders must affect the competency of the Court. It must therefore follow that any appeal filed in such circumstances will turn out to be futile and the appeal itself will be incompetent. The Legislature could not have intended to give a right of appeal in case where the appellate Court which is supposed to hear the appeal is unable to exercise its powers vested in it by law and enforce its own orders, by reason of another judgment of the same Court having become final and effective.

31. For reasons already stated above. I respectfully agree with this view. It is true that the State has a right of appeal under Section 417 and can wait for six months to file it but the State must also know that if the convict's appeal is dismissed in the meanwhile that decision being final and effective cannot be revised or reviewed and the State appeal will become infructuous. The only thing that can be done to avoid this anomaly is for the State to file appeal against acquittal before the decision of the Convict's appeal by the High Court, or before the appeal is heard; or, the Government Advocate should move the High Court for adjournment of the Convict's appeal till the appeal against acquittal be preferred by the State, As the appeals against acquittal are 10 be filed by the Government only in cases of grave miscarriage of justice, there would be no difficulty for the Government to adopt such a course, for as soon as the accused is acquitted by the trial Court of a major offence the Prosecuting agency can take immediate necessary action for filing an appeal against acquittal and the Government can be informed in time beore the appeal against conviction comes up for regular hearing. In such appeals against conviction a notice is always given to the Government Advocate and I do not think the State can have any legitimate grievance If an appeal cannot be filed before arguments are heard in accused's appeal against conviction.

32. The real difficulty however arises when the appeal against conviction is dismissed, without issuing notice to the Government Advocate under Section 421 of the Criminal Procedure Code which runs as follows:

1. On receiving the petition and copy under Section 419 or Section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering it may dismiss the appeal summarily.

Provided no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.

2. Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so.

33. I have always been of the opinion that Section 421 is an exception to the general principles of Criminal law and Criminal Jurisprudence. It is obvious that an order can be passed under Section 421 without hearing the appellant. There appears to be some difference between an order passed under this section and that passed under Section 423(1)(b). Whether there is any real difference between the two, and. whether an order passed under Section 421 can be set aside, are questions which necessitate careful study of the scope of the section, the provisions contained therein, and the case law bearing on them. Section 421 deals with appeals presented either under Section 419 or under Section 420. Section 419 provides that every criminal appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall be accompanied by a copy of the judgment of the trial Court. Section 420 deals with appeals of convict persons who are in Jail. They are to present their petitions for appeal to the Officer-in-charge of Jail, who is to forward such petitions to the proper appellate Court. The word 'Summarily' ordinarily means in an informal manner and without the delay of formal proceedings. The Judge is entitled to reject the appeal without any formality at all and without the formality of either a recorded judgment or reasons of any description: RAS Behari Das v. Bal. Gopal Singh 21 Cal 92. The appellate Court is not bound even to call for the record and there is nothing to prevent even those appeals being rejected summarily wherein substantial points of law have been taken or where the judgment under consideration is a long and intricate one requiring careful consideration. A Court of criminal appeal when dismissing an appeal summarily is not bound to write a judgment as defined in Section 367. The High Courts have however advised, and, in some cases, ordered the lower appellate Courts to give, as concisely as possible, the main reasons of rejection of appeal summarily Abdul Latif v. Ahmed AIR 1933 Cal 515; Jagnarain Dubey v. Ghinhu Dubey AIR 1935 Pat 32; Ganesh Ram v. Gyanchand AIR 1920 Pat 522; Thakuri v. Emperor AIR 1933 Pat 160; Brij Mohan LAL v. Emperor AIR 1925 Oudh 290 and Ram Rao v. Emperor AIR 1917 Nag 203 (2). But the discretion of an appellate Court remains unfettered in this respect and where the only order passed was 'rejected summarily' it has been held that it was a judgment. Then an order of a High Court in its criminal jurisdiction is ordinarily final and does not therefore require the statement of any reason Kuldip Das v. Emperor AIR 1933 Pat 38 and Nand Lal Chunilal v. Eemperor AIR 1946 Bom 276 (FB). In the Bombay case Nand Lal Chunilal v. Emperor the facts were that a reference was made by the Sessions Judge under Section 438 recommending that a particular order of Additional District Magistrate should be set aside and, thereon a Division Bench, without issuing notice passed an order, viz. 'No order on this reference.' The applicant at whose instance the Sessions Judge made the reference then came in revision to the High Court in the same matter. The question before the Full Bench (consisting of Divatia, Sen and Rajadhyaksha, JJ.) was; whether the order 'No order on this reference' was a judgment within the meaning of Section 369. The Full Bench held that as there is no distinction between an order and a judgment of a High Court disposing of a proceeding before it, the said order was a 'judgment' under Section 369 and as such cannot be altered or reviewed. In the absence of anything to show that the order was passed on a preliminary ground without going into the merits of the point raised in the reference it must be presumed that the order was a final order and amounts to a judgment.

34. The proviso to Section 421 of course lays down that no appeal under Section 421 shall be dismissed without giving to the appellant or his pleader an opportunity of being heard. But there is nothing in the section to indicate that the Legislature wanted that prisoners should also be afforded the same opportunity. In Jalam Bharat Singh v. Emperor AIR 1938 Bom 279. Beaumont, C.J. was of opinion that the general rule that no person should be condemned unheard cannot apply to an appeal the right to which is the creation of the statute and so the appellate Court is entitled to dismiss the appeal summarily without hearing the accused, the prisoner having no right to insist on being heard. Justice Wassoodew agreed with this opinion and observed:

The rule 'audi alteram partem' (hear the other side) cannot be extended without qualification to criminal appeals presented by the convict from jail under Section 420, Criminal Procedure Code. That rule is followed in criminal trials, it being incorporated in the statute itself as an indispensable requirement of justice. It is true that in judicial proceedings a party is ordinarily given an opportunity of hearing what is urged against him. But it is equally true that the right of appeal is essentially a statutory right and the provisions of the statute conferring that right, in so far as it lays down the procedure to be followed in the exercise of that right even in the matter of audience, have necessarily to be observed.

35. The absence of any reason in the orders of summary dismissal which may be passed without going through the record and without hearing the appellant or his counsel is a factor which is likely to cause miscarriage of justice. It is likely that some important point of law which may have remained obscure in the trial Court's judgment but which may have importance in the case might be overlooked by the appellate Court whereas the appellant or his vakil, if he appears, may be able to urge cogent and sufficient reasons which may induce the Court to issue notice under Section 422. The convict appellant is bound to suffer on account of this provision which deprives him of an opportunity to come or to send his vakil before the Court. In order to relax the rigour of law, High Courts have adopted some Rules in order that the convict appellant may be able to arrange for proper representation of his case before the Judge. In Kunhammad Haji v. Emperor 46 Mad 382 at p. 400, Justice Devadoss has quoted Rule 50 of Criminal Rules of Practice which is as follows:

No appeal shall be summarily rejected until seven days have elapsed after its receipt by the appellate Court. In forwarding such an appeal the Officer-in-charge of Jail shall invariably certify that the appellant has been informed that if he intends to appoint a pleader an appearance must be put in within seven days from the date on which the petition may reach the appellate Court.

So in Madras seven days time is allowed before a jail appeal is circulated to the Judses and a convict appellant has some opportunity of engaging counsel if he wishes to do so. In Jodha v. Emperor 15 Luck 662 : AIR 1940 Oudh 369, it has been mentioned that in former Oudh Chief Court jail appeals were not submitted to the Judges for disposal until 15 days had elapsed from their receipt in the office of the Court. This interval added to the time required for obtaining a copy of the judgment of the trial Court was considered sufficient to avoid hardship. In my opinion, such rules may be adopted in our High Court also. In Allahabad the dismissal of the jail appeal was deemed only to be a. provisional dismissal and the fixing of the seal to the decision of the High Court was delayed till the period of limitation was over. Lachhamn Chamar v. Emperor AIR 1934 All 988 (1). In 15 Luck 662 : AIR 1940 Oudh 369, the Oudh Chief Court observed that this practice which was then prevailing in that Court also had no justification in law, and, jail appeals as soon as a Judge or a Bench of Judges had decided them, and signed and dated their orders, were decided appeals. It was held that in such cases a subsequent appeal filed through a counsel could not be entertained. In Khaili v. Emperor 44 All 759 : AIR 1922 All 480 and in Ram Autar v. Emperor AIR 1924 Oudh 425 (1), a similar view had been held.

36. These cases were decided on the assumption that orders rejecting appeals summarily under Section 421 are 'judgments' and cannot be altered. There are, however, some old cases which took a contrary view. In 1906 in Emperor v. Nga Sein Gyi 4 Cri LJ 284 (UB), a Judge on the Single Bench of the Court of Judicial Commissioner, Upper Burma, observed:

The provisions of the Code relating to judgments in original proceedings are extended to proceedings in appeal by Section 424. On the analogy of the original proceedings it is reasonable to hold that an appeal is not heard till notice has been given to the respondent and he has had the opportunity of opposing the appeal and that a judgment is only required when an appeal is heard. It would follow I think that an order dismissing an appeal summarily is not a judgment.

37. The head-note of Empress v. Pati Ram 6 C.P.L.R. Cr. 24, is as follows:

An order of summary rejection of an appeal under the provisions of Section 421, Criminal Procedure Code does not amount to judgment and Section 424 has no application to such an order. A judgment under Section 424 of the Code implies a trial. The essential difference between the rejection of an appeal under Section 421 and its dismissal under Section 423 is that, in the latter case, the appeal is disposed of after trial, whereas in the former, the Court, by summarily rejecting it. refuses to try it at all.

38. Both these decisions appear to have been influenced by principles of civil law and appear to have ignored the fact that Section 421 is an exception even to the general principles of criminal law and should be construed on that basis.

39. The question then arises; what is a 'judgment' in a criminal case? and, can an order rejecting an appeal summarily come within the purview of that term?

The word 'judgment' has not been defined in the Indian Penal Code or the Indian Criminal Procedure Code. Attempts have however been made in several civil and criminal rulings to define it. In Damu v. Shridhar 21 Cal 121, it has been stated that a judgment means expression of opinion of the Judge in a trial after due consideration of the evidence. In Shahu v. Emperor AIR 1935 Sind 84, a passage from the Law Dictionary by Morley and Whitalay has been quoted to show that 'judgment' means 'sentence or order of the Court in civil or criminal proceedings.' Whatever it may mean ordinarily, I am clear in my mind that the connotation of the term 'judgment' in a civil ease will differ from that in a criminal case. From a perusal of paragraphs 260 to 264. in Volume 9 of Halsbury's Laws of England (Hailsham Edition) it will be obvious that in England judgment is equivalent to a judgment of conviction or acquittal and is distinct from other orders in a criminal case. In Emperor v. Maheshwara Kondaya 31 Mad 543, it was observed that a judgment is intended to indicate the final order in a trial terminating in either the conviction or acquittal of the accused and therefore it was held in that case that an order of discharge is not a judgment. In construing the words 'judgment, decere, or final order' in Section 205(1), Government of India Act of 1935 In DR. Hori Ram Singh v. Emperor 1939 FLJ 153 : AIR 1939 FC 43, his Lordship Sir Sulaiman in his judgment reviewed the entire Indian and English case law bearing on the interpretation of the word 'judgment' and after referring to Halsbury, Vol. 9, paras 260-264 and Sections 263, 264, 305, 309, 367, 370, 404, 415A and 423 of the Indian Criminal Procedure Code came to the conclusion that 'judgment' in this Code means only a judgment of conviction or acquittal, and that neither under the English nor the Indian Law the term 'judgment' in a criminal case includes an interlocutory order (at p. 163 of 1939 FLJ 153 and at page 48 (1) of AIR 1939 FC 43.

40. If an order of conviction is a judgment, there can be no doubt that an order, in an appeal, confirming an order of conviction must also be a judgment, and whether the order is passed summarily or after hearing the parties is not material. In this view of the matter an order passed under Section 421 is a 'judgment' and according to Section 369 it cannot be altered except for correcting a Clerical error. In Queen Empress v. Bhimappa 19 Bom 732, this view had been adopted. In this case a Sessions Judge had dismissed an appeal summarily on the ground that it was barred by limitation. On a subsequent application by the accused, the Judge admitted the appeal & acquitted him. The High Court sent for the record in the exercise of its revisional jurisdiction and held that the order of acquittal was ultra vires under Section 430 of Act X of 1882 and the order dismissing the appeal as time barred was final and was not open to review. It was suggested in the arguments that the words 'no sufficient ground for interfering' in Section 421 imply an order passed on the merits and the order passed by the Sessions Judge rejecting the appeal as time barred should be distinguished as a dismissal under Section 4 of the Limitation Act (Act 15 of 1877) and should not be taken to have been passed on merits and thus the previous order was open to review by the Sessions Judge. On this argument the Division Bench (Jardine and Ranade, JJ.) observed:

On this point we are aware of no reported authority; but after consideration, we decline to import into the Code a refinement which would seriously impair the finality of criminal judgments.

41. In Shahu v. Emperor 155 Ind Cas 736 : AIR 1935 Sind 84, before a Full Bench of the Sind Judicial Commissioner's Court, the following questions of law came up for determination: (1) Whether an order under Section 421 dismissing an appeal filed under Section 419 is final? (2) Can it be vacated under Section 561A? Rupchand Bilaram, A.J.C. delivering the Full Bench judgment observed that Section 421 imposes two distinct conditions which must be fulfilled before a Court of competent jurisdiction summarily dismisses an appeal. The first condition is that the Court must apply its mind to the merits of the case and come to a conclution that the order appealed against is one which should not be disturbed. The Court cannot refuse to apply its mind to the merits of the case merely and solely because the appellant or his advocate has failed to appear. The second condition is, that where an appeal has been presented under Section 419 the Court is bound to afford to the appellant, or if he is represented, to his pleader, a reasonable opportunity of being heard. If both these conditions are fulfilled, then the order passed by a Bench is a perfectly valid order and the order cannot be reviewed. If either of the conditions mentioned above is not fulfilled the judgment given by the Court is 'prima facie' defective and may be reviewed 'ex debito justitiae.' Whether both or either of these conditions are fulfilled in any particular case or not, are questions of fact and their decision must depend upon the facts of the case. Generally speaking, there is a presumption in favour of the first condition having been complied with. An order under Section 421 cannot be vacated under Section 561A unless it is proved that either of the conditions precedent to the passing of the order as laid down by Section 421 has not been fulfilled. It is obvious that the burden of proving that either of the conditions has not been complied with lies heavily on the person challenging the finality of the order.

42. In Dwarka Nath v. Beni Madhab 28 Cal 652 and Mir Ahwad Hossein v. MD. Askri 29 Cal 726, it was laid down that a District Magistrate who had ordered the dismissal of a criminal appeal, merely by reason of the non-appearance of the appellant, is competent to set aside such order and thereafter to hear and decide the appeal according to law. This view was also approved by Stanyon, A.J.C. Ratanchand v. Emperor 9 Cri LJ 553 (Nag), when he remarked that the order of dismissal in default was one foreign to the exercise of criminal appellate jurisdiction and ultra vires. In Kunhammad Haji v. Emperor 46 Mad 382 : AIR 1923 Mad 426 (DB), Devadoss J. was of opinion that when an appeal is dismissed for default of appearance there is no decision on the merits and there is no proper disposal of it according to law and the Court may rehear it. The order of dismissal for default of appearance is no judgment at all and the order is tantamount to an adjournment of the case till some one appears and moves the Court to hear him. In Gulab Das v. Emperor AIR 1935 Pat 460. Fazl Ali, J. also observed that where the appellants do not appear to support the appeal, the appellate Court should consider whether there is sufficient ground for interfering which would imply judicial consideration of the appeal on the merits. In Rajjab Ali v. Emperor 46 Cal 60, the summary dismissal for default of appearance was set aside and in Muhammad Sadiq v. Emperor AIR 1925 Lah 355, the order dismissing the appeal, without giving the appellant or his pleader a reasonable opportunity of being heard in support of the same, was held to have been made without jurisdiction. It was further added that in such cases the Court has inherent power to make an order that the appeal should be reheard after giving the appellant or his pleader a reasonable opportunity of being heard in support of the same. It is no use discussing here whether an order to the prejudice of an accused without affording him an opportunity of being heard is null and void 'ab initio', as being one passed without jurisdiction In re: Tadi Somu Naidu 47 Mad 428, or, is only voidable at the option of the appellant. In Chandrika v. Rex 1949 DLR (All LB) 175 : AIR 1949 All 176, Seth, J. seems to have taken a reasonable view in explaining that in such cases it is preferable to found the jurisdiction of a High Court on the basis of inherent powers preserved to it under Section 561A rather than on the basis that the previous judgment is void 'ab inttio.'

43. A careful examination of the provisions of Section 421 and the weight of authority is sufficient to lead me to conclude that only in the above case (i.e. where an order to the prejudice of an accused is made without affording him an opportunity of being heard as for instance where a case was posted on a day anterior to that fixed in the notice to the accused) the High Court can vacate its summary order passed under Section 421 for re-hearing the case, though it will not amount to reviewing a previous judgment. Even this will be possible only in the case of appeals presented under Section 419 and that too only at the instance of the accused-appellants. In no other case can an order passed under Section 421 be vacated or reviewed or revised. The order passed under Section 421 is definitely a judgment and cannot be altered. It is as final and effective as a decision made under Section 423(1)(b) after hearing the arguments of the appellant and the Government-Advocate.

44. I am fortified further in this view by two rulings, one of the Punjab and another of the Bombay High Court. In Emperor v. Dhannalal AIR 1929 Lah 797 at p. 800, Addison J. observed (Coldstream J. concurring):

There appears to be no distinction between dismissing a revision petition in 'limine' or after notice. The judgment is in either case an effective and final judgment of the Court. In this respect there is no difference between a revision petition and a memorandum of appeal.

In Emperor v. Koya Pertab AIR 1930 Bom 593 (2) the appeal of an accused was summarily rejected under Section 421. While dismissing the appeal, the appellate Court directed that notice should be given to the accused to show cause why the sentence on him should not be enhanced. The accused argued that he had a right to avail of the provisions contained in Section 439(6) and desired the appellate Court to go into the merits. Beaumount C.J. rejecting the contention observed:

The point has already been dealt with by this Court in the case of Empror v. Jiravau AIR 1926 Bom 555, and the only distinction between that case and the present one is that that case had been heard on the merits and not summarily dismissed. But in my view that distinction is not one of principle.

Madgavkar J. agreed and added:

As a party to the decision in Emperor v. Jorabhai I would add that the reasoning there is as appropriate to criminal appeals dismissed summarily as to those dismissed after admission and I am unable therefore to accept the argument for the appellant, which seeks to distinguish the case on that ground.

45. It is contended by the learned Government-Advocate that if this view is adopted it will put the State to a very great disadvantage. Murder cases may be imagined resulting in the conviction of the accused only for a minor offence like 323, 324 or 325 and the Government appeal under Section 417 against the order acquitting the accused for a major offence may become infructuous if the appeal against conviction for a minor offence is rejected summarily before the Government appeal is filed. This point of view finds reinforcement in the judgment of Macnair J.C. at page 123, Col. 1 in Mahomed Gul Rohilla v. Emperor AIR 1932 Nag 121 FB where he pointed that 'elementary principles of justice demand that the Local Government should not be precluded from appealing by an order passed behind its back'. As stated in para. 28 above, this was one of the two main considerations which induced the learned Judicial Commissioner to take the view that an appeal against the acquittal is competent after an appeal against the conviction is dismissed. I have already explained above that the provision of summary dismissal contained in Section 421 is an exception to the general principles of criminal law; and even an important principle which governs the mode in which justice is administered in our Courts viz. 'No man should be condemned unheard' cannot be extended to jail appeals. The right of appeal is the creation of statute and the provisions of the statute governing the procedure in exercising that right have necessarily to be observed. In a criminal matter, then the question is not between party and party; and the principles of civil law relating to 'setting aside of an ex parte decree' cannot be imported into the domain of Indian Criminal Procedure Code. It is then contended that in this view Section 421 might render the provisions of Section 417 nugatory. I do not think so. The right of appeal under Section 417 remains untouched; it affects only the period of six months given by Article 157 of the Limitation Act for filing Government appeals, and demands from the executive Government extra care and alertness in preferring appeals against acquittal before a summary appeal against the conviction is dismissed. I am not impressed by the 'argumentum ab inconvenienti' that this may lead to serious consequences in important cases. As observed by the Privy Council at page 249 of Pakala Narayanaswami v. Emperor 18 Pat 234 : AIR 1939 PC 47, if the words of the statute are clear,

it is inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interest of the prosecution or the accused.

If the section leads to inconvenience the remedy lies with the Legislature.

46. For reasons stated above, I hold that once an appeal preferred by the accused against his conviction of a minor offence is dismissed, either summarily or after hearing arguments, the High Court cannot alter or review the judgment and the Government Appeal against an order of acquitting the accused of a major offence will then become futile by reason of the previous judgment having become final and effective.

47. I am, therefore, of opinion that this appeal against the order of the Sessions Judge acquitting the respondents of an offence under Section 302 be dismissed, the judgment of a Division Bench of this Court of '5.12.1949' in Criminal Appeal No. '37 of 1949' having become final and effective.

48. The appeal against the order of the Sessions Judge acquitting the. respondents of. offences under Section 392 and Section 394 is competent. Taking away of cattle by the accused from the jungle where they were grazing was a prelude to the quarrel which culminated in the death of the deceased. Though inter-connected as having supplied a motive, the incident is separate and the offence is separate; and, if the Government-Advocate thinks, as mentioned by him in para. 2 of his petition of appeal, that on the facts held proved the accused can be convicted at least under Section 379, he can press this point if despite the dismissal of appeal against acquittal under Section 302, he desires to do so.

49. KAUL C.J.: By an order dated 27.7.1950 passed by a Division Bench of which I and Mr. Justice Mehta were members appeal No. 100 of 1949 preferred by the Government Advocate under Section 417, Criminal Procedure Code against the order dated 22.6.1949 passed by the Sessions Judge of Dhar acquitting the respondents of charges under Sections 302, 394 and 397, I.P.C. was referred to a Pull Bench.

50. Kalu and Bhuwan were tried by the Sessions Judge of Dhar for offences under Sections 302, 394 and 397, I.P.C. Kalu was convicted for an offence under Section 304 (latter part) for causing the death of one Onkar and sentenced to three years' rigorous imprisonment. He was further convicted under Section 324, I.P.C. for causing hurt to Bhagirath and sentenced to rigorous imprisonment for six months for that offence. The sentences passed were to run consecutively. Bhuwan was also convicted for an offence under Section 304 (latter part), I.P.C. for causing the death of Onkar and sentenced to three years' rigorous imprisonment. They appealed against the order passed by the learned Sessions Judge. This appeal was disposed of by a judgment of Rege J. with which Amarnath Sehgal J. agreed on 5.12.1949. The last para. of the judgment of Rege J. by which the appeal was dismissed reads thus:

I would therefore, maintain the convictions and dismiss the appeal. The learned Government-Advocate made a strong plea for alteration of the conviction to one under Section 302 of the Penal Code. The Government has not filed an appeal from the acquittal under Section 302 although such an appeal would be within time, and in the circumstances, I would not think of altering the conviction though I agree, this Court has the power in a proper case to do so.

Subsequent to the pronouncement of that judgment the present appeal was preferred by the Government-Advocate under Section 417, Criminal Procedure Code.

51. A preliminary objection was raised by Mr. Sanghi learned Counsel for the respondent to the hearing of this appeal. It was contended that in view of the decision of the Bench of the old Madhya Bharat High Court which was pronounced on 5.12.1949 the present appeal could not be entertained, or in any case, it was infructuous. At the hearing of the appeal it appeared to myself and Mehta J. that the case raised a point of law of general importance on which there should be an authoritative decision of the High Court. We accordingly referred the case to a Full Bench. On reading again the order of 5.12.1949 I am however of opinion that the general question, whether on an appeal against a conviction the High Court can alter a finding of acquittal into one of conviction under Section 423(1)(b) of the Code of Criminal Procedure does not really arise in this case.

52. It will be clear from what has been stated above that Kalu and Bhuwan, though the learned Sessions Judge did not expressly record an order of acquittal In respect of any charges for which the accused were tried, did acquit them of offences under Sections 302, 394 and 397, I.P.C. At the hearing of the appeal before Rege and Sehgal JJ. as Is clear from the last para of the judgment which I have reproduced above the Government-Advocate pressed for the alteration of the conviction recorded under Section 304, I.P.C. to one under Section 302, I.P.C. This contention was repelled with the following observation:

The Government has not filed an appeal from the acquittal under Section 302 although such an appeal would be within time, and in the circumstances, I would not think of altering the conviction though I agree, this Court has the power in a proper case to do so.

(53-54) My reading of the observation thus made is that the Bench which disposed of the appeal considered the question, whether in the circumstances of that case, it should alter the finding arrived at by the learned Sessions Judge that Kalu and Bhuwan were guilty of offences under Section 304 (latter part) of the Indian Penal Code for having caused the death of Onkar and convict them (or either of them) of an offence under Section 302, I.P.C. a charge of which they were acquitted. It was contended by the learned Government-Advocate that the Bench which disposed of the appeal did not consider this matter. On the other hand it rejected the request made by him, to which reference is made in the paragraph of the judgment reproduced above, merely because the Government had not filed an appeal against the acquittal of the accused of the charge under Section 302, I.P.C. I am unable to accept this contention.

It is clear from what was said by Rege J. that in his view, a view with which Sehgal J. agreed, the High Court could, in a proper case even though there was no appeal filed by the Government against an order of acquittal, alter a finding of the learned Sessions Judge that the accused was guilty of an offence under Section 304 only and hold him guilty of an offence under Section 302, I.P.C. though the Sessions Judge had acquitted him of that charge. Inspite of expression of that opinion on the question of law, the learned Judges responsible for the decision of 5.12.1949 rejected the request made by the Government-Advocate that Kalu and Bhuwan should be convicted under Section 302, I.P.C. I am of opinion that the learned Judges must be taken to have applied their minds to the contention put foward by the Government-Advocate and on a careful consideration of the matters raised before them, come to the conclusion that the acquittal of Kalu and Bhuwan for an offence under Section 302, I.P.C. by the Sessions Judge should. In the circumstances of the case before them, be maintained. The fact that the Government-Advocate had not filed an appeal was not the reason of the refusal of the learned Judges to accept the contention put forward by the Government-Advocate. This was only a circumstance to which they referred in arriving at a conclusion. From the fact that they expressly affirmed the power of the High Court to accede to such a request as was made by the Government-Advocate in a proper case, I am clearly of opinion that this matter whether the acquittal of Kalu and Bhuwan for the charge under Section 302, I.P.C. should be set aside, was considered and decided by the High Court. A decision having once been given by the High Court it is no longer open to challenge. The High Court has no power to alter that decision because subsequently an appeal under Section 417 has been preferred by the Government. A question already decided cannot be reopened. It was not contended that an appeal is entertainable against the decision of a Bench in such a case, and obviously there is no power of review (Section 369, Criminal Procedure Code). This appeal by the Government-Advocate must therefore be held to be infructuous, and should be dismissed.

55. As already stated, I refrain from expressing any opinion on the general question raised at the hearing.

Mehta, J.

56. I agree.