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TMI Blog1961 (10) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: "Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII." It is, therefore, urged that the judgment of the First Bench of this High Court in Criminal Appeal No. 645/60 is final and that the High Court can pass no further orders in respect of the same accused even if the State has filed another appeal from acquittal under section 302 of the Indian Penal Code. In support of this contention, reliance is placed on the Full Bench" decision of the Madhya Bharat High Court, in State v. Kalu, the Full Bench decision of the Punjab High Court in The State v. Mansha Singh Bhagwant Singh and also on the reasoning of Niyogi, A. J. C. in Mohammadi Gul Rohilla v. Emperor AIR 1932 Nag 121 at p. 125 (FB). The appeal against the conviction under section 304 Indian Penal Code was filed by the respondents and admitted and numbered as Appeal No. 645/60. That appeal was decided in February 1961, and Appeal No. 105 of 1961 was filed on 11-3-1961 by the State against the acquittal of the respondents under section 302 Indian Penal Code and it was not summarily dismissed under section 421 Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal which it is obligatory on its part to decide. The Appellate Court would, therefore, take care to see that it does not ignore the provisions of Section 430 Criminal Procedure Code and that it does not interfere with any final decision by any competent Court. The decision given by the High Court in Appeal No. 645/60 is no doubt, final and will have to be treated as final. But even doing so, it is open to the Appellate Court viz., the High Court to dispose of Appeal No. 105 of 1961 which is an appeal against acquittal, as the appeal against acquittal raises "points which are different from those decided in Appeal No. 645/60. The points arising and decided in Appeal No. 645 of 1960 are as follows: - (1) Was the Sessions Court right in convicting the accused 'under section 304 Indian Penal Code? (2) Was the sentence passed by the Sessions Court proper in the circumstances of the case? These are the only two points for determination before the Bench in Appeal No. 645 of 1960. The question whether the learned Sessions Judge was wrong in acquitting the accused under Section 302 of the Indian Penal Code did not arise for determination in Criminal Appeal No. 645 of 1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard together, sometimes it happens that the appeal against a conviction is confirmed. If the contention of the learned counsel is correct, the moment the Division Bench of the High Court pronounces its judgment confirming the conviction, it would be incompetent for the same Division Bench to pronounce a judgment in an appeal from an acquittal, even if both the appeals are heard together. The contention urged by the learned counsel for the respondents would, therefore, result in an absurdity viz., that even one Division Bench of the High Court cannot hear an appeal from a conviction and an appeal from an acquittal in respect of the same accused persons. 5. It is next contended that if the present appeal from the acquittal is heard, the Appellate Court would not be competent to exercise all the powers given to it under Sections 423 (1) (a), Criminal Procedure Code, which provides that - "(i) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal under Section 411-A, Sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st affect the competency of the Court. It must follow that any appeal filed in such circumstances will turn out to be futile. In other words, the appeal itself will be incompetent. In (1890) 15 AC 506 Lord Herschell in delivering his opinion upon an analogous question stated the principle in these terms: 'I think it is impossible to read the section your Lordships have to construe without seeing that the power to hear and determine an appeal, and the power to enforce the judgment of the Court of appeal in case it should differ in opinion from the Court below, were intended to be coextensive. And I cannot think that it was ever contemplated that an appeal should, be entertained from any class of orders when that which was effected by them could never be effectually interfered with .......and if it had been intended that an appeal should lie against such an order, I think that provision would have been made to enable the Court of Appeal to restore to custody the person erroneously discharged. In the absence of such a power the appeal is futile, and this appears to me to be a sufficient reason for holding that the Legislature did not intend the right to hear and determine, appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges 533, 534), as follows: "The function of a Court of Appeal is to deal with the judgment before it for review, and not to pronounce opinions on a point of law which may remove a difficulty from the path of a litigant in future proceedings." "I think it is impossible to read the section your. Lordships have to construe without seeing that the power to hear and determine an appeal, and the power to enforce the judgment of the Court of Appeal in case it should differ in opinion from the Court below, were intended to be coextensive. And I cannot think that it was even contemplated that an appeal should be entertained from any class of orders when that which was effected by them could never be effectually interfered with. The jurisdiction of the Courts whose functions were transferred to the High Court, to discharge under a writ of habeas corpus, was well known; and if it had been intended that an appeal should lie against such an order, I think that provision would have been made to enable the Court of Appeal to restore to custody the person erroneously discharged. In the absence of such a power the appeal is futile, and this appears to me to be a sufficient reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be convicted both under Sections 326 and 302 Indian Penal Code in respect of the same blow. This is contemplated in Section 71 Indian Penal Code which reads as follows:- "Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, "when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which" tries him could award for any one of such offences." Section 71 Indian Penal Code, therefore, limits the punishment awardable in such a case, but it does not take away the power of the Court to convict an accused person of all the offences under which the act falls. Section 2 of the Indian Penal Code provides as follows:- "Every person shall be liable to punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he major offence for a less severe punishment for the minor offence does not involve variation of the conviction and sentence for the minor offence." A High Court hearing an appeal from acquittal must take care to see that it accepts as final the findings of the earlier judgments, of the High Court on all matters which it was competent for the High Court in the earlier appeal to decide. 6. Reliance is also placed on the following observations of their Lordships of the Supreme Court in U. J. S. Chopra v. State of Bombay. 1955 CriLJ 1410 and in particular, reliance is placed on the following observations of their Lordships of the Supreme Court at page 649: "A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a judgment and such a judgment when pronounced would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier. 8. Section 430 Cri. Pro. Code makes final only those judgments and orders which have been heard and decided. As observed by His Lordship of the Supreme Court in the same case, namely 1955 CriLJ 1410, before there can be finality under Section 430, the points must have been heard and decided. When the question as to the correctness or otherwise of the acquittal of the accused was never heard and decided by the High Court in Appeal No. 643/60, there can be no finality of that question whether the accused were rightly or wrongly acquitted under Section 302 I. P, C. That point must be heard and decided so that the decision can become final under Section 430 Cri. Pro. Code. 9. Reliance is also placed on the following observations of a Madhya Bharat Full Bench in AIR 1952 Mad 81 : "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 conviction as well as the -sentence, and also confirmed the conclusion of the trial Court that on those facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal against conviction and the subsequent revision application. The same question cannot be considered by the High Court at two different stages. But different questions may be considered by the High Court at two different stages. In the case of an appeal against conviction and an appeal against acquittal the questions for consideration before the High Court are essentially different. It is true that the 'provisions relating to judgment' contained in Chapter XXVI do not apply to judgments by the High Court. Even in the case of a High Court, it has to certify its judgment or order "under Section 425 Cri. Pro. Code. The principles contained in Section 367, Cri. Pro. Code that the judgment shall contain the point or 'points for determination, the 'decision thereon and the reason for the Decision are principles of general application. Even a High Court pronouncing its judgment has to frame the point or points for determination and its decision is confined to the point or points for determination. When the High Court is deciding an appeal by an accused person against his conviction, the question of the correctness or otherwise of his acquittal under a different &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution nor Section 403 Cri. Pro. Code would apply to a case where the appeal against acquittal is being heard. But they observed that the principle which is embodied in Illustration (d) to Section 403 Cri. Pro. Code is of the utmost importance. Illustration (d) to Section 403 Cri. Pro. Code is as follows : "A is charged before the Court of Sessions and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B." It is difficult to see what is the principle involved in the illustration which is not found in the words of the illustration. The illustration clearly applies to a second trial and not to an appeal after a trial. It is difficult to agree with the following observations of Grover, J., on page 241: "This illustrates the principle which is firmly established in England as well as America that where a person has been convicted for an offence by a Court of competent jurisdiction, the conviction is a bar to all further criminal proceedings for the same offence." If these observations are correct, then an accused person cannot file an appeal against his conviction and the State cannot file a revision appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te to file an appeal against acquittal and it makes it obligatory on the High Court to hear the appeal if the High Court gives notice under section 422 Criminal Procedure Code. Once such a notice is given it is obligatory on the High Court to hear and decide the appeal and to pass judgment thereon. This right cannot be affected by what a Bench of the High Court does and is not affected even if the High Court hears the appeal from conviction earlier than the appeal by the State from acquittal. A right given by the -Criminal Procedure Code cannot be taken away by anything other than an express provision to the contrary in a statute. While hearing the appeal against acquittal, however, the Bench hearing the appeal must bear in mind the provisions of section 430 Criminal Procedure Code and Section 71 Indian Penal Code. The findings of the First Bench of the High Court deciding the appeal from the conviction on all points which arose for its determination are final and cannot be touched by the High Court 'when hearing the appeal against acquittal. It cannot also order a retrial because by so doing, it would upset the finality of the decision of the First Bench which had heard the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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