PETITIONER:
MOHINDER SINGH AND ORS. ETC.
Vs.
RESPONDENT:
STATE OF PUNJAB AND ANR.
DATE OF JUDGMENT20/12/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION:
1985 AIR 383 1985 SCR (2) 488
1985 SCC (1) 342
ACT:
Criminal Procedure Code 1973 Sections 377, 378 and 386.
HEADNOTE:
Appeal against acquittal by state Government to
High Court-Powers of appellate court-What are-High court
final court of facts-Correctness and acceptability of
evidence-Duty-To be satisfied-Open to re-appraise evidence
and decide appeal or order re-trial-Not proper to remand
case to trial court for writing a fresh judgment-Proper
direction by Government to file appeal- Existence of-High
Court whether competent to go through the sanction file.
The four appellants in the appeal were tried by the
Sessions Judge for offenses under Sections 302/34 I.P.C. and
also under Section 27 of the Arms Act 1959. The court
convicted the first appellant under Section 304 Part-I
I.P.C. and sentenced him to 7 years rigorous imprisonment
and acquitted the others.
The first appellant filed and appeal before the High
Court and the State Government filed appeals against the
acquittal of the other appellants and also of the first
appellant’s under Section 302 I. P. C. The High Court came
to a general conclusion that the judgment of the Sessions
Judge was not in accordance with law and had not dealt with
some of the Points raised in the appeals, and remanded the
case back to the trial court for writing a fresh and proper
judgment. As far as the acquitted accused were concerned
although the appeals were filed by the Public Prosecutor as
directed by the State Government, the High Court hold that
there was no proper direction by the Government for filing
the appeals except in the case of the first appellant .
Allowing the Appeals to this Court,
^
HELD: Assuming that the High Court was right in
thinking the judgment suffered from some infirmity and there
were certain facts which were not taken into consideration
they would not be grounds for remanding the case to the
Sessions Court to writ a proper judgment. The High Court
itself was a final court of facts and it was its duty to
satisfy itself regarding the correctness and acceptability
of the evidence. It was entirely open to the High Court to
re-appraise the evidence once again to consider the facts
overlooked by the Sessions Judge and to have decided the
appeal
489
itself instead of remanding the case to the Sessions Court.
The proper order in such a case should be either to decide
the case itself or to send it for re-trial. The question of
re-trial does not arise in the instant case. The order of
the High Court is set aside and the High Court is directed
to re-hear two appeals on merits according to law. [491D-F]
2. Whenever the Government seeks opinion it consults
various agencies namely the Advocate-General, Public
Prosecutor, Legal Remembrancer and others and thereafter the
order is passed by the Government through the Secretary
incharge. [490E]
In the instance cases it is not in dispute that the
Public Prosecutor was directed by the Under Secretary to the
Government in charge to file appeals against all the
appellants. A clear direction had been given to the Public
Prosecutor to file appeals against all the four accused and
as regards the first appellant against his acquittal under
Section 302 IPC. The High Court at the instance of the
acquitted accused tried to re-open the matter in order to
find out the manner and various stages through which the
sanction to file an appeal was chanalised. This was not at
all proper for the High Court to do. [490E; G; F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
335-36 and 523 of 1982.
From the Judgment and order dated the 31st of March,
1982 of the High Court of Punjab and Haryana in Criminal
Revision No. 977 of 1980.
R.L. Kohli, M K. Dua, S.K. Mehta, P.N. Puri and R.C.
Kohli for the appellants.
S.K. Bagga for the respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J. In these appeals by special leave four
persons, namely, Mohinder Singh, Gurcharan Singh, Bharpur
Singh and Jagvinder Singh were tried by the Sessions Judge
for offences under Sections 302/34 and 307/34 IPC and also
under Section 27 of the Arms Act. After recording the entire
evidence the trial court convicted Mohinder Singh under
section 304 Part I IPC sentenced him to 7 years rigorous
imprisonment. The other three accused were acquitted by the
Sessions Judge. Mohinder Singh filed an appeal before the
High Court of Punjab and Haryana against his conviction and
sentence. The State Government also filed an appeal against
Gurcharan Singh, Bharpur Singh and Jagvinder Singh so far
490
as their acquittal was concerned and against Mohinder
Singh so far as his acquittal under Section 302 IPC was
concerned. The High Court without making any real attempt to
analyse and appreciate the evidence led in support of the
prosecution came to a general conclusion that the judgment
of the learned Sessions Judge was not in accordance with law
and that he had not dealt with some points or omitted to
consider some points, and remanded the case back to the
trial court for writing a fresh and proper judgment. So far
as the acquitted accused were concerned although the appeal
was filed by the Public Prosecutor as directed by the State
Government yet the High court on its own or perhaps at the
instance of the acquitted accused on a petition filed by
them held that there was no proper direction by the
Government for filing the appeal except in case of Mohinder
Singh.
There was undoubtedly a direction to the Public
Prosecutor to file appeal against acquitted accused as
indicated above. The High Court, however, at the instance of
the acquitted accused tried to re-open the matter in order
to find out the manner and various stages through which the
sanctioned to file an appeal was chanalised. With due
respects to the learned judges we feel that this was not at
all proper for the High Court to do. Whenever, a Government
seeks opinion it consults various agencies, namely, the
Advocate General, Public Prosecutor, Legal Remembrancer and
others and thereafter the order is passed by the Government
through the Secretary incharge. In the instant case it was
not disputed that the Public Prosecutor was directed by the
Under Secretary to the Government in charge to file appeal
against all the appellants. The High Court, however, seems
to have gone deeper into the matter by making a roving
inquiry into what had happened when the matter was under
consideration of the Government and how things shaped and
held after making this roving inquiry, that the authority
given to the Public Prosecutor was only in respect of
Mohinder Singh and not others. Therefore, the High Court was
of the opinion that direction to file appeal against
acquitted accused Gurcharan Singh, Bharpur Singh and
Jagvinder Singh was non-est and hence appeal filed by the
State was not properly presented so far as they are
concerned. It appears that a clear direction has been given
to the Public Prosecutor to file appeal against all the four
accused, three of them against acquittal and as regards
Mohinder Singh against his acquittal under Section 302 IPC.
Having gone through the entire record we are unable to
agree with the High Court that there was any interpolation
with
491
respect to acquitted accused. It may be that various
agencies may A have expressed different views but by and
large the final decision taken by the Under Secretary
prevailed as a result of which the Public Prosecutor was
authorised to file an appeal before the High Court against
all the acquitted accused. In such a situation, therefore,
the High Court erred in holding that the appeal presented by
the State was not properly presented as against the said
three accused, and it should have heard the appeal on merits
alongwith the care of Mohinder Singh. As we intend to send
the case back to the High Court for fresh decision in
accordance with law after taking into consideration the fact
that the appeal by the State was properly constituted it is
not necessary for us to give further details. We might,
however, mention that the High Court instead of analysing
and appreciating evidence, remanded the case back to the
Sessions Judge for writing a proper judgment. In the first
place, assuming that the High Court was right in thinking
that the judgment suffered from tome infirmities and there
were certain facts which were not taken into consideration
they would not be grounds remanding the case to the Sessions
Court to write a proper judgment. The High Court itself was
a final court of facts and it was its duty to satisfy itself
regarding the correctness and acceptability of the evidence.
Thus, it was entirely open to the High Court to reappraise
the evidence once again to consider the facts which may have
been overlooked by the Sessions Judge and it should have
decided the appeal itself instead of remanding the case to
the Sessions Court. It being a moot point, we refrain from
expressing any opinion on the question whether the first
appellate court of fact can in a criminal case send the case
back to the Sessions Court for writing a fresh judgment. The
proper order in such a case should be either to decide the
case itself or to send it for re-trial. The question of re-
trial does not arise in the view we have taken in this case.
We, therefore, allow one Appeal 523 of 1982 and the
other appeals in part set aside the order of the High Court
and direct to re-hear the appeals on merits according to
law. We think it proper and expedient in the interest of
justice that this appeal should be heard by a different
bench of the High Court.
N.V.K Appeals allowed.
492