# K. CHINNASWAMY REDDY v. STATE OF ANDHRA PRADESH

- **Citation:** [1963] 3 S.C.R. 412
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. Sinha, K. N. Wanohoo, J. 0. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-chinnaswamy-reddy-v-state-of-andhra-pradesh-2634
- **Pages:** 15

## Headnote

Acquittal-Power of High Oourt in revision-RetrialAr1mi8aibility
of statemen~ ?""4• by accussea <luring Police
inveatigation-Oode of Oriminal Procedure, 1898 (Act V of
1898), 1. 439-In<lian Evidence Act, 1872 (1of1872), a, 27.
The appellant tried with another, was convicted under
s 411 Indian Penal 'code while the other was convicted under
s~ 457 and 380 of the Code by the Assistant Sessions Judge.
The appellant had stated to the police during investigation
that «he would show the place where he had hidden them
(the ornaments)" and thereafter went to the garden and dug
out
two bundles containing the ornaments. The other
accused person had also similarly stated that he had given the
..,
--1
.. y
J
~
3 S.C.R.
SUPREME COURT REPoRTS
413
ornaments to one Bada Sab, took the police party to Bada
Sab and asked him to return the ornament which he did.
The Sessions Judge on appeal took the view that that part
of the statement of the appellant where he said that he had
hidden the ornaments was not admissible in evidence and in
the absence ·of any other evidence possession of the ornament could not be said to have been proved. He, therefore;
held that the appellant was entitled to the benefit of doubt
and acquitted him.
He also took a similar view with regard
to the other accused person and acquitted him. The order
of acquittal was set aside by the High Court in revision
under s. 439 of the Code of Criminal Procedure and a retrial
was directed; It was ,against the order of retrial that the
appeal was directed.
Held, that it was open to a High Court in revision and
at the instance of a private party to set aside an order of
acquittal though the State might not. have appealed. But
such ju1 isdiction should be exercised only in exceptional
cases, as where a glaring defect in the procedure or a
manifest error of law leading to a flagrant miscarriage of
justice has taken place.
Whens·. 439(4) of the Code forbids
the High Court from converting a finding of acquittal into
one of conviction, it is not proper that the High Court
should do the same indirectly by ordering a retrial. It was
not possible to lay down the criteria for by which to judge
such exceptional ca~es. It was, however, clear that the High
Court would be justified in interfering in cases· such as ( 1)
where the trial court had wrongly shut out evidence sought
to be adduced by the prosecution, (2) where the appeal court
had wrongly held evidence admitted by the trial court to be
inadmissible, (3) where material evidence has been overlooked
either by the trial court.or the court of appeal or, (4) where
the acquittal was based on a compounding of the offence not
permitted by law and cases similar to the above.
·
D. Stephens v. Nosibolla, [195lfS.C.R. 284and Logendra·
nath Jha, v. Shri Polailal Biswas, [1951] S.C.R. 676, referred
to.
There could be no doubt in the instant case that the
entire statements of the appellant as well as of the other
accused person would be admissible under s. 27 of the Indian
·Evidence Ac~ and the Sessions Judge was in error in ruling
out parts of them and the High Court was clearly justified in
setting aside the acquittal in revision.
Pulukuri Kotayya v. King Emperor, (1946) L.R. 74 I.A.
65, referred to.
.
1968
_,__
K, Chinn..,wami
Rtddy ·
v.
8tal1 of
A nikra Prausls
1968
K. CA'"~-~Qu~
R"'f:I '
'~ .....
. ~}llall ef.
An""• Prad"h
Wane.laoJ.
414
SUPREME COURT REPORTS [i963j
CRIMINAL APPELLATE JuRISDIOTlON: Criminal
Apeal No. 6 of 1960.
Appeal by special leave from the judgment
and order dated July l, 1959, of the Andhra
Pradesh High Court in Cr. Revision Case No. 403
·of 1958 and Criminal Revision Petn. No. 337 of
1957.
P. Ram Reddy, for the appellant.
K.R. Ohoudhuri, and P. D. Menon, for respondent No. I.
K- R. Chaudlvuri, for respondent No. 2.
1962. July 25.
The Judgment of the Court
was delivered by
WANCHOO, J.-Tliis is an appeal by special
leave against the judgment of the Andhra Pradesh
High Court.
The appellant was convicted under
s. 411 of the Indian

## Text

196B
v.·
Michael Mark
·,
. _
__....
19~S
July 2s.
' I
412
SUPREME COURT REPORTS [1963)
"The employment of a permanent employee employed on monthly rates of pay may
be terminated by giving one month's notice
or on payment of one months wages (including all allowances) in lieu of notice ...... "
Under this provision, the respondents, in question were entitled to the reliefs sought by union before the Payment of Wages Authority inasmuch as the
action of the appellants in removing their namefrom the Must.er rolls as from 2 p. m. on Januarys
14, 1957 was in fact termination of tb.eir service
without notioe.
\
The appeals, therefore, fail and are dismissed
with costs.
Both the a.ppealH were heard together
1and there will be one hearing fee.
"·
Appeal dismisse,d,
K. CHINNASWAMY REDDY
v.
STATE OF ANDHRA PRADESH
(B. P. SINHA, C. J., K. N. WANOHOO and
J. 0. SHAH, JJ.)
Acquittal-Power of High Oourt in revision-RetrialAr1mi8aibility
of statemen~ ?""4• by accussea <luring Police
inveatigation-Oode of Oriminal Procedure, 1898 (Act V of
1898), 1. 439-In<lian Evidence Act, 1872 (1of1872), a, 27.
The appellant tried with another, was convicted under
s 411 Indian Penal 'code while the other was convicted under
s~ 457 and 380 of the Code by the Assistant Sessions Judge.
The appellant had stated to the police during investigation
that «he would show the place where he had hidden them
(the ornaments)" and thereafter went to the garden and dug
out
two bundles containing the ornaments. The other
accused person had also similarly stated that he had given the
..,
--1
.. y
J
~
3 S.C.R.
SUPREME COURT REPoRTS
413
ornaments to one Bada Sab, took the police party to Bada
Sab and asked him to return the ornament which he did.
The Sessions Judge on appeal took the view that that part
of the statement of the appellant where he said that he had
hidden the ornaments was not admissible in evidence and in
the absence ·of any other evidence possession of the ornament could not be said to have been proved. He, therefore;
held that the appellant was entitled to the benefit of doubt
and acquitted him.
He also took a similar view with regard
to the other accused person and acquitted him. The order
of acquittal was set aside by the High Court in revision
under s. 439 of the Code of Criminal Procedure and a retrial
was directed; It was ,against the order of retrial that the
appeal was directed.
Held, that it was open to a High Court in revision and
at the instance of a private party to set aside an order of
acquittal though the State might not. have appealed. But
such ju1 isdiction should be exercised only in exceptional
cases, as where a glaring defect in the procedure or a
manifest error of law leading to a flagrant miscarriage of
justice has taken place.
Whens·. 439(4) of the Code forbids
the High Court from converting a finding of acquittal into
one of conviction, it is not proper that the High Court
should do the same indirectly by ordering a retrial. It was
not possible to lay down the criteria for by which to judge
such exceptional ca~es. It was, however, clear that the High
Court would be justified in interfering in cases· such as ( 1)
where the trial court had wrongly shut out evidence sought
to be adduced by the prosecution, (2) where the appeal court
had wrongly held evidence admitted by the trial court to be
inadmissible, (3) where material evidence has been overlooked
either by the trial court.or the court of appeal or, (4) where
the acquittal was based on a compounding of the offence not
permitted by law and cases similar to the above.
·
D. Stephens v. Nosibolla, [195lfS.C.R. 284and Logendra·
nath Jha, v. Shri Polailal Biswas, [1951] S.C.R. 676, referred
to.
There could be no doubt in the instant case that the
entire statements of the appellant as well as of the other
accused person would be admissible under s. 27 of the Indian
·Evidence Ac~ and the Sessions Judge was in error in ruling
out parts of them and the High Court was clearly justified in
setting aside the acquittal in revision.
Pulukuri Kotayya v. King Emperor, (1946) L.R. 74 I.A.
65, referred to.
.
1968
_,__
K, Chinn..,wami
Rtddy ·
v.
8tal1 of
A nikra Prausls
1968
K. CA'"~-~Qu~
R"'f:I '
'~ .....
. ~}llall ef.
An""• Prad"h
Wane.laoJ.
414
SUPREME COURT REPORTS [i963j
CRIMINAL APPELLATE JuRISDIOTlON: Criminal
Apeal No. 6 of 1960.
Appeal by special leave from the judgment
and order dated July l, 1959, of the Andhra
Pradesh High Court in Cr. Revision Case No. 403
·of 1958 and Criminal Revision Petn. No. 337 of
1957.
P. Ram Reddy, for the appellant.
K.R. Ohoudhuri, and P. D. Menon, for respondent No. I.
K- R. Chaudlvuri, for respondent No. 2.
1962. July 25.
The Judgment of the Court
was delivered by
WANCHOO, J.-Tliis is an appeal by special
leave against the judgment of the Andhra Pradesh
High Court.
The appellant was convicted under
s. 411 of the Indian Penal Code by the Assistant
Sessions Judge of Kurnool. Along with him, another
person Hussain Saheb was also tried and was
convicted under ss. 457 and 380 of the Indian
'Penal Code. The oase for the prosecution briefly
was that the hpuse of Rahayya in Dudyia was
burgied on the night of April 20, 1957. Ramayya
and his wife were sleeping outside and on waking
in the morning they found that the house had been ,
burgled and valuable property stolen.
The matter
was reported to the police and during the course of
investigation the po !ioe recovered 17 ornaments oil
the information given by the appellant. The other
aooused had also given information on the basis of
whiilh another stolen ornament was recovered.
Thi! Assistant Sessions Judge oil a consideration of
the evidence came to the conclusion that the other
accused had actually committed house breaking
·and· had removed ornaments from the house of
Ramayya and had handed over 17 ornaineil.ts out .
'
I.
3 S.C.R.
SUPREME COURT REPORTS
415
of that property to the appellant.
He also came
to the conclusion that the seventeen ornamants
recovered at the instance of the appellant were in
his possession and he therefore found him guilty under s. 411 of the Indian Penal Code. The appellant
and the other accused went in appeal to the Sessions
Judge. The Sessions Judge held that the appellant
had not been proved to be in . possession of the
seventeen ornaments which were recovered at his
instance from a garden.
The statement of the
appellant in this respect was that "he would show
the plac1~ where he had hidden them (the ornaments)''.
Thereafter he went to the garden and dug out two
bundles containing the seventeen ornaments from
there. The Seesions Judge held that the recovery
of ornaments from the garden at the instance of
the appellant was proved; but he further held that
that part of the statement of the appellant where
he said that he had hidden the ornaments was not
admissible in evidence.
Therefore, he took the
view that as the ornaments were recovered from
a place which was accessible to a.11 and sundry and
there was no other evidence to show that the
appellant had hidden them, it could not be held
that the ornaments were in the appellant's
possession. He therefore gave the benefit of doubt
· to the appellant and ordered his acquittal. He
also acquitted the other accused at whose instance
one of the stolen ornaments was recovered. This
accused had stated that he given the ornaments
to Bada Sab (P. W. 5) and took the police party to
Bada Sab and asked him to return the ornaments,
which Bada Sab did. The Sessions Judge, however,
on a consideration of the evidence against the
other accused thought the case against him was
also doubtful and ordered his acquittal, though he
ordered the return of ornaments to Ramayya.
This was followed by a revision by Ramayya
against the appellant and the other accused. The
19llS
K. C!iinnas1111my
R1ddy
v.
S1at1 of
4.ndhra Pra/1111
fY anch10 J.
· 196S
K. OJti,mC1wa,,.
R•dtl:J
••
Slt1t1 of
J.1dhra Prcd11h
416
SUPREME COURT REPORTS [1963]
High Court haa allowed the revision iind directed
that the matter should go back to the Sessions
Judge so that the accused should be re-tried on the
charge.a on which they had been brought to trial on
the former occasion. It is against this order of the
High Court directing retrial that the present appeal
by special leave ie directed. It may be mentioned,
however, that only Chinnaswamy Reddy has
appealed while the other accused has not appealed
against the order of the High Court.
The main contention of the appellaii't · before
us is that this was a revision by a private party.
There were no execptional circumatances in this
case which would justify the High Court in interfering with an order of acquittal at the instance of
a, private party.
Further, it is urged that s. 439
(4) of the Code of Crimin&] Procedure specifically
forbids the High Court from converting a finding
of acquittal into one of conviction and that a
reading of the judgment of the High Court shows
that by the indirect method of retrial the High
Court has practically directed the Sessions Court to
convict the appellant and thus indirectly converted
finding of acquittal into one of conviction, through
it bas not been done and conld not be done directly.
The extent of the jurisdiction of the High
Court in the matter of interfering in revision against an order of acquittal has been considered by
this Court on a number of occasions. In D. Stephens
T. Nosibolla (1) this Court observed-
"The ·revisional jurisdiction conferred on
t' 'llhrh Court under s. 439 of the Code of
C. 1.:1inn1 l'rocedure is not to be lightly exerLioec: when it i1 ·invoked by a private co111plaiuant against an order of acquittal, against
which the Government bas a right of appeal
under s. 417.
It could be exercised only
'W '
11; cl9m s.c.~. 204,
y
,_,
SUPREME COURT REPORTS [1963J
4:1.7
in exceptional case1 where the interest• of
public justice require interference for the
correction of a manifest illegality or the
prevention of a gross miscarriage of justice.
Thia juri&diotion is not ordinarily invoked
or used merely because the lower Court has
taken a wrong view of the law or misappreciated the evidence on the record."
Again, in Logendranath Jha v. Skri PolailalBiswas(1),
this Court observed-
"Though sub.a. (I) of s. 439 of the
Criminal Procedure Code
authorises the
High Court to exercise in its discretion any
of the powers conferred on a court of appeal
bys. 4:23, yet sub-s. (4) specifically excludes
the power to "convert a finding of acquittal
into one of conviction". This does not mean
that in dealing with a revision petition by
a private party against an order of acquittal,
the High Court can in the absence of any
error on a point of law reappraise the evid•
ence and reverse the findings of facts on
which the acquittal was based, provided only
it stops short of finding the R.ccused guilty
and passing sentence on him by ordering a
re-trial.''
These two cases clearly lay down the limits
of i;he High Court's jurisdition to interfere with an
order of acquittal in
revision; in particular,
Logendrana!h Jha's case (1) stresses that it is not
open to a High Crmrt to convert a finding of acquittal into one of co:ffiction in view of the provieiona
of s.
4~9 (4) and that the High Court cannot do
this even indirectly by ordering re-trial. What
had happened in that case was that the High
Court reversed pure findings of facts based on the
trial court's appreciation of evi ience but formally
(1) (1951) S.C.R. 676.
J96B -
IC. Ollinna,wamy
lte1(1
v.
Stat111f
_
Andhra Pradesll
I98B
E· Ohinnaswamy
Reddy
v.
Sjate of
bdhra Prad1sh
wanohoo J.
418
SUPREME COURT REPORTS [1963]
complied with sub-a. (4) by directing only a retrial of the appellants without convicting them, and
warned that the court retrying the case should
not be influenced by any expression of opinion
contained in the judgment · of the High Court. In
that connection this Court observed that there
could be little doubt that the dice was loaded
against the appellants of that case and it might
prove difficult for any subordinate judicial officer
dealing with the case to put aside altogether the
strong views expressed in the judgment as to the
credibility of the prosecution witnesses and the
circumstanceR of the case in general.
It is true that it is open to a High Court in
revision to set aside an order of acquittal even at
the instance of private parties, though the State
may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the
High Court only in exceptional oases, when there
is some glaring defect in the procedure or there
is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.
Sub-section (4) of s. 439 forbids a High Court from
converting a finding of acquittal into one of conviction and that makes it all the more incumbent
on the High Court to see that it does not convert
the finding of acquittal into one of conviction by
the indirect method of ordering retrial, when it
cannot itself directly convert a finding of acquittal
into a finding of conviction. This places limitations
on the power of the High Court to set aside a
finding of acquittal in revision and it is only in
exceptional cases that this power should be
exercised. It is not possible to lay down the
criteria for determining such exceptional oases which
would cover all conting1>ncies. We may however
indicate some cases of this kind, which would in
our opinion justify the High Court in interfering
with a finding of acquittal in revision. These cases
·-
"
3 S.0.R.
SOPRE~ COURT REPOR1'S
419
may be: where the trial oourt has no jurisdiction
to try the case but has still acquitted the accused,
or where the trial court has wrongly sb ut out
evidence which the prosecution wished to produce,
or where the appeal court has wrongly held evidence which was admitted by the trial court to be
inadmissible, or where material evidence has been
overlooked either by the trial court or by the appeal
court, or where the acquittal is based on a compounding of the offence, whioh is invalid under the law.
These and other cases of similar nature can properly be held to be cases of exceptional nature,
where the High Court can justifiably interfere with
an oder of acquittal; and in such a case it is obvious that it cannot be said that the High Court was
doing indirectly what it could not do directly
in view of the provisions of s. 439 (:i). We have
therefore to see whether the order of the High
Court setting aside the order of acquittal in this
case can be upheld on these principles.
A perusal of the judgment of the High Court
shows that tha High Court has gone into the evidence in great detail so far as the case against the
appellant was concerned. In our opinion, the
High Court should not have dealt with evidence
in such detail when it was going to order a retrial,
for such detailed consideration of evidence, as
pointed out in Logendranatk's case (1) amounts to
loading the dice against the appellant, when the
case goes back for retrial. If the matter stood at
this only, we would have no hesitation in setting
aside the order of the High Court direoting a
retrial; but there is one important circumstance
in this case to which the High Court has adverted
in passing, which, in our opinion, was sufficient to
enable the High Court to set aside the acquittal
in this caae. It would then have been unnecessary
to consider the evidence in that detail in which
the High Court has gone into it, and thus load the
c1i [1951J s.c.R. 6 76.
1962
K. Chinnoswam.1
Redd.J
v.
Slat• of
Andhra Prad11h
Wanchoo J,
1951
K. Chinnaawam,
R11J.dy
v
Slate of
~nJ/1ra Pradesh
•
420
SUPREME COURTR EPORTS [1963]
dice _against the appellant, when the case goes
back for retrial. That circumstance is that the
Assistant Ses1ions Judge had admitted in evidence
that part of the statement of the apvellant in
which he 1tatcd that he would show the place
where he had hidden the ornaments and relying
on it he held that the appellant wa.s in possession
of the seventeen ornaments, he had dug out from
the garden which he owned along with others. The
Sessions Judge however held that that part of the
statement of the appellant where he etated that
he had hidden the ornaments was inadmissible in
evidence. The ea me a pp lies to the case against
the other accused, who had etated that he had
given one ornament to Bada Sab and would get
it recovered from him. Though the Sessions
Judge haa not in epecifio trems ruled out that part
of the other accused's etatement where he eaid that
he had given the ornament to Bada Sab, he did
not consiatently with what he said with respect to
the appellant, attach importance to this statement
of the other accused. If therefore this part of the
statement of the appellant and the other accused
whioh led to discovery of ornament• is admissible,
it must be held tha.t the appeal court wrongly rule:!
out evidence which was admissible. In these circumstances, the case would clearly be covered by
the principles we have set out above in as much
as relevaint evidence was ruled out ae inadmissible
and the
High Court would be
juetified in
interfering with the order of acquittal so that the
evidence may be re-appraised after taking into account the evidence which was wrongly ruled out as
inadmissible. It seems that the High Court was
conscious of this aspect of the matter, for it says
in one part of the judgment that the only possible
inference that could be drawn was that the appellant was in possession of stolen goods before
they were put in that secret spot, as admitted
by the appellant in his statement, -part of which
3 8.C.R.
SUPREME COURT REPORTS
421
is admissible under s. 27 of the Indian Evidence
Act. If th'} High Court had confined itself only
to the admis9ibility of this part of the statemE>nt, it
would have been justified in interfering with the
order of acquittal. Unfortunately, the High Court
went further and a.ppraiaed the evidence also
which it should not have done, aa held by this
Court in Logendranath's ca.!e, However,if admissible
evidence was ruled out and was· not taken into
consideration, that would in our opinion be a ground
for interfering
with the order of actuittal in
revision.
Let us then turn to the question whether
the statement of the appellant to the effect that
"he had hidden them (the ornaments)" and "would
point out the place" where they were, ii wholly
a.dmissible in evidence under s. 27 or only that pa.rt
of it is a.dmi.ssible where he stated that he would
point out the place but not that part where he
stated that he had hidden the ornaments. The
Sessions Judge in this connection relied on Pulukuri
Kotayya v. King-Emperor (2) where a part of the
statement leading to the recovery o! a knife in a
murder case was held inadmissible by the Judicial
Committee. In that case the Judicial Committee
conl!lidered s. 27 of the Indian Evidence Act, which
is in these terms :-
"Provided that, when any fact is deposed
to as discovered in consequence of informa·
tion received from a. peraon accused of any
offence, in the custody of a police officer,
so much of such information, whether it
amounts to a confession or not, as relates dis.
tinctly to tbe fact thereby discovered, may be
proved,"
This section is an exception to ss. 25 and 26, which
prohibit tbe proof of a confession made to a police
officer or a confession made while a person is in
(1) [1951] S.C.R. 676.
(2) [1946] L.R. 74: I.A. 65.
K. Chiu•swa•:J
Redly
v.
Star, •f
J.nihra l'mitub
1962
IC. Chinnvswamy
R1ddy
v.
State of
Andhra Pradesh
Wanchoo J.
422 SUPREME COURT REPORTS [1963]
police custody, unless it is made in immediate presence of a magistrate. Section 27 allows that part
of the statement made by the accused to the police
"whether it amounts to a confession or not" which
relates distinctly to the fact thereby discovered to
be proved. Thus even a confessional statement
before the police which distinctly relates to the
discovery of a fact may be proved under s. 87.
'l'he Judicial Committee had in that case to consider
how much of the informatioit given by the accused
to the police would be admissible under s. !7 and
laid stress on the words "so much of such information ... as relates distinctly to the fact thereby
discovered" in that connection. It held that the
extent of the information admissible must depend
on the exact nature of the discovered to which
such information is required to relate. It was
further pointed out that "the fact discovered embraces the place from which the object is produced
and the knowledge of the accused as to this, and
the information given must relate distinctly to this
fact." It was further observed that-
"lnformation as to past user, or the pitst
history of the object produced is not related to
its discovery in the setting in which it is
discovered."
This was exemplified further by the Judicial
Committee by observing-
"lnformation supplied by a person in
custody that 'I will produce a knife concealed
in the roof of my house' leads to the discovery of the fact that a knife is concealed in
the house of the informant to his knowledge,
and if the knife is proved to have been used
in the commission of the offence, the fa.ct
discovered is very relevant. If however to
the statement the words be added 'with which
•
}
s s.c.R.
SUPREME COURT REPORTS
423
I stabbed A', these words are inadmissible
since they do not relate to the discovery of
the knife in the house of the informant."
()
If we may respectfully say so, this case clearly brings out what part of the statement is admissible under s. 27. It is only that part which distinctly relates to the discovery which is admissible;
but if any part of the statement distinctly relates
to the discovery it will be admissible wholly and
the court cannot say that it will excise one part of
the statement becau11e it is of a confessional nature.
Section 27 makes that part of the statement which is
distinctly related to the discovery admissible
as a whole, whether it be in the n1tture of conf~ssion
or not. Now the statement in this case is said to
be that the appellant stated that he would show
the place where he had hidden the ornaments. The
Sessions Judge has held that part of this statement
which is to the effect "where he had hidden them"
is not admissible. It is clear that if that part of
the statement is excised the remaining statement
(namely, that he would show the place/ would be
completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under s. 27
of the Indian Evidence Act. The words "where he
had hidden them" are not on a par with the words
"with which I stabbed the deceased" in the example
given in the judgment of the Judicial Committee.
These words (nameily, where he had hidden them)
have nothing to do with the past history of the
crime and are distinctly related to the actual discovery that took place by virtue. of that statement.
It is however urged that in a case where the offence
consists of possession even the words "where he had
hidden them" would be inadmissible as they would
amount to an a.dmisllion by the accused that he
was in possession. There are in our opinion two
a.nswerB to this argument.
In the first place,
196!
K, GhinnasWamy
Reddy
v.
State of
Andhra Pradeah
Wanchoo J.
1962
E. Chinn•swam;1
R1Jdy
v.
Stale ~J
A.r.tihra Pradesh
w.nchooJ.
424
SUPREME COURT REPORTS [1963)
s 27 itself says that where the statement distinctly
relates to the discovery it will be admissible whether it amounts to a confession or not. In the
second place, these word11 by themselvis though
they may show possession of the appellants would
not prove the offence, for after the articles have
been recovered, the prosPcution has still to show
that the articles recovered a.re connected with the
crime, i, e. in this case, the prosecution will have
to show that they are stolen prope1ty. We are
therefore of opinion that the entire statement of
the appellant (as well as of the other accused who
stated that he had given the ornament to Bada
Sab and would have it recovered from him) would
be admissible in evidence and the Sessions Judge
was wrong in ruling out part of it. Therefore, as
relevant and admissible evidence was ruled out by
the Sestions Judge, this is $fit case where the High
Court would be entitled to set aside the finding of
acquittal in revision, though it is unfortunate that
the High Court did not confine itself only to this
point and went on to make rather strong remarks
about other parts of the evidence.
'Ihe next question is what order should be
passed in a case like the present. The High Court
also considered this aspect of the matter.
Two
contingencies arise in mch a case. In the first
place there may be an acquittal by the trial court.
In such a case if the High Court is justified, on
principles we have enunciated above, to interfere
with the order of acqittal in · revision, the only
course open to it is to set aside the acquittal and
send the case back to the trial court for retrial.
But there may be another type of case, namely,
where the trial court has convicted the accused
while the appeal court has acquitted him. In suoh
a oase if the conclusion of the High Court is that
the order of the appeal court must be set aside, the
question is whether the appeal court should be
•
••
•
3 S.C.R.
SUPREME COURT REPORTS
425
ordered to re-hear the 11.ppeal after admitting the
statement it had ruled out or whether there should
necessarily be a retrial.
So far asthis is concerned,
we are of opinion that it i1 open to the High Court
to take either of the two courses. It may ordEir
a retrial or it may order the appeal court to re-hear
th11 appeal. It will depend upon the facts of each
case whether the High Court would order the appeal
court to re-hear the appeal or would order a retrial
by the trial court. Where, all in this case, the
entire evidence i11 there and it was the appeal court
which
ruled
out
the
evidence
that
had
been admitted by the trial court, the proper course
in our opinion is to send back the appeal for rehearing to the appe&l court. In 1uch a case the
order of the trial court would stand subject to the
decision of the a.ppeal court on re-hearing. In the
present ca11e it is not disputed that the entire evi·
dence ha.s been led and the only defect is that the
appeal court wrongly ruled out evidence which was
admitted by the trial ourt. In the circumstances
we are of opinion that the proper course is to direct
the appeal court to re-hear the appeal and either
maintain the conviction after taking into considera·
tion the evidence which was ruled out by it previously or to acquit the accused if that is the just
course to take. We should like to add that the
appeal court when it re-hears the appeal should not
be influenced by any observations of the High
Court on the appreciation of the eTidence and
should bring to bear its own mind on the eTidence
after taking into consideration that part of the
evidence which was considered inadmissible previ·
ously by it. We therefore allow the appeal subject
to the modification indicated above.
This leaves the case of the other accused. We
are of opinion that as we are directing the appeal
court to re-hear the appea.l with respect to the appellant it is only proper that the order relating to the
1962
K. Chinna•wamy
Retld_y
"·
Stat~ of
Antlhra r'rJtlt•h
Wanch,. J.
1962
K. Chinnaswamy
Reddy
••
State of
Andhra P1adeah
Wanchoo J.
1962
426
.SUPREME COURT REPORTS [196S)
other accused should also be set aside and his
appeal should also be re-heard in the manner indicated above. We therefore set aside the order
of the High Court with respect to the retrial of the
other accused and direct that his appeal will also
be re-heard along with the appeal of the appellant.
Appeal allowed.
SHIVDEV SINGH
v.
THE STATE OF PUNJAB
(And Connected Petition)
. (B.P. SrNHA, C.J., P.B. GAJENDRAGADKAR, K. SuB•A
RAO, K. N. WANCHOO and J.C. SHAH, JJ.)
Delegated Legislation-Ceiling on land fixed-Exemption
of efficiently managed farms-Part of rule going beyond rulemaking
power-Not severable-Whole rule ultra virea-The
PEPSU Tenancy and Agricultural Lands Act, 1955 (Pepsu
13 of 1955), as amended by Act XV of 1956, ss. 32A, 32KRules, 1958, r.31.
The PEPSU Tenancy and Agricultural ·Lands Act was
enacted in March, 1955. It was amended iil October, 1956,
and Ohs. IV-A and IV-B were added.
Chapter IV-A provides for ceiling on land and s. 32-A in that chapter fixes
the permissible limit of land which could be owned or held
by any person as landlord or tenant under his personal cultivation. Section 32K provides for exemption of efficiently
managed farms consisting of compact blocks on which heavy
investment or permanent structural improvements had been
made, and whose· break·up was likely to lead to a fall in
production. Rules were framed in March, 1958, to carry out
the purposes of the Act. Rule 31 lays down the procedure
how the exemption of efficiently managed farms was to be
determined. Sub.rule (2) provides that the PEPSU Land
Commission, which was to be appointed to advise the State
Government with regard to the exemption of lands from the
..