# MANSOOR & ORS v. STATE OF MADHYA PRADESH

- **Citation:** [1971] Supp. 1 S.C.R. 731
- **Court:** Supreme Court of India
- **Decided:** 1971-05-06
- **Case number:** Criminal Appeals Nos. 30 and 31 of 1967
- **Bench:** I. D. Dua, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mansoor-ors-v-state-of-madhya-pradesh-5406
- **Pages:** 10

## Headnote

Code of Criminal Pracedure, 1898, s. 4(1) (t), 492, 411(3}-Presentatio11
of opp.al In High Court against acquittal of accused-Additional Govern·
ment Advocate when appointed Public Prosecutor can present appealSuch appeal is a 'case' in which the Public Prosecutor is entitled to actPower of High Court in hearing appeal against acquittal-Principles.
731'
A.
B·
Constitution of India, Art. 136-Scope of arguments in appeal by
c·
special leave.
The appellants were charged along with five others for the offences
of murder and attempt to murder. Five accused persons were acquitted
by the trial court. Four of the appellants were convicted by the trial court,
the conviction being upheld by the High Court. The fifth appellant was
acquitted by the trial court but convicted by .the High Court m an appeal
D.
by the State. In appeal by special leave it was contended before this Court;
· (i) that the conviction of the appellants coulli not be sustained on the
evidence ; (ii) that the High Court in reversing the judgment of acquittal
by the trial court against one of the appellants had not followed the prin·
ciples laid down by this Court ; and (iii) that the Additional Government
Advocate was not authorised to present the a\'P°"l against acquittal in the
High Court because such appeal was not a 'case.
HELD: {!) Under Art. 136 of the Constitution this Court does not
norm8.Uy re-appraise the evidence for considering. the credibility of the
witnesses. Unless the trial is -vitiated by some illegality Qr irregularity of
procedures or their is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage
of justice, this Court does not as a rule proceed to eyaluate the evidence
E.
for coming to its ·own independent conclusion.
No such infirmity had
F
been made out by the appellants' counsel in the present case.
[736 Fl
(ii) The appellants' . counsel was also unable to show that the High
Court in reversing the judgment of the trial court against one of the
appellants had failed to observe !he principles laid down by this Court.
[737 HJ
Sanwat Singh & Ors. v. State of Ra;asthan, [1961] 3 S.C.R. 120, Keshav
Ganga Ram Navaga & Anr. v. State of Maharashtra, Cr. A. No. 100/68
dt 3-2-1971, Sheo Swarup v. King Emperor, (1934) L.R. 61 I.A. 398 and
Laxman Kalu v. State of Maharashtra, A.I.R. 1968 S.C. 1390, referred fo.
(iii) The Additional Government Advocate who presented the appeal
against acquittal in the High Court was notified as Public Prosecutor for
th• High Court in respect of cases arising in the State of Madhya Pradesh.
The case re~~tilll in the acquittal of the accused persons would clearly
~· a cue lf!Stnl in the State and within the contemplation of the notifica·
lien.
Read1n1 s. 4(f)(t) Cr. P.C. which defines 'public prosecutor' toaother
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with s. 492 Cr. P. C. under which the State Government is empowered to
appoint Public Prosecutors, the Additional Government Advocate when
appointed as a Public Prosecutor for tho High Court in respect of caseo
arising in tho State of Madhya Pradesh must be held to be a Public Prosecutor lawfully empowered to present appeals in ~ High Court against
orders of acquittal. [740 C]
•
Bhimappa Basappa Bhu Sannayar v. Laxman Shivrayappa Samagoud«
& Ors. A.I.R. 1970 S.C. 1153 and Bhagwan Das v. The King, Al.R. 1949
P.C 263, referred to.

## Text

MANSOOR & ORS.
v.
STATE OF MADHYA PRADESH
May 6, 1971
[I. D. DUA AND V. BHARGAVA, JJ.J
Code of Criminal Pracedure, 1898, s. 4(1) (t), 492, 411(3}-Presentatio11
of opp.al In High Court against acquittal of accused-Additional Govern·
ment Advocate when appointed Public Prosecutor can present appealSuch appeal is a 'case' in which the Public Prosecutor is entitled to actPower of High Court in hearing appeal against acquittal-Principles.
731'
A.
B·
Constitution of India, Art. 136-Scope of arguments in appeal by
c·
special leave.
The appellants were charged along with five others for the offences
of murder and attempt to murder. Five accused persons were acquitted
by the trial court. Four of the appellants were convicted by the trial court,
the conviction being upheld by the High Court. The fifth appellant was
acquitted by the trial court but convicted by .the High Court m an appeal
D.
by the State. In appeal by special leave it was contended before this Court;
· (i) that the conviction of the appellants coulli not be sustained on the
evidence ; (ii) that the High Court in reversing the judgment of acquittal
by the trial court against one of the appellants had not followed the prin·
ciples laid down by this Court ; and (iii) that the Additional Government
Advocate was not authorised to present the a\'P°"l against acquittal in the
High Court because such appeal was not a 'case.
HELD: {!) Under Art. 136 of the Constitution this Court does not
norm8.Uy re-appraise the evidence for considering. the credibility of the
witnesses. Unless the trial is -vitiated by some illegality Qr irregularity of
procedures or their is some violation of the rules of natural justice resulting in unfair trial, or unless the judgment has resulted in gross miscarriage
of justice, this Court does not as a rule proceed to eyaluate the evidence
E.
for coming to its ·own independent conclusion.
No such infirmity had
F
been made out by the appellants' counsel in the present case.
[736 Fl
(ii) The appellants' . counsel was also unable to show that the High
Court in reversing the judgment of the trial court against one of the
appellants had failed to observe !he principles laid down by this Court.
[737 HJ
Sanwat Singh & Ors. v. State of Ra;asthan, [1961] 3 S.C.R. 120, Keshav
Ganga Ram Navaga & Anr. v. State of Maharashtra, Cr. A. No. 100/68
dt 3-2-1971, Sheo Swarup v. King Emperor, (1934) L.R. 61 I.A. 398 and
Laxman Kalu v. State of Maharashtra, A.I.R. 1968 S.C. 1390, referred fo.
(iii) The Additional Government Advocate who presented the appeal
against acquittal in the High Court was notified as Public Prosecutor for
th• High Court in respect of cases arising in the State of Madhya Pradesh.
The case re~~tilll in the acquittal of the accused persons would clearly
~· a cue lf!Stnl in the State and within the contemplation of the notifica·
lien.
Read1n1 s. 4(f)(t) Cr. P.C. which defines 'public prosecutor' toaother
G
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with s. 492 Cr. P. C. under which the State Government is empowered to
appoint Public Prosecutors, the Additional Government Advocate when
appointed as a Public Prosecutor for tho High Court in respect of caseo
arising in tho State of Madhya Pradesh must be held to be a Public Prosecutor lawfully empowered to present appeals in ~ High Court against
orders of acquittal. [740 C]
•
Bhimappa Basappa Bhu Sannayar v. Laxman Shivrayappa Samagoud«
& Ors. A.I.R. 1970 S.C. 1153 and Bhagwan Das v. The King, Al.R. 1949
P.C 263, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
30 and 31 of 1967.
Appeals by special leave from the judgment and order dated
April 21, 1966 of the Madhya Pradesh High Court, Indore Bench
in Criminal Appeals Nos. 248 and 313 of 1965.
Nur-ud-din Ahmed, C.L. Sareen, 1. C. Talwar and R. L.
Kohli for the appellants (in Cr. A. No. 30 of 1967).
I. N. Shroff, for the appellant (in· Cr. A. No. 31 of 1967).
Nur·ud-din Ahmed, C. L. Sareen, S. K. Mehta and K. L .
Mehta, for respondents Nos. 1 to 4 and 9 (in Cr. A. No. 31 of
1967).
The Judgment of the Court was delivered by
Dua, J.-These are two appeals by special leave. In one
appeal, Mansoor, Rashid, Ishaq, Yunus
and
Mehmood sf o
Bhondekhan are the appellants and in the other the State has
appealed. against the acquittal of Ajimkhan, Hakimkhan, Mahmood.khan sf o Dilawarkhan, Gabbu and. Mehmood s/ o Bhondekhan.
All the ten accused, namely, Mansoor sf o Bhondekhan,
Rashid sfo Allabeli, Ishaq sfo .Wali Mohammad, Yunus sfo
Mohammed Hussain, Ajimkhan s/o Wariskhan, Hakimkhan s/o
Anaskhan, Mahmood.khan s Io Dilawarkhan, Gab bu s Io Mohammad Sharif, Mahmood s/o Bhondekhan and Makku s/o Bhondekhan, were charged and tried by Additional Sessions Judge,
Indore, for offences under ss.
302134, 3021149, 307134 and
307 /149 I.P.C. Out of them 8 accused persons, namely Mansoor,
Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan, Mahmood.khan
s Io Dilawarkhan and Mehmood s Io Bhondekhan, were in addition
charged under ss. 302, 307 and 148 I.P.C.
All these charges
relate to the murder of one Karamat Beg Pahalwan s/o Mirza
Karim Beg at Bombay Bazar Choraha on January 19, 1965, at
about 12·30 P.M. and to an attempt on the life of Ikbal Beg s/o
the deceased Karamat Beg Pahalwan at the same time and place.
The Trial Court convicted Mansoor,. Rashid,
Ishaq
and
Yunus and acquitted the rest· giving them benefit of doubt ni
regard to Gabbu it was observed that he had not been shoo
llANSOOll. p, MADHYA Pll.ADISH (Dua,/.)
73:J
to be in possession of any weapon of offence and that it could
not be said that he had any knowledge of the object of the
members of the party led by Mansoor. m, was, therefore, held
not to be member of this assembly. No other case was sought
to be made out against him.
Each of the three itijuries (Nos. 2, 3 & 9) inflicted on the
deceased Karamat Beg were held by the Trial Court to be indivftlually sufficient in the ordinary course of nature to
cause
Karamat's death.
But as none of the accused persons were
proved beyond doubt to have inflicted any particular fatal injury
to the deceased, they ,were all convicted under s. 302 read· with
s. 34 I.P.C.
For coliiing to the finding of common intention,
reliance was placed on· Mathurala Adi Reddy v. The State of
Hyderabad. (') The injury. inllicted on Ikbal Beg was imputed to
Mansoor, but this injury was held to constitute an offence only
under s. 324 I.P.C. As all the four accused had joined in this
assault with common intention they were all convicted under
s. 324 read with s. 34 I.P.C. Under s. 302/34 I.P.C. all the four
accused were sentenced to imprisonment for
life and under
s. 324/34 I.P.C. they were sentenced to 6 months rigorous im·
prisonment.
The convicted persons appealed to the High Court against
their conviction, and the State appealed against acquittal of the
others. The State also presented a revision petition for enhancoment of the sentences imposed on those convicted.
The High Court upheld the conviction of Mansoor, Rashid,
Ishaq and Yunus and dismissed their appeal.
It allowed the
State appeal only against the acquittal of Mehmood sf o Bhondekhan and convicted him along with four persons convicted by
'the Trial Court. The result was that the charges under s. 148
f:P.C. and s. 302/149 I.P.C. were also held proved against all
the five convicted accused persons. This charge was held established in addition to the charge under s. 302/34 I.P.C. Similarly
with respect to the injury inflicted on Ikbal Beg, the charge under
s. 324/ 149 I.P.C. was held proved. In the final result, Mehmood
s/o Bhondekhan along with the four accused persons convicted
by the Trial Court were all held guilty of offences under s. 302 / 34
I.P.C., s. 302/149 I.P.C. and s. 148 I.P.C. With respect to tho
injuries inflicted on Ikbal Beg also all these five persons were
held guilty of offences under s. 324 read with ss. 34 and 149
I.P.C.
The sentence for this offence was maintained, but they
were in llddition sentenced under s. 148 I.P.C. to one year's
rigorous imprisonment The High Court did not find any cogent
ground for enhilncing tho sentence of life imprisonment to that
(I) A.t.R.. 1956 S.C. 177.
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of death for the offence under S. 302 read with Ss. 34 and 149
I.P.C. The revision was accordingly dismissed.
In this Court. again there are two appeals-one by the five
accused convicted by the High Court, and the other by
the
State against the acquittal of the remaining five accused persons.
In the !\ppeal by the State the sentence for life imprisonment has
been stated to be inadequate for the gruesome murder in broaq
day-light. Both these appeals have been presented in this Court
by special leave under Art. 136 of the Constitution. They were
first heard by us on August 27 & 28 and September 22, 1970.
It appears from the record that the accused persons had not filed
any list of defence witnesses in the Court of Committing Magistrate.
A list of 13 witnesses was, however, filed in the Court of the
Additional Sessions Judge and summons were issued with res·
pect to those witnesses. On the day when the defence witnesses
were to be examined they were not present with the result that the
Trial Court declined further adjournment for their production.
At the time of arguments in the Trial Court the question ot
prejudice to the accused persons because of the refusal to grant
adjournment for the production of the defence witnesses
was
raised, but the Court did not consider that any prejudice had
resulted to the accused persons who wanted to examine them.
From the record we find- that only Mansoor.
Mebmood s/o
Bhondekhan, Mahmoodkhan s Io Dilawarkhan, Hakimkhan and
Ajimkhan desired to examine defence witnesses. The other accused
persons had declined to examine any witness in defence. . Out
of the list of 13 witnesses Shri Bonge the hand-writing expert
was given up. The circumstances in which the defence witnesses
were disallowed by the Trial Court are that ·on June 10, 1965,
the accused persons were called upon to enter upon their defence.
It was found that none of the defence witnesses were present in
the Court on that day. It also appears that the plea in support
of which the witnesses, except witnesses Nos. 9 & 13, were sought
to be examined was one of alibi. The Trial Court granted an
adjournment only for one day to enable the accused persons to
secure the attendance of the witnesses on June 11, 1965.
On
that day, two witnesses were reported to be out of station and
with respect to one witness it was reported that there was no
person of that name at the alidress which had been taken from
the list of defence witnesses furnished by the accused.
The
summons to Munshi had not been received baek. The defence
was, in the circumstances, closed.
After Shrl Nuruddin bad · addtessed us on thls grievance, Wll
asked hjm if he at this stage considered 'it necessary to examine.
the witrtesses in defence.
The learned counsel, after consulting
his clients and considering the matter, stated ·in ·the Court that
MANSOOR v. MADHYA PRADe$H (Dua, J.)
lie was not interested in producing any defence evidence at this
late stage. Arguments were then continued and practically at
the close of the arguments Shri Nuruddin on reconsideration of
the matter expressed his desire to be permitted to produce defence
evidence. We accordingly made an order on September 22, 1970
directing the Trial Court to permit the accused persons to examine
IO witnesses. This request, though belated, was allowed in the
interests of justice. In the Trial Court, however, only one witness
Munshi Khan s Io Kasam was examined in defence.
According
to this witness he had gone to the Trial Court on June 16, 1965
but was informed by some clerk or peon that the case had
already been decided : thereupon he returned home. According
to his evidence about S or 6 years ago during the days when
the incident in question took place his mother was ill and had
been admitted in the M.Y. Hospital. The incident in question
had, according to him, taken place in Bombay Bazar· llear Agra
Hotel. The witness used to visit Mehrabkhan Patel who had a
milk shop in Bombay Bazar and indeed he used to sleep at Mehrabkhan's place. At about 12 noon on the date of the incident the
witness and Chhotekhan were talking to each other near Asra
Hotel when they saw Karamat Pahalwan coming from Mochipura
side uttering abuses to lshaq and Mansoor. Mansoor was also
seen standing opposite Agra Hotel. Karamat Pahalwan saying
that Mansoor's servants had started thinking too much of them·
selves because of incitement from their master rushed at Mansoor
with a stick measuring 2 or 21 ft. in length and 1 or I! inches
thick. Karamat gave a blow to Mansoor with the stick hitting
him on the head. Mansoor started bleeding. Chhotekhan took
Mansoor on his bi-cycle to the police station.
A big
crowd.
collected there but the witness went away. This i~ all that. this
witness stated in his examination-in-chief. In cross-examination
he said that he could not remember the date of the incident and
also that he did not know whether Chhotekhan was alive or
dead.
According to him none pf the accused present in the
Court were present at the scene of the occurrence except Mansoor.
The witness remained in the M.Y. Hospital for about eight days
in connection with his mother's treatment. He denied that Ikbal
s/o Karamat had any stick in his hand or that he gave any blow
to Mansoor. This evidence seems to us to be wholly on-impressive
and does not call for any serious consideration or comment.
When these appeals came up for hearing before us with the
remand report of the Trial Court and the record of the defence
evidence, Shri C. L. Sareen the learned counsel appearing in
support of the appeal by the convicted appellants again took us
through the relevant record and addressed arguments challenging
the. conviction of the appellants. After reading the testimony of
M;unshikhan he made a .faint attempt to persuade· us to acrept
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his evidence, but realising the futility
of this venture he soon
gave up the attempt.
His main and principal contention, however, was that the witnesses whose evidence was not relied upon
by the Trial Court with respect to the presence of the five accused
persons, whose acquittal was upheld by the High Court, should.
not have been believed for convicting the present appellants. In
support of this contention be took us thtough the evidence of
Iqbal Beg s/ o the deceased (P.W. 1) and submitted that be was
an interested witness and his evidence was unbelievable because
his iesdmony did not tally with the evidence of Narayansingh
P.W. 25 who had prepared the site plan. The counsel
also
referred to certain portions of the statements of Ahmed Khan
P.W. 2, Mohammad Shafi P.W. 3, Ismail P.W. 6,
Dr. B. N.
Chatterjee, P.W. 10, Shitlaprasad P.W. 24 and. Abd11lkadar P.W.
29 for the purpose of persuading us to bold that their evidence
is not worthy of credan~e. His attack was also di!'Prted to the
First Information Report According to him the F .LR. lodged
by Ikbal Beg was not in reality the first information in point of
time, because the information with regard to this incident hacf
already been made by Mansoor. We are wholly unable to agree
with the counsel that the information lodged by lkbal Beg was
not the F.I.R. and that Mansoor had made the reporl earlier.
The case diary of the police was also subjected to some criticism
for the purpose of discrediting the investigation.
All these arguments which the learned counsel has taken
pains to advance are misconceived in this Court for ihe simple
reason that under Art.
136 of the Constitution this Court does
not normally re-appraise the evidence for considering the cre0.ibility of the witnesses as if it is a court of first appeal. Unless
the criminal trial is vitiated by some illegality or irregularty of
procedure or there is some violation of the rules of natural
justice resulting in unfair trial, or unless the judgment has resulted
in gross miscarriage of justice, this Court does not as a
rule
proceed to evaluate the evidence for coming to its own independent conclusion. No such infirmity has been made out by the
appellants' learned counsel.
We may briefly state the broad essential features
of the
prosecution story as narrated by the eye witnesses and as accepted
by the High Court. Mansoor has employed accused Isbaq. Yunus
and Gabbu.
Rashid is a friend of Mansoor since childhood.
Accused Mahmoodkhan s/o Dilawarkhan, Ajimkhan and Hakimkhan are three Pathans who usually visited Mansoor's shop. They
are stated to indulge together in the nefarious trade of smuggling
opium.
Karamat Beg and his son Ikbal Beg are opposed
to
Mansoor's party.
Indeed there have been incessant
quarrelll
between the two factions. Mansoor' s servants often nsed to ac1
MANSOOR v. MADHYA PRADESH (Dua, J.)
in offensive and provocative manner tow;irds Karamat and his
son.
As a result of fresh trouble about a couple of months
prior to the present occurrence, proceedings under s. 107
Cr.
P.C. were also initiated between the parties.
On January 19,
1965, Karamat started from Taj Laundry at about noon time for
going to his house with 'some guava fruit and a bottle. Those
were Rwnzan days. He was proceeding along Jawahar Marg and
as he turned towards Bombay Bazar he met Ishaq and Yunus
Ishaq spot at Karamat which infuriated him.
In his
younger
days Karamat used to be known as a renowned wrestler. Ishaq
ran away followect by K~ramat who was shouting at Ishaq. When
they reached near the Grand National Bakery they saw Mansoor
there. On Karamat's complaint about misbehaviour of Mansoor's
servants, Mansoor retorted that the matter should be settled once
for all right then. Ikbal hearing his father's shouts also followed
him.
In response to Karamat's enquiry as to what was to be
settled, Mansoor directed his servants to start the job.
Rashid
than assaulted Karamat with a knife.
Mansoor also suggested
that Karamat's veins should be cut off.
Ikbal who had
also
reached there snatched a stick from a faqir who happened to be
closeby and tried to save his father. But before he could intervene
Mansoor had given one knife blow to Karamat on his neck and
another on his chest.
Yunus and Ishaq also started grappling
with Karamat. Ikbal gave stick blows to them. On this Mansoor·
asked Rashid to cut off Ikbal's veins and he himself also aimed
a knife blow at Ikbal but the blow missed the mark.
Ikbal in
the meantime slipped away but not before Ishaq had caused him
an injury on his left hand.
Mehmood also gave a
blow on
Ikbal's left arm. Karamat who was given further blows by the
pacty of Mansoor became unconscious.
Ikbal straight went to
the police station and lodged the report. These broad features
of the prosecution version as given by the eye witnesses
were
accepted by the High Court and since it was a case of party
factio!ls the evidance was sifted. by both the Courts to see that
if there was some element of doubt with respect to any individual
accus.ed person he should be given its benefit.
Mr. Sarin next submitted that the High
Court had
not
followed the standard laid down by this Court for dealing with
the appeals against acquittal and in support of this submission
he relied on the decisions of this Court in Sanwat Singh & others
v. State· of Rajasthan(') and on an unreported judgment of this
Court in lfeshav Ganga Ram Navge & Anr v. State of Maha.
rashtra('). In our opinion, this submission is wholly unfounded.
The High Court· did not ignore the standard laid down by this
c1> [19611Js.c.R.120.
(2) Cr. A. No. 100 of 1968 decided on Febru,ry 3. 197!.
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Court in Sanwat Singh's case('). According to that decision the
words "substantial and compelling reasons" for setting aside an
order of acquittal used in this Court's earlier decisions are intend·
ed to convey the idea that an appellate court shall not only bear
in mind the principles laid down by the Privy Council
in Sheo Swarup v. King Emperor,(') but must also give
its clear reasons for coming to the conclusion that the order of
acquittal was wrong. In ·the case before us the High Court has
kept these observations in view when dealing with the acquittal
appeal.
In Keshav Ganga Ram Navge's case(') the Additional
Se.sions Judge had disbelieved the evidence of the eye
witnesses, who according to him, had spoken about the incident
in a parrot-like manner. The three dying declarations were also
rejected by the Trial Court and the other evidence was also held
untrust worthy. The High Court on appeal against the acquittal
relied on two out of the three dying declarations and while dealing with the evidence of the eye witnesses did not consider the
discrepancies and improbabilities of the version given by those
witnesses as pointed out by the Trial Court. The Court quoted
with approval some observations made in Laxman Kalu v. State
of Maharashtra(') in which it was said that the powers of the High
Court in an appeal against acquittal are not different from the
powers of the same Court in hearing an appeal against conviction, but the High Court in reversing the judgment of the Sessions
Judge must pay due regard to all the reasons given by the Sessions
Judge for disbelieving a particular witness and must attempt to
dispel those reasons effectively before taking a contrary view
of the matter. The High Court in the case before us,
in our opinion did not go
against these
observations.
Indeed the appellants' learned counsel was unable to show how
the High Court had ignored the principles laid down by this.
Court in the decisions cited while dealing with appeals against
acquittal. In Sanwat Singh's case('), it is
worth-noting, this
Court had dismissed the appeal and had made the following ·observations with regard to the exercise of power of this Court under
Art. 136 of the Constitution. It was said there :
"Article 136 of the Constitution confers a wide
discretionary power on this Court to entertain appeals in
suitable cases not othenvise provided for by the Constitution. It is implicit in the reserve power that it cannot
be exhaustively defined, but decided cases do not permit
interference unless "by disregard to the forms of legal
process or some violation of the principles of natural
(0 [1961] 3 S. C.R. 120.
(2) (1934) L.R. 61 I.A. 398.
(3) Cr. A. No. 130of1968 decided on Feb. 3, 1961.
(4) A.I.R. 1968 S.C. 1390.
MAN'SOOR v. MADHYA PRADESH (Dua, J.)
justice or otherwise, substantial and grave injustice has
been done".
Though Art. 136 is couched in
widest
terms, the practice of this Court is not to interfere on
questions of fact except in exceptional cases when the
finding is such that it shocks the conscience of the court.
In the present case, the High Court has not contravened
any of the principles laid down in Sheo Swarup's case (')
and bas also given reasons which led it to hold
that
the acquittal was not justified. In the circumstances, no
case has been made out for our not accepting the said
findings."
In the present case we further find that Mahmood. who was
convicted on appeal against acquittal has since served out his
sentence and is no longer in jail. The counsel contended that
if Mahmood's conviction were to be set aside then there would
be no justification for applying ss. 148 and 149 l.P.C. We are
not persuaded to hold that the judgment of the High Court
suffers from any such grave or serious error as would justify our
interference with the order conviCting Mahmood.
The High
Court considered the evidence and came to its own conclusion.
No legal error suggesting miscarriage of justice has been pointed
out by the learned counsel.
The conviction
of
the
present
appellants, it may be pointed out, is also under s. 302 read with
s. 34 I.P.C. and this conviction would, iu any event, be un·
assailable even though s. 148 I.P.C. is not attracted. We, however,
do not accept the contention that Mahmood was wrongly convicted and s. 148 I.P.C. is not attracted.
Finally the counsel laid stress on the submission that the
appeal in the High Court was incompetent because the Additional
Government Advocate who had presented the appeal was
not
the Public Prosecutor. The Gazette Notification to which our
attention has been drawn shows. that Mr. Dubey, the Additional
Government Advocate, was notified as Public Prosecutor for the ·
High Court in respect of the cases arising in the State of Madhya
Pradesh.
The counsel raised an ingenious argument,
namely,
that Mr. Dubey could not be considered to be a Public Prosecutor for presenting appeals in the High Court against orders
·of acquittal, because the appeal could not be described
as a
case, which arose in the High Court in which eventuality alone,
he would act as a Public Prosecutor. The argument has merely
to be stated to be rejected. The counsel tried to seek support
from a decision of this Court reported as Bhimappa Bassappa
Bhu Sannavat v. Laxman Shivrayappa Samagouda and others.(')
In this decision it was said that the word "case" which is not
(I) (1934) L. R. 61I.A.398.
(2) A.l.R. 1970 S.C. 1153.
739
A
B
c
D
E
F
G
H
740
A
B
c
D
E
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SUPREME COURT REPORTS
(1971) SUPP. S.C.R.
defined. by the Code of Criminal Procedure is well understood
in legal circles and it ordinarily means a proceeding for
the
prosecution of a person alleged to have committed an offence.
It was added that in other contexts this word may represent other
kinds of proceedings. But in the context of s. 417(3) the Court
said it must mean a proceeding which at the end results either
in discharge, conviction, or acquittal of an accused person.
If
ianything, this decision goes against the appellants' contention.
The case resulting in the acquittal of the accused persons would
deary be a case arising in the State and within the contemplation of the notification, and the Additional Government Advocate·
who is the Public Prosecutor for the High Court would be entitled'
to present the appeal in such a case. Reading s. 4(l)(i) Cr. P.C.,
which defines "Public Prosecutor" together with s. 492 Cr. P.C.
under which the State Government is
empowered to appoint
Public Prosecutors. the Additional Government Advocate when
appointed as a Public Prosecutor for the High Court in respect
of the cases arising in the State of Madhya Pradesh must, in
our opinion, be held to be a Public Prosecutor lawfully empowered
to present the appeals in the High Court against orders of
acquittal. The Privy Council decision reported as Bhagwan·Das
v. The King(') cited by Shri Sarin also goes against his contention.
rt is further note-worthy that this objection was
not
raised in the High Court. We are, therefore, unable to sustain
the submission that the appeal against the order of acquittal wa~
filed in the High Court by an unauthorised person.
The appeal on behalf of the accused persons mnst, therefore.
fail.
Mr. Shroff rightly did not press the appeal against acquittal
of the five accused persons, which was based on the concurrent
order by both the courts below. In regard to Mahmood also,
who having served ont his sentence h~s already been released, be
did not seriously press his appeal fof enhancement of sentences.
Otherwise too, in regard to the prayer for enhancement of the
sentences, we do not find any cogent grounds for differing with
the order of the High Court.
In the final result, both the appeals fail and are dismissed.
G. C.
Appeals dismissed.
(I) A.I.R. 1949 P.C. 263.