# Seth Bikhraj Jaipuria v. Union of Indin

- **Citation:** [1962] 2 S.C.R. 904
- **Court:** Supreme Court of India
- **Decided:** 1959-02-24
- **Case number:** Criminal Appeal No. 222 of 1959
- **Bench:** P. B. Ga.Jendragadkar, K. N. Wanchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/seth-bikhraj-jaipuria-v-union-of-indin-2306
- **Pages:** 20

## Headnote

Criminal Appeal- -Acquittal of some charges and conviction
other8--Appeal by accused against conviction-Powers of appe .. ,ate
court--!/ can set
aside arqu<ttal
also-Code of Criminal
Procedure, 1898 (V of 1898), s. 423 (I) (b).
The accused was tried for offences under s. 302 and s. ~92
Indian Penal Code. The Sessions Judge acquitted her under
s. 302 ands. 392 but convicted her under s. 411 Indian Penal
Code. The accused appealed to the High Court against her
conviction under s. 411. The State did not appeal against
the acquittal nor did the High Court issue any notice to the
accused under s. 439 (2). The High Court set aside the order
of conviction under s. 411 as well as the order of acquittal
2 S.C.R. SUPREME COURT REPORTS
905
under s. 302 and s .. 392 and ordered a retrial on the original
charges. The accused contended that the High Court had
no jurisdiction to set aside the order of acquittal and to direct
a retrial on the original charges.
Held, that while exercising its powers under s. 423 (I) (b)
Code of Criminal Procedure in the appeal against the conviction under s. 411 Indian Penal Code the High Court had no
jurisdiction to set aside the mder of acquittal passed in favour
of the accused by the Sessions Judge in respect of the offences
under ss. 302 and 392 Indian Penal Code. Section 423 (I) (b)
is confined to appeals against orders of conviction and sentence,
and the powers exercisable under it must be restricted to the
conviction and sentence. If an order of acquittal is not
challenged by an appeal under s. 417 Code of Criminal Procedure and if no action is taken by the High Court under
s. 439 Code of Criminal Procedure the order of acquittal
becomes final and cannot be challenged indirectly in an appeal
by the accused against the order of conviction and sentence.
It is wrong to assume that the whole case is before the High
Court when it entertains an appeal against conviction.
The
power conferred bys. 423 (1) (b) (1) is intended to be exercised in cases falling under ss. 236 to 238 Cr. P. C., and the
expression "alter the finding" in s. 423 (1) (b) (2) does not
include the power to alter or modify the fiqding of acquittal.
Kishan Singh v. The King-Emperor, (1928) L.R. 55
I.A. 390 and Jayaram Vithoba v. The State of "Bombay, (1955)
2 S.C.R. l 049, relied on.

## Text

1961
Seth Bikhraj
Jaipuria
v.
Union of Indin
Shah J.
1.961
July, 24;
904
SUPREME COURT REPORTS
(1962]
Bihf!.r, and there is no evidence on the record whether orders similar to Ex.l\f-2 were issued bv the
authorities in other districts of the Bihar ·state.
But if the grains were supplied in the district of
Arrali, the appellant could evidently not seek to
rerovcr price for the goods supplied and accepted
on ancl after October 1, 1943, at rates exceeding
those fixed by the notification; for, by the i5sue
of the control orders, on the contracts must be
deemed to be snper-imposed the condition tha.t
foodgrains shall he sold only at rates specified
therein. If the grains were to be supplied outside
the district of Arrah, the case of the appellant
uffers from complete lack of evidenre as to the
ruling ratrs of the foodgrains in
dispute on
Octo lwr I , 1943. The High Court was therefore
rigltt in declining to award damages.
On the view taken by us, this appeal must
stand dismissed with costs.
Appeal dismissed.
THE STATE OF ANDHRA PRADESH
v.
THADI NARAYANA
(P. B. GA.JENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
Criminal Appeal- -Acquittal of some charges and conviction
other8--Appeal by accused against conviction-Powers of appe .. ,ate
court--!/ can set
aside arqu<ttal
also-Code of Criminal
Procedure, 1898 (V of 1898), s. 423 (I) (b).
The accused was tried for offences under s. 302 and s. ~92
Indian Penal Code. The Sessions Judge acquitted her under
s. 302 ands. 392 but convicted her under s. 411 Indian Penal
Code. The accused appealed to the High Court against her
conviction under s. 411. The State did not appeal against
the acquittal nor did the High Court issue any notice to the
accused under s. 439 (2). The High Court set aside the order
of conviction under s. 411 as well as the order of acquittal
2 S.C.R. SUPREME COURT REPORTS
905
under s. 302 and s .. 392 and ordered a retrial on the original
charges. The accused contended that the High Court had
no jurisdiction to set aside the order of acquittal and to direct
a retrial on the original charges.
Held, that while exercising its powers under s. 423 (I) (b)
Code of Criminal Procedure in the appeal against the conviction under s. 411 Indian Penal Code the High Court had no
jurisdiction to set aside the mder of acquittal passed in favour
of the accused by the Sessions Judge in respect of the offences
under ss. 302 and 392 Indian Penal Code. Section 423 (I) (b)
is confined to appeals against orders of conviction and sentence,
and the powers exercisable under it must be restricted to the
conviction and sentence. If an order of acquittal is not
challenged by an appeal under s. 417 Code of Criminal Procedure and if no action is taken by the High Court under
s. 439 Code of Criminal Procedure the order of acquittal
becomes final and cannot be challenged indirectly in an appeal
by the accused against the order of conviction and sentence.
It is wrong to assume that the whole case is before the High
Court when it entertains an appeal against conviction.
The
power conferred bys. 423 (1) (b) (1) is intended to be exercised in cases falling under ss. 236 to 238 Cr. P. C., and the
expression "alter the finding" in s. 423 (1) (b) (2) does not
include the power to alter or modify the fiqding of acquittal.
Kishan Singh v. The King-Emperor, (1928) L.R. 55
I.A. 390 and Jayaram Vithoba v. The State of "Bombay, (1955)
2 S.C.R. l 049, relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 222 of 1959.
Appeal by special leave from the judgm11nt
and order dated February 24, 1959, of the Andhra
Pradesh High Court, Hyderabad, in Criminal Revision Case No. 636 of 1958.
AND
Criminal Appeal No. 112of1961.
Appeal by special leave from the judgment
and order dated July 15, 1958, of the Andhra
Pradesh High Court in Criminal Appeal No. 237 of
1957.
.
K. R. Chaudhuri and T. M. Sen, for appellant
m Cr. A. No. 222/59.
P. Ram Reddv, for respondent.
1961
1.'he State of
Andhra Pradesh
v.
Thadi Naroyana
1961
TM Stale of
Andhra P~af],~h
v.
Thadi N a·rayana
'lajendragadkar
J.
906
SUPREME COURT REPORTS
[1962)
P. Ram Reddy, for appellant in Cr. A. No.
112/61.
Ii:. R. Cliandhun:
and T. }If. Sen,
for the
respondent.
1961. .July 24.
Tho Judgment of the Court
was delivere<l by
GAJENDRAGADKAR, J.-The short and interesting question which arises for our decision in the
present appeal is in respect of the powers of the
High Court in disposing of appeals under s. 423(l)(b)
of the Code of Criminal Procedure. In dealing
with an appeal preferred by a convicted person
ag:linst the order of conviction and sentence
imposed on him by the trial court can the High
Court in exercise of its appellate powers under
s. 423( I )(b) reverse tne finding of acquittal recorded
by the trial court in favour of the appellant in
respect of an offence which is directly not the
subject-matter of the appeal ? On this question
there has b0en a difforence of opinion amongst our
High Courts, and it appears from reported decisions
that in the same High Court sometimes conflicting
views have been expressed on thP point.
This question arises in this way. In the Court
of Sessions, Visakhapatnam Division, the respondent
Thadi Narayana was charged at the instance of the
appellant the State of Andhrit Pradesh with having
committed offences punisha,ble under s. 302 and
s. 392 of the Indian Penal Code. The case against
her was that on December 27, 1956 at about nightmeal-time at Gangacholapenta she committed the
murder of a minor girl K. Sriramulamma by stabbing her with a knife and thus rendered herself
liable to be punished under s. 302. It was also
alleged against her that at the aforesaid time and
place and in the course of the same transaction she
harl robbed thr> sllirl victim of her four pairs of gold
Konakammu lu and a pair of gold Alakalu and
thereby committed the offence. of robbel'y under
2 S.C.R.
SUPREME COURT REPORTS
907
s. 392.
On April 16, 1957 the learned trial judge
found that the charges against the respondent under
ss. 302 and 392 hacl not been proved beyond a
reasonable doubt, and so he acquitted her of the
said offences. He, however, held that the respondent was shown to have committed an offence
under s. 411 and so he convicted ber of the said
offence and sentenced her to undergo rigorous
imprisonment for a period of two years.
Against the order of conviction and sentence
thus imposed on her the respondent preferred a
jail appeal in the High Court of Andhra Pradesh.
This appeal was heard by Sanjeeva .Rao Naidu, J.
By his judgment delivered on July 22, 1958 the
learned Judge expressed his conclusion that he was
satisfied that gross miscarriage of justice had result.
ed in the case "and the only way to rectify this is
to order the retrial of the ease on the original
charges , under ss. 302 and 392 of the Indian Penal
Code so that the accused may be propedy tried
thereon and, if found guilty, convicted for the
offence or offences proved by evidence to have been
committed by her." In the result the conviction
and sentence of the accused under s. 411 was set
aside and the case was remanded to the trial court
for retrial on the charges already framed against
her.
Accordingly when her retrial commenced on
November 3, 1958 an application was made on
behalf of the respondent before the trial judge
(Criminal M. P. No. 242 of 1958) in which it was
urged that her triaLjn respect of the offences under
ss.302 and 392 was not permissible having regard to
the order of acquittal which had been passed in her
favour at the original trial. The validity of the plea
ofautrefois acqidt thus raised by the respondent was
challenged by the appdlant, aml it was mged
that by vii tue . of Lltu 11nlPr. r.aHm d by the High
Court ordering her retrial the trial court in law wa5
1961
The Slate of
Andhra Pradesh
v.
Thadi N arayana
Gajendragadkar
J.
1961
The State of
Andhra Pratlesh
v.
Thadi Narayana
Gajenlr111Jadkar
J.
908
S0PHEl\1E COURT REPORTS
(1962]
bound to procePd with the' retrial. The trial judge
11pheld this contention and observed that he was
bound to obey the directions given by the High
Court and if he were to examine the merits of the
contention raised before him by the respondent he
would be transgressing his limits, because the determination of the point raised by the respondent
would necessarily involve examining the correctness
or otherwise of the High Court's order directing a
retrial. The trial court thus rejected the application
made by the respondent.
Against this order the respondent moved the
High Court by her Criminal Revision Application
No. 636 of 1958. The Criminal Revision Application
was placed before a Full Bench becaU8e it raised
two important questions of law.
These questions
were thus framed :
(1) Where an accused is tried by a
Sessions Court on charges of murder and
robbery, and the Sessions Court acquits the
accused of those charges and convicts her only
of an offence under section 411 I. P. C. and
the accused appeals to the High Court against
the conviction and sentence but the State
Government does not appeal against the
acquittal of the accused on charges of murder
and robbery, is it open to the High Court to
:set aside the conviction and sentence under
section 411 I. P. C. and order the accused to
be retried on the charges of murder and
robbery?
(2) When in pursuance of the order of
the High Court the Sessions Court again
frames charges under sections 302 and 392
I. P. C. against the accused, is it or is it not
open to the accused to plead the statutory bar
of 'AUTREFOIS ACQUIT' under section 403
Cr. P. C.?
Che answer given by the Full Bench to the first
2 s.c.R. SUPREME COURT REPORTS
909
question is that except in exercise of the revisional
powers under s. 439 of the Code of Criminal Procedure subject to the limitations prescribed thetein it
is not open to the High Court to order a retrial on
the charges on which the accused was acquitted by
the trial court in an appeal by the accused against
his conviction, though it is empowered to reverse
the conviction and order a retrial on that charge
alone. On the second question the Full Bench held
that it was open to the 1ccused to plead the bar of
autrefoi.s acquit under s. 403 notwithstanding the
order of the High Court unless there is an adjudication on the acquittal by the High Court either
under s. 423(1) (a) ors. 439 of the Code of Criminal
Procedure. As a result of these answers the revisional application preferred by the respondent wa~
allowed, her plea under s. 403 was upheld and it was
ordered that the retrial of the respondent for the
offences under ss.302 and 39:.! of the Indian Penal
Code cannot be proceeded with. This order w~s
passed on March 11, 1959. It is against this order
that the appellant has come to this Court by
special leave.
The powers of the appellate court in disposing
of appeals are prescribed by s. 423 of the Code.
This section occurs in Chapter XXXI of the Code
which deals with appeals, reference and revision.
In the present appe:il we are concerned with the
provisions of s. 423(1) (b). However, it is convenient
to reads. 423(1) (a) and (b):
423. (1) 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 unde;
section 411A, sub-section (2) or section 417
~·he ac.cused, if he appears, the Court may, it'
It considers that there is no sufficient ground
for interfering, dismiss the appeal. or may1961
'l'he State of
Andkra Pradesh
v.
'l'h.ad i N arayana
Gajendragadkar
J,
1961
The State of
Andhra Pradec h
v.
Thadi N arayana
Gajendragadkar
J.
910
SUPREME COURT REPORTS
(1962]
(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 conviction, (I)
reverse the finding and sentence, and
acquit or discharge the accused, or order
him to be retried by a Court of compe·
tent 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, reduced 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 lOli, sub-s3ction (3),
not so as to enhance the same;
Section 423(1) (a) expressly deals with an appeal
from an order of acquittal and it empowers the
Appellate Court to reverse the order of acquittal
and direct that further inquiry be made or that the
accusc>d may be tried or committed for trial, as the
case may be, or it may find him guilty and pass
sentence on him according to law. In appreciating
the powers conferred on the Appellate Court in
dealing with an appeal against an order of acquittal
it is necessary to bear in mind that the only for11lll.
where an appeal can be preferred against an original
or an appellate order of acquittal is the High Court,
that is to say, the powers conferred on the Appellate
Court by s.423(1) (a) can be exercised only by the
High Court and not by any other Appellate Court.
Under s. 408 the Court of Sessions is an Appellate
Court to which appeals from orders of conviction
passed by an Assistant Sessions Judge, a District
Magistrate or any other Magistrate lie, and so the
Court of Se8sio1rn is an Appellate Court, !mt no
appe&l against an order of acquittal passed by any
2 s.c.R. SUPREME COURT REPORTS
911
of the aforesaid authorities can lie to the Court of
Se<sions.
All appeals against acquittal whether
passed by the trial court or the Appellate Court lie
only to the High Court, and so the powers prescribed bys. 423(1) (a) can be exercised only by the High
Court. As we will presently point out this fact has
some bearing on the construction of the material
words used ins. 423(1) (b) (2).
Section 423(1) (b) (1) in terms deals with an
appe8J from a conviction, and it empowers the
Appellate Court to reverse the finding and sentence
and acqnit or discharge the accused or order a
retrial by a Court of competent jurisdiction subordinate to such Appellate Court or committed for
trial. In the context it is obvious that "the finding"
must mean the finding of guilt. The words "the
finding and sentence" are co-related. They indicate
that the finding in question is the cause and the
sentence is the consequence; and so what the
Appellate Court is empowered to reverse is the
finding of guilt and consequently the order as to
sentence. There is no difficulty in holding that
s. 423(1) (b) (1) postulates the presence of an order
of sentence against the accused and it is in that
context that it empowers the Appellate Court to
reverse the finding of guilt and sentence and then
to pass any one of the appropriate orders therein
specified. In our opinions. 423(1) (b) (1) is, there·
fore, clearly confined to cases of appeals preferred
against orders of conviction and sentence, and the
powers exercisable under it are tfa,refore conditioned by the said consideration. It is impossible to
accede to the argument that the powers conferred
by this clause can be exercised for the purpose of
reversing an order of acquittal passed in favour of
a party in respect of an offence charged in dealing
with an appeal preferred by him against the order
of conviction in respect of another offrnce charged
and found proved. There can thus be no doubt
that the order passed by Naidu, J. cannot be
justiJied under this clause.
W61
The Stat. af
Andhra Pradesh
v.
Thadi Narayana
Gajendru.yadkar
r
1961
Th• State of
Andkra Pradesh
v.
Tkadi Narayana
Gajendragadkar
J.
912
SUPREME COURT REPORTS
(1962)
At this shge it would be relevant tu point
out that Naidu, J. did not p11rport to proceed under s.439 in dealing with the respondent's
case when the appeal preferred by her against. her
conviction was being argued before him.
It
is true that the learned judge noticed that the
appeal in question was a jail appeal and the
respondent was
110t defended by a lawyer. So
he ordered Mr. A. Gangadhara Rao, an Advocate of
t.he Court, to a pear amicus -;w·iae tu argue the ple;i
on behalf of the respondent; but, as the Full Bench
has pointed out, the record dearly shows that
neither the respondent nor her pleader was given
notice under sA3U(2j uf tho Codi-, and even the
advocate appointed l!lltiC"us uuriae
did nut know
much less the resriondent hen;elf that the learned
judge intended to exercise his powers undel' s.439
against the respondent in rcHpeet of the offences
under ss.302 and 392 clespit,e the fact that the
appellant had nut prcfnTed an appeal against the
order of acquittal passer! in favour of the respondent on those grounck Thcreforl', it is unneeessary
for us to consider in this appeal the question about
the scope and effect of the prnvisions of ss.423 and
439 of the Code rend together. The only provision
under which tlw order passed by Naidu J. is
seriously sought to be supported is s.423 (l) (b}
(2) and it is to that provision that we must now
tmn.
It is urged by ~Ir. Choudhury on behalf of the
appellant that in c•mstruing the expression "alter
the finding" it wou.ld be 1ieccssary tu remember thal
when the High Court deals with an appeal against
conviction the proceedings in the c\.ppellatP Court
are in substance a <·ontinuatiou of the pr<wecdings
in the trial eumt aud su t.lu· entirn c'lSP is in that
sense pending before the Appellate Court.
The
argument is that in exercising the powers conferred
on it by s.423 (l)(b)(2) the High Court is not confined
only to the order of con victfon which is directly
2 S.C.R.
SUPREME COURT REPORTS
913
the subject-matter of the appeal but it is possessed of the entire proceedings of the case against
the accused and it is in the light of this fact that
the expression "alter the finding" must be construed. In our opinion, this argument is not wellfourtded.
The scheme of s. 423 itself clearly shows
that when appeals against conviction are brought
before the Appellate Court by the convicted person
it ia only ·with the orders of conviction and matters
incidental thereto that fall to be decided by the
Appellate Court. An order of acquittal passed in
favour of an acuused person ean ·be challenge,d by
an appeal as provided by s.417 af tht1 Code, and
e.423(1} (a) therefore expressly deals with the powers
of the High Court in dealing with such appeals
against orders of acqnittals. Prima facie,if an order of
acquittal is not challenged by an appeal as contemplated by s.417 and if no action is taken by the High
Court under s.439 the said order of acquittal becomes
final and cannot be impugned indirectly by the
State in resisting an appeal filed by a convicted person against his conviction. In a case where several
offences are charged against an accused person the
trial fo no doubt one; but where the accused
person is acquitted of some offen.ces and convicted
of others the character of the appellate proceedings
and their scope and extent is necessarily determined by the nature of the appeal preferred before
the Appellate Court. If an appeal is preferred
against an order of acquittal by the State and no
appeal is filed by the convicted person against his
conviction it is only the order of acquittal which
falls to be considered by the Appellate Court and
not the order of conviction. Similarly, if an order
of conviction is challenged by the convicted person
but the order of acquittal is not ctiallenged by tlie
St.~te then it is only the order af conviction that
fill.ls to be considered by the Appellate Court and
not the order of acquittal. Therefore the ~sumption
that the whole case is before the High Court
when it entertains an appeal agaillllt conviction
1961
The State of
Andhra Pradesh
v.
Thadi Narflyana
--
Gajendr.agadkar
J.,
914
SUPREME COURT REPORTS
[l962J
1961
is not well-founded and as such it cannot be
pressed into service in construing the expression
A
Tdhhe Staptedoj h "alter the finding".
n
ra
ra ·ee
. v.
In this connection we ought to recall the
Thad• Naraya•a fact that it is only the High Court which is authorised to entertain appeals against acquittal under
Gajendragadkar s.417 of the Code. But the provisions of s.423 (1) (b)
J.
are applicable to all the Appellate Courts and so the
meauing of the expression "alter the finding" cannot
change according as the Appellate Court is the High
Court or the Court of Sessions. It is common ground
that the Court of Sessions which is an Appellate
Court cannot alter the finding of acqittal in pursuance of the provisions of s.423 (1) (b) (2) but the
argument is that the High Court can. This argument puts two different interpretations on the same
expression "alter the finding" and that would not be
a proper mode to adopt in construing the clause.
We are, therfore, inclined to hold that just as the
Court of sessions is not entitled to alter the finding
of acquittal in exercising its powers under s. 423
(1) (b) (2) so is the High Court not entitled to do it.
In other words, the expression "alter the finding"
has only one meaning, and that is alter the finding
of conviction and not the finding of acquittal.
Besides, if the expression "alter the finding"
was to include the power to reverse the finding of
acquittal it is not easy to realise why s. 423 (I) (a)
should have been enacted at all. From the very
fact thats. 423 (I) (a) deals independently with the
topic of appeals from orders of acquittal, it would
be reasonable to infer that the appellate power in
respect of the orders of acquittal are dealt with
separately and exclusively under s. 423 ( 1) (a),
whereas appellate powers tu deal with orders of
conviction are dealt with separately and exclusively
under s. 423 (1) (b). The scheme uf s. 423, therefore,
fa inconsistent with the argumt>nt that cl. (2) of
s.423 ( l) (b) "overs urders of acquittal a11d empowers the Appellate Court to alter the said orders.
2 S.C.R.
SUPREME COURT REPORTS
915
As a m:itter of construction the words "the
finding" in the expression "alter the finding" must
mean the finding of conviction, because the clause
begins with "in an appeal from a conviction" and
it is obvious that read in the context of the opening
words of the clause "the finding" must mean the
finding of conviction and no other. It is with an
appeal from conviction that the clause deals and
it is the finding of conviction or guilt which it
empowers the Appellate Court to alter. The word
"alter" must in the context be distinguished from
the word "reversed". Whereas, under s. 423(l)(b)(l)
power is conferred on the High Court to reverse
the order of conviction the power conferred on the
Appellate Court by the
expression "alter the
finding" is merely the power to alter. Reversal
of the order implies its obliteration, whereas
alteration would imply no more than modification
and not its obliteration. This consideration also
shows that what the expression aims at is the
finding of conviction or guilt and not the finding of
acquittal or innocence.
There is yet another consideration which
leads to the same conclusion. Section 423(l)(b)(2)
emphatically refers to the sentence and requires
that despite the alteration of the findinrr the
sentence must be maintained. In other word~, the
finding and the sentence go together and the
clause provides that even if the finding is altered
the sentence mav be retained. Similarlv the
sentei:ce !11-ay be reduced with or without altering
the fmdmg.
The reference to the sentence in
Loth the cases indicates that the finding which can
be altered under the clause is a finding which has
led to the imposition of sentence on the accused
perso~. This clause would naturally raise the
question as to what are the kinds of cases in which
the power can be exercised ? The answer to this
question is furnished by the provisions of ss. 236,
237 and 238. Section 236 dea1s with cases where
1961
The State of
Andhra Pradllah.
v.
Thadi Naraya11a
Gajendragadkav
J.
1961
-
The State of
.Andhra Pradesh
v.
Tkadi Narayana
Gajendragadlcar
J.
916
SUPREME COURT REPORTS
[1962)
it is doubtful what offence has been committed,
s. 237 with cases where a person may be charged
with one offence and yet he can ht> convicted of
another, and s. 238 with cases where the offence
proved includes the offence charged and another
offence not so charged. Where a person is charged
with a major offence, such as for instance under
s. '407 of the Indian Penal Code, he may be convicted either of that offence or of a minor offence, as
for instance under s. 406. That is the result of
s. 238 of the Code. Now, if :t trial court charges,
and convicts an accused person of, an offence
under s. 407 and sentences him the Appellate Court
may alter the finding of guilt of the accused from
s. 407 to s. 406 and in that case it may retain the
same sentence or reduce it. It is, however, clear
that in exercising
the power conferred by
s. 423 (1) (b) (2) the sentence imposed on an accused
person cannot be enhanced, and that may mean
that the conviction of a minor offence may not be
altered into that of a major offence. In our opinion,
therefore, t!ie power conferred by s. 423 (1) (b) (1)
is intended to be .exercised in cases falling under
ss. 236 to 238 of the Code. We would accordingly
hold that the power conferred by the expression
"alter the finding" does not include the power to
alter or modify the finding of acquittal. The finding Rpecified in the context means the finding as to
conviction, and the power to alter the finding can
be exercised in cases like those which we have just
indicated.
If s. 423 (I) (b) (2) was intended to confer
power QI1 the Appellate Court to alter findings of acquittal the whole clause would have been differently
worded ands. 423 (I) (a) would not have found a
separate place in the section. Besides, if without
an appeal against an order of acquittal the finding ar.·
to acquittal can be altered by the Appellate Court
it is not easy to appreciate why s. 439 should have
been separately enacted. Section 439 ha$ boen
"
2 S.C.R. SUPREME COURT REPORTS
917
1961
separately enacted in o~der. to cmpmyer the High
Court in the interest of )(JSt1ce to examme the orders
of acquittal and if it is satisfied that. in any c~se
the order of acquittal needs to be revised the Hi¥h
Court can exercise its power suo motu. The legislature has therefore deliberately provided wide
powers under s. 439 in the interest of justice, and
so it is very unlikely that the legislature eould have
intended to confer a similar power on the High
Court under s 423 (I) (b) (2).
The State of
Andlwa Praduk
v.
Tkadi Narayana 'l
Gajendiagadkar
In this connection we ought to deal with another argument which is sometimes pressed into
service in support of the wider constructfon of the
<Jlause "aJt,er the finding". It is said that the
provisions of s. 43!J apply to rn~es where there iR a
complete and express order of acquittal, whereas
s. 423 (1) (b) (2) covers cases of implied and partial
acquittal. It i8 ·tlso mged that whereas there is a
specific provision made in s. 439 (4) by which the
High Court is preducled from converting a finding
of acquittal into one of conviction there is no
such limitation in s. 423. Both these arguments
do not appear tu UR to be well-founded. In regard
to the argument of impliPd aequittal being open to
review by the High Court under s. 423 (I) (b) (2)
it would be enough to refer to a dcci;;ic1n uftho Privy
Council where this argument has been rejected. In
Kish'1n ,'fr1;gh v. The Kin[J-Err.prror (1) the appellant
had been tried by a Sessir.ns Judge uncfor s. 302
on a charge of murdrr. Hu was co:mvicted under 8.304
of culpable homicide not amounfr'I,'? to murder. This
conviction was recorded in the light of the provisions of s.238 (2) of the Code. For the offence under
s.304 he was sentenced to five years' rigorous imprisonment. While convicting thA 1ppellant under
s. 304 the triftl court did not record a specific order
of acquittal for th8 offence under s. 302. The State
Government did not appeal but applied for revision
on the ground that the appellant should have been
(1) (1928) 55 I. A, S9Q.
J.
1961
The State of
A.ndh:Ta Pradesh
v.
. Thadi N arayann
Gajenrl•agadlrar
J.
918
SU1REME COURT REPORTS
[1962]
convicted of murder and that the sentence was
inadequate. The High Court thereupon convicted
the appellant of murder and sentenced him to death.
This order of conviction and sentence was successfully challenged by the appellant before the Privy
Council. The Privy Council held that the finding
at the trial ought to be regarded as of acquittal
on the charge of murder and that consequently
s. 439 (4} of the Code precluded the High Court
from having jurisdiction upon revision to convict
on that charge. Dealing with the argument that
s. 439 (4) should be confined only to cases where
there is complete acquittal their Lordships thought
it necessary to say that "if the learned Judges of
the High Court of Madras intended to hold that
the prohibition ins. 439, sub s. (4) refers only to
caaes 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. The 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 attached to the sub-section."
It would thus be clear that any attempt to confine
the operation of s. 439 ( 4) to cases of the so-called
complete acquittal cannot be entertained; and so
it would be idle to suggest thats. 423 (1) (b) (2)
covers cases of implied or partial acquittal and
s. 439 deals with cases of express and complete
acquittal. In setting aside the order of conviction
for the offence of murder imposed by the High
Court on the appellant the Privy Council observed
that the High Court h·ld acted without jurisdiction
and so it could not accept the plea that no prejudice
had thereby been caused to the appellant. This
case, therefore, clearly eitablishes that in. exercising th·1 powers conferred on it by s. 423 (1) (b) the
...
2 S.C.R.
SUPREME COURT REPORTS
919
High Court cannot convert acquittal into conviction
that can be done only by adopting the procedure
prescribed in s. 439 of the Code.
Then, as to the argument based on the specific
provision contained ins. 439(4) it is obvious that
no such limitation could have been prescribed in
regard to the provisions of s. 423 (l)(b) for the
reason that the orders of acquittal are outside
the purview of that clause. Therefore, it would
be unreasonable to suggest that because there is
no limitation on the power of the High Court as
there is in s. 439(4) the High Court can, in dealing
with an appeal against conviction, alter the finding
of acuittal recorded at the Trial in favour of the
accused person.
We must accordingly hold that
the Full Bench of the A ndhra High Court was
right in coming to the conclusion th<it Naidu, J.
acted
without
jurisdiction
in
altering
the
finding and order of {tcquittal passed in favour of
the respondent in respect of the offences under
ss. 302 and 392 when he was dealing with the
appeal preferred by the respondent against her
conviction under s. 411.
In this connection we may incidentally refer
to the observations made by Venkatarama Ayyar, J.,
who spoke for the Court, in Jayaram Vithoba v.
The State of Bombay. (1) In dealing with the contention of the accused that the Court had no power
under s.423 (1) (b) of the Code of Crimi.nal Procedure to award a sentence under s. 148 in a case
the accused was charged under ss. 324 and 148 of
the Indian Penal Code, the High Court had observed that they had ample power to transpose th~
sentence so long as the transposition does not
amount to enhancement, and this observation
raised a question about the construction of s. 423
(1 )(b ). Dealing with the said question. Venkatarama Ayyar, J. observed "there is nothing about
,
(1) (1955) 2 S C.R. 1049.
1961
The State of
Andhra Pradesh
v.
Thadi N arayana
Gajendragadkar
J.
1961
'i'he State of
Andhra Prat!uh
v.
'l'hadi Na'fG/JIJfllJ
Gajendragadkar
J.
920
SUPRE1\'1E COURT REPORTS
[1962]
the transposit,ion of the sentence under s. 423 ( l )(b ).
It only provides for altering the finding and maintaining the sentence, and that can apply only to
cases where the finding of guilt under one section
is altered to a finding of guilt under another. The
section makes a clear distinction between a reversal of a finding and its alteration". These observations se!!m to take the same view of the scope
and cffeet of the provisions of s. 423(1 )(b)
sis we
Hre inclined to do.
As we have already indicated at. the commence.
ment of this judgment, on the question raised
for 0111· dc<'ision in the pr~sent appeal there has
been 1·onflict of judicial opinion. We .do not, however, propose to consider the several decisions to
which om attention was <lrawn because, in our
opinion, no useful purpose would be served by examining the fact~ in all those cases and subjecting
to scrutiny, the reasons adopted for arriving at
different condusions.
We would, therefore, content ourselves with the broad statement that respondent has relied upon the decisions in Indra K11mmr
Nath v. The State ('). The State v, Arr;t.J,lesk Chandra
Ray. ('), Fulo v. State (')(Full Bench), and Taj Khan
v. Rex(') (Ful Bench), whereas the appellant has
relied upon the decisions in Krishna Dkan .ilfandal
v. Queen-Empress('), Queen-Empre88 v. Jabanulla ('),
(I) A. I. R. (1954) Cal. 375.
(2) r. L.R. (1953)1 Cal.302.
(3) (1956) I. L.R. 35 Pat. 144. (4) A. I. R. i952 All. 369.
(5) (1895) I.L.R. 22 Cal. 377.
(6) 1896 I.L.R. 23 Cal. 975
•
2 S.C.R.
SUPREME COURT REPORTS
921
Tn Re Illuru Lakshmaih (') Golla Hanumappa v.
Emperor,(') Re K. Bali Reddi, (') ln Re Rangiah, (')
Bawa Singh v. The Crown (') (Full BP1wh) aml
the majority judgement in Emprmr v. Z(imfr
Qasim (')
The
minority view
expressed
by
Mulla J. in Emperor v. Zam.fr Qasim (') contain a
careful and exh~ustive discussion of the topic and
the respondent has strongly relied upon it.
There is one more point which still remains
to be considered and that is the subject-matter of
the second issue referred to the Full Bench. It. is
urged before us by Mr. Choudhury on behalf of the
State that the Full Bench itself has acted in excess
of jurisdiction in entertaining the plea raised by the
respondent under s. 403, because he contends that
the judgment delivered by Naidu J. could not be
revised by the High Court having regard
to
the provisions of s. 369 of the Code. We have
already mentioned that this question has also been
answered in favour of respondent by the Full Bench.
The judgment of the Full Bench does not show
that the effect of the provisions of s. 369 was
argued before it. In substance, however, the Full
Bench has held that
the order
passed by
Naidu J. is outside the authority conferred on the
High Court under s. 423 (l)(b)(2) and as such can be
treated to be without jurisdiction ~nd therefore a
nullity. We do not propose to decide this point
in the present appeal, because we have allowed
(1) A. I. R. 1952 Mad. 101.
(2)(1912) I.L.R.35 Mad. 243.
(3) 1914 I. L. R. 37 Mad. 119. (4) A. I. R. 1954 Mys. 122.
(5) (1942) I.L.R. 23 Lah. 129.
(6) I.L.R. (1944) All. 403,
1961
The State of
Andhra Pradesl•
v.
Thadi Narayana
Gajendragadkar
J.
1961
The State of
· Andhra Pradesh
v.
Thadi N arayana
Gajendragadk"r
J.
922
SUPREME COURT REPORTS
[1962]
Mr. Rama Reddy, who appe'lred for the n\qpondent
at our instance, to make an application for special
leave against the order passed by Naidu J.
Ac<·ordingly Mr. Rama Reddy has made an applicr.-
tion, Special Leave Petition (Criminal) No. 476
of 1961, fol' spechl leave and has prayed for excuse
of delay made in filing it. Having regard to the
very unusual circumstances in which th(' present
application has been made we feel no difficulty in
condoning the delay made by the respondent
in filing her application for special leave and
granting her special leave to appeal ag::iinst the
order in question.
In fairness we ought to add
that Mr. Choudhury did not resist the respondent's
prayer for (·xcuse of delay in the present case.
Since we are now possessed of an appeal, Crimin.al
Appeal No. 112 of 1961, filed by special leave
a.gainst the judgment
~nd order of Naidu ,J.
the question as to
whether the Full Bench
could have considered the validity of the said judgment and ordet has become a matter of academic
importance. There can be no doubt that in the
appe;il preferred by the respondent against the
sairl ord<'r it is f'ertainly open to her to challenge
its validity, and as we have come to the conclusion
that the or<ler passed by
Nairlu .r. is without
jurisdiction we have no difficulty in allowing
the respondent's appeal and setting asitlc the said
order.
In the result Criminal Appeal No. 112 of
1961 preferred by the respondent
Thadi
Narayana is allowed and the High Court'e
order passed in Criminal Appeal No, 237 of
ti
•
2 S.C.R.
SUPREME COURT REPORTS
923
1957 by which case against her had been
sent back for retrial •1n tht original d1arge~
against her under ss. 302 and 392 of the
Indian Penal Code i& set aside. The consequence of this dtcision is that the order of
acquittal passed in her favour by the trial
court in respect of the said offences is restored. The State has not preferred any
appeal against the High Court's decision in
Criminal Appeai No. 237 of 1957 where by the
conviction of Thadi Narayana in respect of
the offence under s. 411 and sentence imposed
on her in that behalf have been set aside while
ordering her retrial for the major offences
under ss. 302 and 392 of the Indian Penal
Code ; and so this latter order of acquittal in
respect of s. 411 will stand. In the circumstance~ of this case this result cannot be
avoided.. Criminal Appeal No. 222 of 1959
preferred by the State against the decision
of the Full Bench therefore fails and is
dismiBBed.
Criminal Appeal No. 112 of l!J(il allowed.
Criminal Appeal No. 222 of 1959 dismissed.
1961
The Slate of
Andhra Pradesh
v.
Thadi Naraya""
Gajmdragadkm
J,