The State of Andhra Pradesh Vs. Thadi
Narayana  INSC 227 (24 July 1961)
GUPTA, K.C. DAS
CITATION: 1962 AIR 240 1962 SCR (2) 904
CITATOR INFO :
R 1966 SC1742 (7) RF 1968 SC 653 (9)
Criminal Appeal-Acquittal of some charges and
conviction others--Appeal by accused against conviction-Powers of appellate
court-If can set aside acquittal also-Code of Criminal Procedure, 1898 (V of
1898), s. 423 (1) (b).
The accused was tried for offences under s.
302 and s. 392 Indian Penal Code. The Sessions judge acquitted her under s. 302
and s. 392 but convicted her under s. 411 Indian Penal code. The accused
appealed to the High Court against her conviction under s. 41 1. 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. 41 1 as well asthe order of acquittal 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 (1) (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 order 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 (1) (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 by s. 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 finding of acquittal.
Kishan Singh v. The King-Emperor, (1928) L.R.
55 I.A. 390 and Jayaram Vithoba v. The State of Bombay, (1935) 2 S.C.R. 1049,
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 222 of 1959.
Appeal by special leave from the judgment 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. 112 of 1961.
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
in Cr. A. No. 222/59.
P. Ram Reddy, for respondent.
906 P.Ram Reddy, for appellant in Cr. A. No.
K.R. Chaudhuri and T. M. Sen, for the
1961. July 24. The Judgment of the Court was
delivered 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(1)(b) of the Code of Criminal
Procedure. In dealing with an appeal preferred by a convicted person against
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(1)(b) reverse the
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 been a difference 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 the 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 Andhra Pradesh with
having committed offences punishable under s. 302 and s. 392 of the Indian
Penal Code. The case against her was that on December 27, 1956 at about night
meal-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 had robbed the
said victim of her four pairs of gold Konakammulu and. a pair of gold Alakalu
and thereby committed 'the offence of robbery under 907 s. 392. On April 16,
1957 the learned trial judge found that the charges against the respondent
under ss. 302 and 392 had 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 her of the
said offence and sentenced her to undergo rigorous imprisonment for a period of
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 resulted in the case "and
the only way to rectify this is to order the retrial of the case on the
original charges under ss. 302 and 392 of the Indian Penal Code so thatthe
accused may be properly tried thereon and,if found guilty, convicted for the
offence or 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
trial in 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 of autrefois acquit thus raised by
the respondent was challenged by the appellant, and it was 'urged that by
virtue of the order passed by the High Court ordering her retrial the trial
court in law was 908 bound to proceed with the retrial. The trial judge upheld
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, as placed before a Full Bench because 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 1. 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.? The answer given by the Full Bench to the first, 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 therein 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 accused to plead the bar of autrefois 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) or S. 439 of the
Code of Criminal Procedure. As a result of these answers the revisional
application preferred by the respondent was 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 392 of the Indian Penal Code cannot be proceeded with., This
order was 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 appeal we ire concerned with the provisions of s.423(1) (b).
However, it is convenient to read s. 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 under section 411A, subjection (2) or section 417, the accused, if he
appears, the Court may, if it considers that there is no sufficient ground. for
interfering, dismiss the appeal, or may910 (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, (1) reverse
the finding and sentence, and acquit or discharge the accused or order him to
be retried by a Court of competent 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
106, sub-section (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 accused 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 forum 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 Sessions is An Appellate Court, but
no appeal against an order of acquittal passed by any 911 of the aforesaid
authorities can lie to, the Court of Sessions. 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 by s. 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 in s. 423(1) (b) (2).
Section 423(1) (b) (1) in terms deals with an
appeal from a conviction, and it empowers the Appellate Court to reverse the
findings and sentence and acquit 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 opinion s.
423 (1) (b) (1) is, therefore, clearly
confined to cases of appeals preferred against orders of conviction and
sentence, and the powers exercisable under it are therefore 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 offence charged and found proved. There can thus. be no
doubt that the order passed by Naidu, J. cannot be justified under this clause.
912 At this stage it would be relevant to
point out that Naidu, J. did not purport 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 not defended by a
lawyer. So he ordered Mr. A. Gangadhara Rao, an Advocate of' the Court, to
appear amicus curiae to argue the pea on behalf of the respondent; but, as the
Full Bench has pointed, out, the record clearly shows that neither the
respondent nor her pleader was given notice under s' 439(2) of the Code, and
even the advocate appointed amicus curiae did not know much less the respondent
herself that the learned judge intended to exercise his powers under s.439
against the respondent in respect of the offences under ss.302 and 392 despite
the fact that the appellant had not preferred an appeal against the order of
acquittal passed in favour of the respondent on those grounds. Therefore, it is
unnecessary for us to consider in this appeal the question about the scope and
effect of the provisions of ss.423 and 439 of the Code read together. The only
provision under which the order passed by Naidu J. is seriously sought to be
supported is s.423 (1) (b) (2) and it is to that provision that we must now
It is urged by Mr. Choudhury on behalf of the
appellant that in construing the expression "alter the finding" it
would be necessary to remember that when the High Court deals with an appeal
against conviction the proceedings in the Appellate Court are in substance a
continuation of the proceedings in the trial court and so the entire case is in
that sense pending before the Appellate Court. The argument is that in
exercising the powers conferred on it by s.423 (1)(b)(2) the High Court is not
confined only to the order of conviction which is directly 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 well-founded. The scheme of s. 423 itself clearly shows
that when appeals against conviction are brought before the Appellate Court by
the convicted person it is 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 accused person can be challenged by an appeal
as provided by s.417 of the, Code, and s.423(1) (a) therefore expressly deals
with the powers of the High Court in dealing with such appeals against orders of
acquittals. 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 is no doubt one; but where the accused person is
acquitted of some offences 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 acuittal is not challenged by the State then it is only
the order of conviction that falls to be considered by the Appellate Court and
not the order of acquittal. Therefore the assumption that the whole case is
before the High Court when it entertains an appeal against conviction 914 is
not well-founded and as such it cannot be pressed into service in construing
the expression "alter the finding".
In this connection we ought to recall the
fact that it is only the High Court which is authorised to entertain appeals
against acquittal under s.417 of the Code. But the provisions of s.423 (1) (b)
are applicable to all the Appellate Courts and so the meaning 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 acquittal 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, therefore, inclined to bold 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 (1) (a) should have been enacted at all. From
the very fact that s. 423 (1) (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 to deal with orders
of conviction are dealt with separately and exclusively under s. 423 (1) (b).
The scheme of s. 423, therefore, is inconsistent with the argument that cl. (2)
of S.423 (1) (b) covers orders of acquittal and empowers the Appellate Court to
alter the said orders., 915 As a matter 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(1)(b)(1) 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(1)(b)(2) emphatically refers to the
sentence and requires that despite the alteration of the finding the sentence
must be maintained. In other words, the finding and the sentence go together
and the clause provides that, even if the finding is altered the sentence may
be retained. Similarly, the sentence may be reduced with or without altering
the finding. The reference to the sentence in both 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 person. 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 deals with cases where 917 separately enacted in
order to empower the High Court in the interest of justice to examine the
orders of acquittal and if it is satisfied that in any case, the order of
acquittal needs to be revised the High 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 could
have intended to confer a similar power on the High Court under s. 423 (1) (b)
In this connection we ought to deal with
another argument which is sometimes dressed into service in support of the
wider construction of the clause 'falter the finding". It is said that the
provisions of s. 439 apply-to cases where there is a complete and express order
of acquittal, whereas a. 423 (1) (b) (2) covers cases of implied and partial
acquittal. It is also urged that whereas there is a specific provision made in
s. 439 (4) by which the High Court is precluded from converting a finding of
acquittal into one of conviction there is no such limitation in s. 423. Both
these arguments do not appear to us to be well founded. In regard, to the
argument of implied acquittal being open to review by the High Court under
s.423 (1) (b) (2) it would be enough to refer to at decision of the Privy
Council where this argument has been rejected. In Kishan Singh v. The
King-Emperor (1) the appellant had been tried by a Sessions Judge under s. 302
on a charge of murder. He was convicted under S.304 of culpable homicide not
amounting 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 the appellant
under s. 304 the trial court did not record a specific order of acquittal for
the 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.
918 convicted of murder and that the sentence
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 in s.
439, sub s. (4) refers only to cases 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 subsection." 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 that s. 423 (1) (b) (2) covers cases of implied or
partial acquittal a 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 had 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 establishes Chat in exercising the powers conferred on it by
s. 423 (1) (b) the 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 in s. 439(4) it is obvious that no such
limitation could have been prescribed in regard to the provisions of s. 423
(1)(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 bold that the Full Bench of the Andhra High Court was right in
coming to the conclusion that Naidu, J. acted without jurisdiction in altering
the finding and order of acquittal 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. 41 1.
In this connection we way 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
Criminal 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 the 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, Venkatararia Ayyar, J. observed there is nothing about (1) (1955) 2 S
C. R. 1049.
920 the transposition of the sentence under
s. 423 (1)(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 seem to take the same view of the scope and effect of the
provisions of s. 423(1)(b) as we are inclined to do.
As we have already indicated at the
commencement of this judgment;, on the question raised for our decision in the
present appeal there has been conflict of judicial opinion.
We do not, however, propose to consider the
several decisions to which our attention was drawn because, in our opinion, no
useful purpose would be served by examining the facts in all those cases and
subjecting to scrutiny the reasons adopted for arriving at different
conclusions. We would, therefore, content ourselves with the broad statement
that respondent has relied upon the decisions in Indra Kumar Nath v. The State
(1). The State v. Amlesh Chandra Ray. ( 2), Fulo v. State (3) (Full Bench), and
Taj Khan v. Rex (4) (Ful Bench), whereas the appellant has relied upon the
decisions in Krishna Dhan Mandal v. Queen-Empress (5), Queen-Empress v.
Jabanulla (6), (1) 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.
1932 All. 369.
(5) (1895) I.L.R. 22 Cal. 377. (6) 1896
I.L.R. 23 Cal. 975.
921 In Re Illuru Lakshmaih, (1) Golla
Hanumappa v. Emperor,' (2) Re K. Bali Reddi, (3) In Re Rangiah, (4) Baua Singh
v. The Crown (5) (Full Bench) and the majority judgment in Emperor v. Zamir
Qasim (6) The minority view expressed by Mulla J. in Emperor v. Zamir Qasim(6)
contain a careful and exhaustive 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. arised 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 (1)(b)(2) and as such
can be treated to be without jurisdiction and there for e 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.
922 Mr. Rama Reddy, who appeared for the' respondent
at our instance, to make an application for special leave against the order
passed by Naidu J. Accordingly Mr. Rama Reddy has made an application, Special
Leave Petition (Criminal) No. 476 of 1961, for special leave and has prayed-for
excuse of delay made in filing it. Having regard to the very unusual
circumstances in which the 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 against
the order in question. In fairness we ought to add that Mr. Choudhury did not
resist the respondent's prayer for excuse of delay in the present case. Since
we are now possessed of an appeal, Criminal Appeal No. 112 of 1961, filed by
special leave against the judgment and order of Naidu J. the question as to
whether the Full Bench could have considered the validity of the said judgment
and order has become a matter of academic importance. There can be no doubt
that in. the appeal preferred by the respondent against the said order it is
certainly open to her to challenge its validity, and as we have come to the
conclusion that the order passed by Naidu T. is without jurisdiction we have no
difficulty in allowing the respondent's appeal and setting aside the, said
In the result Criminal Appeal No. 112 of 1961
preferred by the respondent Thadi Narayana'is allowed and the High" Court's
order passed in Criminal Appeal No. 237 of 923 1957 by which case against her
had been sent back for retrial on the original charges against her under ss.
302 and 392 of the Indian Penal Code is set aside. The consequence of this
decision is that the order of acquittal passed in her favour by the trial court
ill respect of the said offences is restored. The State has not preferred any
appeal against the High Court's decision in Criminal Appeal 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 circumstances 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 dismissed.
Criminal Appeal No. 11 2 of 1961 allowed.