State of Gujarat Vs. Ramprakash, P.
Puri & Ors  INSC 288 (16 October 1969)
Code of Criminal Procedure (Act 5 of 1898),
ss. 417, 419- Bombay High Court Appellate Side Rules, 196O (as applicable to
Gujarat High Court, r. 6-Rule allowing joint appeal by persons aggrieved by
same judgment--Joint appeal by State against acquittal of several persons after
a joint trial whether maintanable.
The respondents were tried jointly and
acquitted by a common judgment. State of Gujarat filed a Joint appeal against
their acquittal in. the High Court. Rule 6 of the Bombay High Court Appellate
Side Rules, 1960 (which were applicable to the proceedings in the Gujarat High
Court) provided for joint appeals by persons aggrieved by a common judgment or
order. There was however no, rule specifically providing for similar joint
appeals by the State. A Division Bench of the High Court dismissed the joint
appeal by the State against the respondents on the ground that such an appeal
was not maintainable. The Division Bench held that the decision by a Full Beach
of the High Court in Lalu lela's case in which a contrary view had been taken
was not binding on the Division Bench. In appeal to this Court against the
judgment of the Division Bench.
HELD : (i) The Division Bench was in error-in
not treating as binding the earlier decision of a Full Bench of the same court
on the same question. 1877 A-F] Mahadeolal Kanodia v. The Administrator General
of West Bengal, 1960] 3 S.C.R. 578, Jai Kaur & Ors. v. Sher Singh etc.
 3 S.C.R. 975, Atma Ram v. State of Punjab & Ors.
 1 S.C.R. 748, Jaisri Sahu v. Rai
Dewan, [19621 2 S.C.R. 559 and Budha Singh v. Laltu Singh, I.L.R. 37 All.
604 (P.C.), applied.
(ii) Rule 6 of the Bombay High Court
Appellate Side Rules does not in terms cover the case of an appeal by the State
against several accused persons jointly tried and acquitted by the trial court
by a common order, but if an appeal by persons jointly tried and convicted is
competent, then on principle it is difficult to negative the maintainability of
one appeal by the State against a common order acquitting several persons tried
jointly. Like all rules of procedure this rule demands a construction which
would' promote the cause of justice and not obstruct it. (878 D-F] A joint
appeal by the State against several accused persons acquitted at a joint trial
is not contrary to any provision of the Code of Criminal Procedure and is
therefore not legally prohibited. Sections 258, 410, 417, 419 or 423 of the Code
do not indicate any bar as was suggested by the order of the High Court. Indeed
the plain reading of s. 417 which pro%ides for an appeal in a case and not
against an accused person, seems to be wide enough to permit -,A joint appeal.
The matter being one of mere form it calls for a liberal approach requiting the
appeal to be beard on its merits. The order of the High Court must accordingly
be set aside. [878 G-H; 879 C-F] 876 Rabari Ghela jadav V. State of Bombay,
A.I.R. 1960 S.C. 748, ,explained.
Lalu Jela. v. State of Gujarat, A.I.R. 1962
Guj. 125, approved.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 60 and 63 of 1965.
Appeals from the judgment and order dated
November 20, 1963 of the Gujarat High Court in Criminal Appeals Nos. 957 and
796 of 1963 respectively.
Urmila Kapur and S. P. Nayar, for the
The respondent did not appear.
The Judgment of the Court was delivered by
Dua, J. These two criminal appeals (Nos. 60 and 63 of 1965) with certificate
raise a common question and are, therefore, being disposed of by a common
judgment. The Gujarat High Court also recorded the main judgment only in
Criminal Appeal No. 60 of 1965.
The question which arises for determination
is whether, several accused persons jointly tried have been acquitted by the
trial Court, the state can' prefer one appeal against the acquittal of all of
them. The High court held such a joint appeal not to be maintainable under Cr.
P.C. and so holding rejected the appeal by the State without going into the
merits. The Division Bench of the ,High Court speaking through Raju, J.
recorded a very lengthily order though the reasoning in support of the
non-maintainability of the joint appeal is confined to a couple of pages only.
The High Court in its order referred to ss 258, 410, 417, 419 and 423 of the
Code and came to the conclusion that the scheme of Chapter XXXI of the Code as
disclosed by these sections and particularly by S. 419 is against the
maintainability of a joint appeal by the State against an order acquitting
several accused persons tried jointly. Section 419 was construed by the High
Court to contain a bar against a joint appeal. The major portion of the
impugned order dealt with the question of binding character of the Full Bench
decision of that High Court since reported as Lalu Jela v. State of Gujarat(1)
on the Division Bench hearing the present appeals. After a lengthy ,discussion
the Division Bench came to the conclusion that the Full Bench decision holding
a joint appeal to be maintainable in law was not binding on it.
On the view that we propose to take on the
question of main- tainability of a joint appeal against a common order
acquitting (1) A.I.R. 1962 Guj. 125.
877 several accused persons tried jointly, we
do not consider it necessary to embark on a lengthy discussion on the question
of binding charter of decisions of Full Benches and of Division Benches on
future Benches of co-ordinate jurisdiction of the same High Court. We may only
make a passing reference to the decisions of this Court cited at the bar in
support of such binding character. In Mahadeolal Ranodia v. The Administrator
General of West Bengal(1), this Court observed as follows :
"We have noticed with some regret that
when the earlier decision of two judges of the same High Court in Beorajan's
an's case was cited before the learned judges who heard the present appeal they
took on themselves to say that the previous decision was wrong, instead of
following the usual procedure in case of difference of opinion with an earlier
decision, of referring the question to a lar- ger Bench. Judicial decorum no
less than legal propriety forms the basis of judicial procedure. If one thing
is more necessary in law than any other thing, it is the quality of certainty.
That quality would totally disappear if judges of co-ordinate jurisdiction in a
High Court start overruling one another's decision. If one Division Bench of a
High Court is unable to distinguish a previous decision of another Division
bench and holding the view that the earlier decision is wrong itself gives
effect to that view, the result would be utter confusion." Other decisions
cited containing similar observations are :
jai Kaur and others v. Sher Singh etc. (2 )
and Atma Ram v. State of Punjab and others(3). We are aware of a still more
recent decision of this Court in Jaisri Sahu v. Rai Dewan (4) in which re
Ference is made to a Privy Council decision in Budha Singh v. Laltu Singh(5).
The question of competency of a joint appeal
by several per- sons convicted by one order at a joint trial was referred for
authoritative decision to a Full Bench of the Gujarat High Court in Lalu Jela's
case(6). The argument before the Full Bench was that r. 6 in Chapter XXVI of
the Bombay High Court Appellate Side Rules (which are applicable to the
proceedings in Gujarat High Court) was inconsistent with Chapter XXXI of the
Code of Criminal Procedure, with the result that a joint appeal to the High
Court by several persons convicted at a joint trial was not maintainable.
The Full Bench on an exhaustive discussion
held such (1) 3.S.C.R. 78 (2)  3 S.C.R. 975.
(3)  1 S.C.R. 748. (4)  2 S.C.R.
(5) I.L.R , 37 All, 604 (P.C.). (6) A.I.R.
1962 Guj. 125.
878 an appeal to be competent and did not
consider r. 6 to be inconsistent with Chapter XXXI of the Code. The decision of
this Court in Rabari Ghela Jadav. State of Bombay(1) was explained and
distinguished. If we agree with the principle accepted in the Full Bench
decision then the present appeals would on the reasoning of that decision seem
prima facie to possess merit and in the absence of some other cogent reason to
the contrary the appeals would have to succeed.
Chapter XXVI of the Bombay High Court
Appellate Side Rules, 1960 deals with "criminal business" and r. 6 is
in the following words "Joint appeal or application by persons affected by
the same judgment.
6. All persons aggrieved,by a judgment or an
order passed in a criminal case, may join in one appeal or application for
revision, and one copy of the judgment or order complained of shall be
sufficient." This rule, of course, does not in terms cover the case of an
appeal by the State against several accused persons jointly tried and acquitted
by the trial Court by a common order, but if an appeal by persons jointly tried
and convicted is competent, then on principle it is difficult to negative the
maintainability of one appeal by the State against a common order acquitting
several persons tried jointly. This rule deals with a matter of procedure and
not of Substantive rights and seems to be based on sound commonsense.
Procedure has been described to be a
hand-maid and not a mistress of law, intended to subserve and facilitate the
cause of justice and not to govern or obstruct it. Like all rules of procedure,
this rule demands a construction which would promote this cause. So construed a
joint appeal, in compliance of this rule must be sustained. The power to frame
this rule is specifically conferred on the High Court by s. 554(2)(c) Cr. P.C.
and r. 6 does not seem to us to be inconsistent with any provisions of the said
Code. Holding this rule to be valid, in agreement with the decision of the Full
Bench, the competency of a joint appeal by several accused persons convicted at
one trial must be upheld. On the same reasoning a joint appeal by the State
against several accuses. persons acquitted at a joint trial has also to be held
not to be contrary to any provision of the Code and therefore not legally
prohibited. Section 419 of the Code on which the High Court seems to have
relied in support of the non-maintainability of a joint appeal by the State,
lays down inter alia that every appeal shall be made in the form of a petition
in writing presented by the appellant (1) A.I.R, 1960 S.C. 748.
879 or his pleader and every such petition
shall, unless the court otherwise directs, be accompanied by a copy of the
judgment or order appealed against. This section does not seem to us to
prohibit a joint appeal by the State against more than one accused persons. The
contrary view taken by the, High Court on the construction of this section is
clearly unacceptable. Section 417 which provides for an appeal in a case of
acquittal empowers the State Government to direct the public prosecutor in any
case to present an appeal from an order of acquittal. This section also does
not suggest any bar or prohibition against presentation of a joint appeal
against several accused persons acquitted in a case. On the other hand, it
provides for an appeal in a case, and not against an accused person, who has,
been acquitted. The plain reading of this sections therefore., seems to be wide
enough to permit a joint appeal. Sections 258, 410 and 423 of the Code also do
not seem to indicate any bar as is suggested by the order of the High Court.
This Court in Rabari Ghela Jadav's case(1),
on the basis of which the judgment of the High Court mainly proceeds, merely
lays down that the Appellate Court hearing an appeal cannot admit it only on a
question of sentence and that such a restricted order of admission being
invalid, the appellant would be entitled to insist that his appeal should be
heard on the merits. This decision, in Our opinion, does not militate against
the maintainability of a joint appeal. The Full Bench decision of the Gujarat
High Court rightly distinguished and explained this decision. As observed
earlier, once we accept the Full, Bench to lay down the correct rule of law,
then there cannot be much difficult in upholding the maintainability of a joint
appeal by the State against several accused persons acquitted at a joint trial.
There being no legal bar (at least we are
aware of none either in the Cr. P.C. or elsewhere), such an appeal cannot be
held to suffer from any serious legal infirmity. And then the matter being one
of mere form it calls for a liberal approach requiring the appeal to be heard
on the merits. To hold it to be un-maintainable on this ground would defeat the
larger cause of justice. Unfortunately, we did not have the advantage of
arguments on behalf of the respondents because they were unrepresented, but on
considering the scheme of the relevant provisions of the Code of Criminal
Procedure, we are of the view that the High Court was wrong in holding the
joint appeal not to be maintainable and in summarily rejecting the same.
We accordingly allow the appeal, set aside
the order of the High court and remit the case back to it for decision of the
appeal on the merits.
G.C. Appeal allowed.
(1) A.I.R. 1960 S.C. 748.