Kapil Deo Shukla Vs. The State of
Uttar Pradesh [1957] INSC 84 (14 October 1957)
SINHA, BHUVNESHWAR P.
MENON, P. GOVINDA KAPUR, J.L.
CITATION: 1958 AIR 121 1958 SCR 640
ACT:
Jury trial-Evidence in English-jurors not knowing
English well-Whether trial void-Prejudice-Memorandum of appealPractice of not
setting out specific grounds, if Proper-Code of Criminal Procedure (V of 1898),
ss. 418 and 419.
HEADNOTE:
The appellant was tried by a Sessions judge
and a jury for offenses under ss. 477-A and 408, Indian Penal Code. A large
volume of documentary evidence was in English and the statement of one of the
principal witnesses was given in English. The main question for decision was
the authorship of the forged documents. It was found that the jurors were not
well versed in English and were not in a position to decide the main question.
The jury returned a unanimous verdict of not guilty and accepting the verdict
the Sessions judge acquitted the appellant. The State appealed to the High
Court. In the memorandum of appeal only one ground was taken, "that the
order of acquittal is against the weight of evidence on the record and contrary
to law." The High Court accepted the appeal and convicted the appellant.
The appellant contended that the appeal before the High Court was incompetent
as no particular errors of law, upon which alone an appeal lay under S. 418,
Code of Criminal Procedure, were set out in the memorandum of appeal and that
the trial in the Session Court was no trial in the eye of law.
641 Held, that a memorandum of appeal is
meant to be a succinct statement of the grounds upon which the appellant
proposes to support the appeal. The practice prevailing in the Allahabad High
Court of not taking specific grounds either of law or fact is to be disapproved
even assuming that s. 419 of the Code of Criminal Procedure does not in terms
require the setting out of such grounds.
Held further, that the trial before the
Session judge was coram non judice on account of the incompetence of the jury
to decide the question of the authorship of the forged documents. In such a
case the question of prejudice does not arise as it is not a mere irregularity,
but a case of "mis-trial." Ras Behari Lal v. The King Emperor, (1933)
L.R. 60 I.A. 354 followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 82 of 1957.
Appeal by special leave from the judgment and
order dated the 12th August, 1953, of the Allahabad High Court in Criminal
Appeal No. 114 of 1951 arising out of the judgment and order dated the 31st
July, 1950, of the Court of the Additional Sessions Judge at Allahabad in
Criminal Sessions Trial No. 22 of 1949.
S. P. Sinha and B. C. Misra, for the
appellant.
G. C. Mathur and C. P. Lal, for the
respondent.
1957. October 14. The following Judgment of
the Court was delivered by SINHA J.-This appeal by special leave is directed
against the judgment and order dated August 12, 1953, of a Division Bench of
the Allahabad High Court (Desai and Beg JJ.), setting aside the order of acquittal
passed by the learned Additional Sessions Judge at Allahabad, dated July 31,
1950, in Sessions Trial No. 22 of 1949. The appellant bad been charged under
ss. 408 and 477A of the Indian Penal Code, and tried by jury of 5. The jury
returned a unanimous verdict of not guilty. The learned Additional Sessions
Judge accepted the verdict of the jury and acquitted the accused. On appeal by
the Government of Uttar Pradesh, the High Court in a judgment covering about
130 typed pages set aside the order of acquittal and 642 convicted the
appellant under the sections aforesaid, and sentenced him to rigorous
imprisonment for four years and a fine of ten thousand rupees, in default of
payment, further rigorous imprisonment for one year, under s. 408, Indian Penal
Code, and to rigorous imprisonment for four years under s. 477A, Indian Penal
Code, the sentences of imprisonment under the two sections to run
consecutively.
Out of the fine, if realized, seven thousand
rupees was directed to be paid to the Imperial Bank of India, Allahabad, as
compensation. The prayer for a certificate of fitness for appeal to this Court
was refused. The appellant moved this Court and obtained special leave to
appeal by order dated December 15, 1953.
In the view we take of the legality of the
trial in this case, it is not necessary to go into the details of the
prosecution case except to state that the appellant was charged under the
sections aforesaid, for having committed criminal breach of trust in respect of
valuable securities amounting to Rs. 7,410 odd of the Imperial Bank at
Allahabad, while in the employment of the Bank as a clerk, and had in that
capacity, " with intent to defraud, destroyed, altered, mutilated and
falsified accounts and other papers " during January to July, 1946.
A number of contentions were raised before us
by the learned counsel for the appellants, but it is necessary to notice only
two of them, namely, (1) that the appeal by the State of Uttar Pradesh, to the
High Court, should not have been entertained as the memorandum of appeal did
not comply with the requirements of law as laid down in ss. 418 and 419 of the
Code of Criminal Procedure; and (2) that the trial in the Sessions Court was no
trial at all in the eye of law.
In respect of the first contention, it is
enough to say that though the memorandum of appeal filed in the High Court was
wholly inadequate, the defect was not such as to render it null and void so as
to entitle the High Court to reject it in liming. The point arises in this way:
Apart from the prayer, the only ground taken in the petition of appeal is
" that the order of acquittal is against the weight of evidence 643 on the
record and contrary to law." The argument is that under s. 418 of the
Criminal Procedure Code, where a trial is by jury, "the appeal shall lie
on a matter of law only ", and as no particular error of law is set out in
the memorandum of appeal, the consequence of this serious omission, it is
further contended, is that in the eye of law, this was no petition of appeal at
all, which could have been entertained by the High Court. This contention was
raised before the High Court by way of a preliminary objection to the
maintainability of the appeal. The High Court overruled that objection on the
ground that s. 419 which is the specific provision of the Code of Criminal
Procedure, relating to petition of appeal, only requires that it shall be in
writing and accompanied by a copy of the judgment or order appealed against,
and in cases tried by jury, a copy of the heads of the charge recorded under a.
367 of the Code. The High Court observed that there is no provision in the Code
which required that the petition of appeals should specify the matters of fact
or of law, on which the appeal is based. The Court also referred to the prevailing
practice in that Court according to which no specific grounds are taken either
on fact or on law.
According to the High Court, there was no
difference between an appeal based on facts and an appeal based only on
questions of law, as in the case of a jury trial. In view of these
considerations, the High Court held that the preliminary objection was not
well-founded in law.
Assuming that the High Court was correct in
its appreciation of the legal position, even so, we must express our
disapproval of any such practice as has been referred to in the judgment below.
A memorandum of appeal is meant to be a succinct statement of the grounds upon
which the appellant proposes to support the appeal. It is a notice to the Court
that such and such specific grounds are proposed to be urged on behalf of the
appellant, as also a notice to the respondent that he should be ready to meet
those specific grounds. A memorandum of appeal with a bald ground like the one
quoted above is of no help to any of the parties or to the Court. It may have
the 644 merit of relieving the person responsible for drawing up the ground of
appeal, of applying his mind to the judgment under appeal and its weak points,
but this slight advantage, if it is so, is very much out-weighed by the serious
disadvantage to the parties to the litigation and the Court which is to hear
the appeal. Such a bald statement of the grounds leaves the door wide open for
all kinds of submissions, thus, tending to waste the time of the Court, and
taking the respondents by surprise. It is a notorious fact that courts,
particularly in the part of the country from where this appeal comes, are
over-burdened with large accumulations of undisposed of cases. The parties
concerned and their legal advisers should concentrate and focus their attention
on the essential features of cases so as to facilitate speedy, and
consequently, cheap administration of justice. It may be that a bald ground
like the one noticed above, was responsible for the inordinately long judgment
of the High Court. Such a practice, if any, deserves to be discontinued and a
more efficient way of drawing up grounds of appeal has to be developed. If
counsel for the parties to a litigation concentrate on the essential features
of a case, eliminating all redundancies, the argument becomes more intelligible
and helpful to the Court in focusing its attention on the important aspects of
the case. As the appeal succeeds on the second ground, as will presently
appear, we need not say anything more on the first ground.
The second ground on which, in our opinion,
the appeal must succeed, is based on the findings of the High Court itself This
case involved a consideration of a large volume of documentary evidence almost
all in English. The oral evidence was directed mainly to connect those
documents and to explain their bearing on the charges framed against the
accused, of criminal breach of trust and falsification of relevant accounts and
entries in the registers maintained by the Bank. Mr. Ganguli, prosecution witness
No. 26 -Agent of the Bank-was examined at great length, and be gave his
evidence on 12 days between October and December, 1949, It runs into about 45
typed pages. This 645 evidence appears to have been given by him in English
because he put in an application that he had given the evidence in English and
that he was not in a position to say whether the Hindi version as recorded by
the deposition writer was the correct version, as he was not familiar with
Hindi. The High Court had made the following observations as to the nature of
the case and the requisite qualifications of the members of the jury necessary
for a proper under. standing of the case:
" We consider that the instant case was
not fit to be tried by a jury at least by any ordinary jury. It was a very
complicated case in which a mass of documents was produced.
The decision of the case rested upon the
question by whom the various documents were written or prepared. Those
documents are all in English and nobody could decide the case satisfactorily
unless he had a good knowledge of English and was in a position to judge the
writing. The offences with which the respondent was charged were under a
Government order triable by a jury and the case had to be tried by a jury
unless the Government thought fit to revoke or alter the order. The Government
did not revoke or alter the order and did not even declare that the case should
be tried by a special jury under s. 269(2), Criminal Procedure Code." In
our opinion, the remarks of the High Court quoted above give a correct
impression of the proceedings in the Court of Session. It further appears from
the judgment of the High Court that the learned Advocate General who argued the
case in support of the appeal on behalf of the State, urged that the jurors were
not equal to the task involved in a proper determination of the controversy.
The High Court directed the trial court to hold an inquiry and report on this
aspect of the case. On a consideration of the report submitted by that court,
the High Court recorded its finding to the following effect:
"Out of the five jurors selected by the
learned Sessions Judge, three had sufficient knowledge of English, fourth knew
very little English and could not 646 read the documents produced in the case
and the fifth also had not sufficient knowledge of English; he could understand
a letter written in English with some difficulty and could not read English
newspapers. This is what we find from a report made by the learned Sessions
Judge after summoning the jurors and examining them on a letter issued by us.
We are satisfied that the two jurors, Shri Sheik Ashique Ali and Shri Farman
Ali, were not in a position to decide the question of authorship of the forged
documents satisfactorily. It was not merely a question of understanding the
contents of the documents produced in the case the jurors also had to decide
whether they were written or signed by the respondent as deposed by the
prosecution witnesses or not. They did not possess sufficient acquaintance with
English to decide that question satisfactorily." On that finding, it is
clear that the appellant's contention that it was a trial coram non judice is
well-founded. This case is analogous to the case of Ras Behari Lal v. The King
Emperor (1), which went up to the Judicial Committee of the Privy Council, from
a judgment of the Patna High Court confirming the conviction and the sentences
of the accused persons on a charge of murder and rioting. In that case, the
trial was by a jury of 7. The jury by a majority of six to one found the
accused guilty. The learned trial judge accepted the verdict and sentenced some
of the accused persons to death. The High Court overruled the accused persons'
contentions that there was no legal trial because some of the jury did not know
sufficient English to follow the proceedings in Court. The Judicial Committee
granted special leave to appeal on a report made by the High Court that one of
the jurors did not know sufficient English to follow the proceedings in Court.
Before the Judicial Committee, it was conceded, and in their Lordships' view,
rightly, by counsel for the prosecution that the appellants had not been tried,
and that, therefore, the convictions and sentences could not stand. Lord Atkin,
who delivered the judgment of the Judicial Committee, made the following1)
(1933) L.R. 60 I.A. 354, 357.
647 observations upon the concession made by
counsel for the respondent:
" In their Lordships' opinion, this is
necessarily the correct view. They think that the effect of the incompetence of
a juror is to deny to the accused an essential part of the protection accorded
to him by law and that the result of the trial in the present case was a clear
miscarriage of justice. They have no doubt that in those circumstances the
conviction and sentence should not be allowed to stand." In our opinion,
the legal position in the instant case is the same. It was., however, argued on
behalf of the State Government that in the instant case, the jury had returned
a unanimous verdict of not guilty and that, therefore, there was no prejudice
to the accused persons. It is true that the incompetence of the jury empanelled
in this case was raised by the counsel for the State Government in the High
Court but in view of the findings arrived at by the High Court, as quoted
above, the position is clear in law that irrespective of the result, it was no
trial at all The question of prejudice does not arise because it is not a mere
irregularity. but a case of "mis-trial", as the Judicial Committee
put it. It is unfortunate that a prosecution which has been pending so long in
respect of an offence which is said to have been committed about eleven years
ago, should end like this but it will be open to the State Government, if it is
so advised, to take steps for a retrial, as was directed by the Judicial
Committee in the reported case referred to above.
The appeal is, accordingly, allowed and the
convictions and the sentences are set aside. We do not express any opinion on
the question whether it is a fit case for a de novo trial by a competent jury
or by a Court of Session without a jury, if the present state of the law
permits it. The matter will go back to the High Court for such directions as
may be necessary if the High Court is moved by the Government in that behalf.
Appeal allowed.
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