The State of Uttar Pradesh V. C. Tobit
& Ors  INSC 9 (14 February 1958)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA SARKAR, A.K.
CITATION: 1958 AIR 414 1958 SCR 1275
Criminal Procedure-Petition of appeal-If must
be accompanied by certified copy of judgment or order appealed against-Code of
Criminal Procedure (Act V of 1898), s. 419.
The word 'Copy' occurring in s. 419 Of the
Code of Criminal Procedure means a certified copy and a petition of appeal
filed under that section must, therefore, be accompanied by a certified copy of
the judgment or order appealed against.
Ram Lal v. Ghanasham Das, A.I.R. (1923) Lah.
150, referred to.
Firm Chota Lal-Amba Parshad v. Firm Basdeo
Mal-Hira Lal, A.I.R. (1926) Lah. 404, distinguished.
Consequently, where a State Government filed
an appeal against an order of acquittal under s. 417 of the Code of Criminal
Procedure with a plain copy of the judgment appealed against and put in a
certified copy of it after the period of limitation prescribed for the appeal
had expired and the High Court dismissed the appeal as time-barred, that order
was correct and must be affirmed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 128 of 1955.
Appeal from the judgment and order dated
February 8, 1955, of the Allahabad High Court in Government Appeal No. 165 of
1954, arising out of the judgment and order dated July 24, 1953, of the Court
of the Civil and Sessions Judge at Gorakhpur in Sessions Trial No. 5 of 1953.
G. C. Mathur and C. P. Lal, for the
S. N. Andley, for the respondents.
1958. February 14. The following Judgment of
the Court was delivered by DAS C. J.-The respondents before us were put up for
trial for offences under ss. 147, 302, 325 and 326, Indian Penal Code read with
s. 149 of the same Code. On July 24, 1953, the temporary Civil Sessions Judge,
Gorakhpur, acquitted them, The State of Uttar Pradesh apparently felt aggrieved
by this acquittal and intended to appeal to the High Court under s. 417 of the
Code of Criminal Procedure. Under art. 157 of the Indian Limitation Act an
appeal under the Code of Criminal Procedure from an order of acquittal is
required to be filed within six months from the date of the order appealed
The period of limitation for appealing from
the order of acquittal passed by the Sessions Judge on July 24,1953, therefore,
expired on January 24, 1954. That day being a Sunday the Deputy Government
Advocate on January 25, 1954, filed a. petition of appeal on behalf of that
State. A plain copy of the judgment sought to be appealed from was filed with
that petition. The High Court office immediately made a note that the copy of
the judgment filed along with the petition of appeal did not appear to be a
certified copy. After the judicial records of the case had been received by the
High Court, an application for a certified copy of the judgment of the trial
court was made on behalf of the State on February 12, 1954. The certified copy
was received by the Deputy Government Advocate on February 23,1954 and he
presented it before the High Court (in February 25, 1954, when Harish Chandra
J. made an order that the certified copy be accepted and that three days'
further time be granted to the appellant for making an application under s. 5
of the Indian Limitation Act for condoning the delay in the filing of the
certified copy. Accordingly an application for the condonation of delay was
made by the appellant on the same day and that application was directed to be
laid before a Division Bench for necessary orders.
The application came up for hearing before a
Division Bench consisting of M. C. Desai and N. U. Beg JJ. Ai the hearing of
that application learned counsel appearing for the appellant urged that as there
was, in the circumstances of this case, sufficient cause for not filing the
certified copy along with the petition of appeal the delay should be condoned
and that, in any event, the filing of the plain copy of the judgment of the
trial court along with the petition of appeal constituted a sufficient
compliance with the requirements 1277 of s. 419 of the Code of Criminal
Procedure. By their judgment delivered on December 7, 1954, both the learned
Judges took the view that no case had been made out for extending the period of
limitation under s. 5 of the Indian Limitation Act and dismissed the
application and nothing further need be said on that point. The learned judges,
however, differed on the question as to whether the filing of a plain copy of
the judgment appealed from was a sufficient compliance with the law, M. C.
Desai J. holding that it was and N. U. Beg J. taking the contrary view. The two
Judges having differed they directed the case to be laid before the Chief
Justice for obtaining a third Judge's opinion on that question. Raghubar Dayal
J. to whom the matter was referred, by his judgment dated January 31, 1955,
expressed the opinion that the word " copy " in s. 419 meant a
certified copy, and directed his opinion to be laid before the Division Bench.
In view of the opinion of the third Judge, the Division Bench held that the
memorandum of appeal had not been accompanied by " a copy " within
the meaning of s. 419 and that on February 25, 1954, when a certified copy came
to be filed the period of limitation for appealing against the order of
acquittal passed on July 24, 1953, had already expired and that as the
application for extension of the period of limitation had been dismissed the
appeal was time barred and they accordingly dismissed the appeal. The learned
Judges, however, by the same order gave the appellant a certificate that the
case was a fit one for appeal to this Court. Hence this appeal.
Section 419 of the Code of Criminal
Procedure, under which the appeal was filed, provides as follows:- " 419.
Every appeal shall be made in the form of a petition in writing presented by
the appellant or his pleader, and every such petition shall (unless the Court
to which it is presented otherwise directs) be accompanied by a copy of the
judgment or order appealed against, and, in cases tried by a jury, a copy of
the heads of the charge recorded under section 367.
1278 The sole question raised in this appeal
is whether this section requires a petition of appeal to be accompanied by a
certified copy of the judgment or order appealed from. It will be noticed that
the section requires " a copy " of the judgment to be filed along
with the petition of appeal.
There can be no doubt that the ordinary
dictionary meaning of the word " copy " is a reproduction or
transcription of an original writing. As the section does not, in terms,
require a certified copy, it is urged on behalf of the appellant that the word
" copy " with reference to a document has only one ordinary meaning
namely: a transcript or reproduction of the original document and that there
being nothing uncertain or ambiguous about the word " copy ", no
question of construction or interpretation of the section can at all arise. It
is contended that it is the duty of the court to apply its aforesaid ordinary
and grammatical meaning to the word " copy " appearing in s. 419 and
that it should be held that the filing of a plain copy of the judgment along
with the petition of appeal was a sufficient compliance with the requirements
of that section.
The matter, however, does not appear to us to
be quite so simple. A " copy " may be a plain copy, i. e., an un-
official copy, or a certified copy, i. e., an official copy.
If a certified copy of the judgment is
annexed to the petition of appeal nobody can say that the requirements of s.
419 have not been complied with, for a certified copy is none the less a "
copy ". That being the position a question of construction does arise as
to whether the word " copy " used in s. 419 refers to a plain copy or
to a certified copy or covers both varieties of copy. It is well settled that
" the words of a statute, when there is doubt about their meaning, are to
be understood in the sense in which they beat harmonise with the subject of the
enactment and the object which the Legislature has in view. Their meaning is
found not so much in a strictly grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in the occasion on
which they are used, and the object to be attained. " (Maxwell's
Interpretation of Statutes, 10th Edition, 1279 page 52). In order, therefore,
to come to a decision as to the true meaning of a word used in a Statute one
has to enquire as to the subject-matter of the enactment and the object which
the Legislature had in view. This leads us to a consideration of some of the
relevant sections of the Code of Criminal Procedure and other enactments having
a material bearing on the question before us.
Section 366 of the Code of Criminal
Procedure, which is in Chapter XXVI headed "Of the Judgment ",
requires that the judgment in every trial in any criminal court of original
jurisdiction shall be pronounced in open court and in the language of the
court. Section 367 requires every such judgment to be written by the presiding
officer (or from his dictation ) in the language of the court or in English,
containing the point or points for determination, the decision thereon and the
reasons for the decision. The judgment has to be dated land signed by the
presiding officer in open court. Except as otherwise provided by law, s. 369
forbids the court, after it has signed its judgment, from altering or reviewing
the same except to correct mere clerical errors. After the judgment is
pronounced and signed it has, under s. 372, to be filed with the record of
proceedings and becomes a part of the record and remains in the custody of the
officer who is in charge of the records.
Under s. 371, when an accused is sentenced to
death and an appeal lies from such judgment as of right, the court is to inform
him of the period within which he may, if he so wishes, prefer his appeal and
when he is sentenced to imprisonment a copy of the findings and sentence must
as soon as may be after the delivery of the judgment be given to him free of cost
without any application. This, however, is without prejudice to his right to
obtain free of cost on an application made by him, a " copy " of the
judgment or order and in trials by jury a " copy " of the heads of
charge to the jury. The copy that is supplied to the accused under sub-s. (4)
of s. 371 is not a full copy of the entire judgment, but the copies supplied to
him under sub- ss. (1) and (2) of s. 371 on application made by 1280 him are
full copies of the judgment or the heads of the charge to the jury as the case
may be. The copy of the findings' and the sentence which is supplied to the
accused under sub-s. (4) without his asking for the same is presumably to
enable him to decide for himself whether he would appeal against his conviction
and the sentence. The copies, which are supplied to the accused under sub-ss.
(1) and (2) on his application for such copies, are obviously full copies of
the entire judgment or the heads of charges as the case may be and are intended
to enable him to prepare his grounds of appeal should he decide to prefer one
and to file the same along with his petition of appeal as required by s. 419 of
the Code of Criminal Procedure. There are no provisions corresponding to s. 371
for giving any copy of the judgment to the State or the public prosecutor
representing the State in case of an act uittal. If, therefore, the State
desires to file an appeal against acquittal under s. 417 of the Code of
Criminal Procedure the State will have to -procure a copy of the judgment or
the heads of charge in order to enable it to file the same along with its
petition of appeal and thereby to comply with the requirements of s. 419.
According to s. 74 of the Indian Evidence Act a judgment, being the Act or
record of the act of a judicial officer, would be included in the category of
public documents. Under s. 548 of the Code of Criminal Procedure if a person
affected by a judgment desires to have a copy of the judge's charge to the jury
or of any order or deposition or other part of the record he has the right, on
applying for such copy, to be furnished therewith. A person desirous of such a
copy has to apply for it to the public officer having the custody of it and,
under s. 76 of the Indian Evidence Act, such public officer is bound to. give
that person, on demand, a copy of it on payment of the legal fees thereof
together with a certificate written at the foot of such copy that it is a true
copy of such document, that is to say, to supply to the applicant what is known
as a certified copy. Therefore, whether it is the accused person who applies
for a copy under s. 371 , 1281 sub-ss. (1) and (2) or it is the State which
applies for a copy, the copy supplied by the public officer must be a certified
copy. Then when s. 419 requires that a copy of the judgment or of the heads of
charge be filed along with the petition of appeal, it is not unreasonable to
hold that it is the certified copy so obtained that must be filed.
Under arts. 154, 155 and 157 of the Indian
Limitation Act the petition of appeal has to be filed within the time specified
in those articles. Obviously it may take a little time to apply for and procure
a certified copy. In order that the full period of limitation be available to
the intending appellant s. 12 of the Limitation Act permits the deduction of
the time requisite for obtaining the copy of the judgment or the heads of
charge in ascertaining whether the appeal is filed within time. A certified
copy of the judgment will on the face of it show when the copy was applied for,
when it was ready for delivery and when it was actually delivered and the court
may at a glance ascertain what time was requisite for obtaining the copy so as
to deduct the same from the computation of the period of limitation. Taking all
relevant facts into consideration, namely, that a St copy " of the
judgment has to be filed along with the petition of appeal, that the copies of
the judgment which the accused gets free of cost under s. 371 (1) and (2) read
with s. 76 of the Indian Evidence Act and which the State can obtain on an
application made by it under s. 76 of the last mentioned Act can only be
certified copies, that the time requisite for obtaining such copies is to be
excluded from the computation of the period of limitation all quite clearly
indicate that the copy to be filed with the petition of appeal must be a
Section 419 requires a copy of the judgment
or order appealed against to be filed not without some purpose. That purpose
becomes clear when we pass on to s. 421 of the Code of Criminal Procedure. That
section enjoins the court, on receiving the petition of appeal and copy of the
judgment or order appealed from under s. 419, to peruse the same and after 1282
perusing the same to do one of the two things, namely, if it finds that there
is no sufficient ground for interfering, to dismiss the appeal summarily or
when the court does not dismiss the appeal summarily, then under s. 422 to
cause notice to be given to the appellant or his pleader and to such officer as
the Provincial government may appoint in this behalf, of the time and place at
which such appeal will be heard and furnish such officer with a copy of the
grounds of appeal and in a case of appeal under s. 417, as in the present case,
to cause a like notice to be given to the accused. The act of summarily
rejecting the appeal or admitting it and issuing notice is necessarily a
judicial act and obviously it must be founded on proper materials.
The authenticity or correctness of the copy
of a judgment is also essential in order to enable the appellate court to make
interlocutory orders which may have serious consequences. In the case of an
appeal by the accused he may ask for the stay of the execution of the order,
e.g., of the realisation of the fine or he may move the court for bail.
Likewise in the case of an appeal by the State, the State may ask for the
accused to be apprehended and brought before the court under warrant of arrest.
Orders made on these applications are all judicial acts and accordingly it is
essential that the appellate court in order to take these judicial decisions
have proper materials before it.
Therefore, it is of the utmost importance
that the copy to be filed with the petition of appeal is a full and correct
copy of the judgment or order appealed against. Under s. 76 of the Indian
Evidence Act the public officer who is to supply a copy is required to append a
certificate in writing at the foot of such copy that it is a true copy and then
to put, the date and to subscribe the same with his name and official title.
Therefore, the production of a certified copy ipso facto and without anything
more will show ex facie that it is a correct copy on which the appellate court
may safely act. The fact that the appellate court is by law enjoined to peruse
the copy of the judgment and take judicial decision on it indicates that it
must have before it a correct copy of -the judgment 1283 and this further
indicates that the copy required to be filed with the petition of appeal under
s. 419 should be a certified copy which will ipso facto assure the appellate
court of its correctness.
It is said that the appellate court may not
summarily reject or admit the appeal or make an inter' locutory order until the
record is produced or until a certified copy of the judgment or order is
presented before it. There is no doubt that the court can under s. 421 of the
Code of Criminal Procedure call for the record of the case, but the court is
not bound to do so. The calling for the records in every case or keeping the
proceedings in abeyance until a certified copy is presented before the court is
bound to involve delay and there is no apparent reason why there should be any
delay in disposing of criminal matters involving the personal liberty of the
All this inconvenience may easily be obviated
if s. 419 be read and understood to require a certified copy to be filed along
with the petition of appeal.
Learned counsel for the appellant urges that
in case of urgency the court need not wait until the record or the certified
copy is received, but may call upon the appellant to adduce evidence to prove
the correctness of the judgment in order to induce the court to act upon it and
take a judicial decision thereon. In the first place there is no such procedure
envisaged in the Code of Criminal Procedure.
In the next place adoption of such a
procedure may cause much delay and in the third place no question ordinarily
arises under s. 419 of proving the correctness of the judgment under appeal in
the way in which a document is to be proved in order to tender it in evidence
in the case.
But assuming that the correctness of the
judgment under appeal is to be established then as soon as the appellant is out
to " prove" by oral evidence of witnesses the contents of the original
judgment so as to establish the correctness of the plain copy filed along with
his petition of appeal the question will immediately arise whether such
evidence is admissible under the law. As already stated s. 367 of the Code of
Criminal Procedure requires the judgment to be 163 1284 reduced to writing.
Section 91 of the Indian Evidence Act provides, inter alia, that in all cases
in which any matter is required by law to be reduced to the form of a document-
and a judgment is so required no evidence shall be given for the proof of the
terms of such matter except the document itself or secondary evidence of its
contents in cases in which secondary evidence is admissible under the earlier
provisions of that Act. In the absence of the production of, the original
judgment if a witness is put into a witness box and is asked to say whether the
copy produced before the appellate court is a correct copy of the original
judgment filed of record in the trial court he will necessarily have to say
that he read the original judgment and from his memory he can say that the copy
correctly reproduces the text of the original judgment. This means that he will
give secondary evidence as to the contents of the original judgment which under
the law is required to be reduced to the form of a document. A further question
will, therefore, arise if such evidence, which at best is secondary evidence,
is admissible under the Indian Evidence Act. As already stated the judgment,
which under s. 367 of the Code of Criminal Procedure has to be in writing and
under s. 372 has to be filed with the record of the proceedings, becomes, under
s. 74 of the Indian Evidence Act, a public document.' As the original judgment
is a public document within the meaning of s. 74, only a certified copy of such
document and no other kind of secondary evidence is admissible under S. 65.
This circumstance also indicates that the word " copy " in s. 419
means, in the context, a certified copy and so it was held in Ram Lat v.
Ghanasham Das (1). The decision in Firm Chhota LalAmba Parshad v. Firm Basdeo
Mal-Hira Lal (2), proceeded on its peculiar facts, namely , that no certified
copy could be obtained as the original judgment could not be traced in the
record and the decision can be supported on the ground that the court had, in
the circumstances, dispensed with the production of a certified copy.
(i) A.I.R. (1923)Lab. 150. (2) A.I.R. (1926)
1285 Learned counsel for the appellant next
urges that the fact that the appellate court to which the petition of appeal is
presented is given power to dispense with the filing of a copy of the judgment
appealed against indicates that the Legislature did not consider the c. filing
of the copy to be essential and that if the filing of the copy is not essential
and copy can be wholly dispensed with, a plain copy should be sufficient for
the purpose of s. 419. This power of dispensation had to be given to the court
for very good reasons. In certain cases an order staying the operation of the
order sought to be appealed from may be immediately necessary and the matter
may be so urgent that it cannot brook the delay which will inevitably occur if
a certified copy of the judgment or order has to be obtained.
In some cases it may be that a certified copy
of the same judgment is already before the same court in an analogous or
connected appeal and the filing of another certified copy of that very judgment
may be an unnecessary formality. The circumstance that the court may, in urgent
cases, dispense with the filing of a copy does not imply that in a case where
the court does not think fit to do so it should be content with a plain copy of
the document which ex facie contains no guarantee as to its correctness.
Reference has been made to a number of
sections of the Code of Criminal Procedure where the word " copy "
has been used and to ss. 425, 428, 442 and 511 which, it is said, talk about
certified copy and on this circumstance is founded the argument that where the
Legislature insists on the production of a certified copy it says so expressly
and that as the word "copy" used in s. 419 is not qualified by the
word " certified " the inference is irresistible that the filing of a
plain copy was intended to be sufficient for the purpose of that section. Turning
to the four last mentioned sections, it will be noticed that the first three
sections 425, 428 and 442 do not really refer to any certified copy of any
document at all. Section 425 requires that whenever a case is decided on appeal
by the High Court under Chapter XXXI it shall certify its judgment or order to
the court by which the finding, sentence or 1286 order appealed against was
recorded or passed. It really means that the High Court is to formally
communicate its decision on the appeal to the court against whose decision the
appeal had been taken. Likewise s. 428 requires the court taking additional
evidence to certify such evidence to the appellate court. Section 442 requires
the High Court to certify its decision on revision to the court by which the
finding, sentence or order revised was recorded or passed.
Lastly s. 511 lays down the mode of proof of
a previous conviction or acquittal, namely, by the production of an extract
certified under the hand of the officer having the custody of the records of
the court to be a copy of the sentence or order. Therefore, the four sections
relied on do not in reality refer to certified copy of a judgment or order
supplied to a party on his application for such copy and consequently no
argument such as has been sought to be raised is maintainable. The question
whether a copy in a particular section means a plain copy or a certified copy
must depend on the subject or context in which the word " copy " is
used in such section. In many sections relied on, the " copy " is
intended to serve only as a notice to the person concerned or the public and is
not intended to be acted upon by a court for the purpose of making a judicial
order thereon. We think that N. U. Beg J. rightly pointed out that the object
and purpose of such sections are distinguishable from those of s. 419 where the
copy is intended to be acted upon by the appellate court for the purpose of
founding its judicial decision on it. We do not consider it desirable on the
present occasion to express any opinion as to whether any of those sections
relied on requires a plain copy or a certified copy. It will suffice for us to
hold that so far as s. 419 is concerned, having regard to the context and the
purpose of that section, the copy to be filed along with the petition of appeal
must be a certified copy.
We have also been referred to several
sections of the Code of Civil Procedure where the word " copy " is
used. We do not consider it right to enter upon a 1287 discussion as to the
true interpretation of the word " copy" occurring in any of those
sections for we think that each section in each Act must, for its true meaning
and effect, depend on its own language, context and setting.
In the result, for reasons stated above, we
agree that the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed.