Hanumant Dass Vs. Vinay Kumar &
Ors [1982] INSC 44 (5 April 1982)
MISRA, R.B. (J) MISRA, R.B. (J) REDDY, O.
CHINNAPPA (J)
CITATION: 1982 AIR 1052 1982 SCR (3) 595 1982
SCC (2) 177 1982 SCALE (1)310
ACT:
Party to an appeal against
conviction/acquittal- Necessary party-occurrence of offence taking place in the
territorial limits of one State, but the trial takes place in another State,
pursuant to an order of transfer by the Supreme Court-In the appeal by the
accused before the High Court, which is the necessary party respondent-Public
Prosecutor of the State where the offence took place or of the State where the
trial took place-Code of Criminal Procedure, 1973, sections 2(4), 24, 224, 378,
385 and 432(7), scope of.
Records, summoning of-Whether non-summoning
of records vitiates the order in appeal, Code of Criminal Procedure, 1973
section 385(2), explained-Setting aside of the judgment is not possible unless
the ingredients of section 465 Criminal Procedure Code are satisfied.
HEADNOTE:
Vinay Kumar, the husband of the deceased Asha
and his mother Chhano Devi were charged, convicted for the offence of burning
alive the deceased and sentenced to life imprisonment on a complaint by
Hanumant Dass the father of the deceased and the appellant in Criminal Appeal
45 of 1982 by the Sessions Judge Gurdaspur, Punjab. The offence is alleged to
have been committed within the territorial limits of the State of Himachal
Pradesh, but on an application of the complainant the case was transferred by
an order of the Supreme Court inasmuch as the accused were the brother-in- law
and mother-in-law of a Judge of the High Court of Himachal Pradesh. In appeal
by the accused the High Court of Punjab issued, on 22-6-1981, notice for
6-7-1981 to the Advocate General of Punjab only and on that date heard the
appeal and acquitted both the accused. Hence the appeal by the complainant and
the special leave by the State of Himachal Pradesh.
Dismissing the appeal and the Special Leave
Petition, the Court,
HELD: 1. The charge levelled against the High
Court that it was in a hot haste to decide the appeal at the earliest possible
is incorrect in view of the order dated 22-6-1981 passed by the High Court of
Punjab. [600 B] 2:1. Section 385 of the Code of Criminal Procedure is a
mandatory provision and the requirement of the section must be satisfied. In
the appeal before tho High Court State of Punjab was made a party and notice of
the appeal was also given to the Advocate General of Punjab. From sections
2(4), 24, 225, 378 and 432 it is evident that there shall be a Public
Prosecutor for conducting any prosecution appeal or other proceeding on behalf
of the Central 596 Government or State Government in the High Court. If notice
has been given to the Public Prosecutor, namely, the Advocate-General of Punjab
the requirement of law has been fulfilled. [601 B-C, 603 C-D] 2:2. Section 432
of the Criminal Procedure Code defines "appropriate Government" as
meaning (a) in cases where the sentence is for an offence against, or the order
referred to in sub-section (6) is passed under any law relating to a matter to
which the executive power of the Union extends, the Central Government; (b) in
other cases, the Government of the State within which the offender is sentenced
or the said order is passed. According to this section the appropriate
Government is the Government of the State of conviction and not the Government
of the State where the offence was committed. [603 C-D] State of Madhya Pradesh
v. Ratan Sing & Ors., [1976] Supp. S.C.R. 552, applied.
3. To contend that the High Court disposed of
the appeal even without summoning the record is incorrect. No specific
allegation has been made in the Special Leave Petition that the record was not
summoned. The tenor of the judgment of the High Court indicates that the record
must have been there before the High Court. There is copious reference to the
materials on the record which could be possible only when the record was there
before the court.
Besides, the counsel for the appellant made a
statement before the court that on the finding of fact recorded by the High
Court he was entitled to an acquittal and in this view of the matter even if
the record had not been summoned that would not be fatal. Further proviso to
sub-section (2) of section 385 itself provides "...the court may dispose
of the appeal without sending for the record," in a certain situation. The
rigour of sub-section (2) of section 385, which provides that "the
Appellate Court shall then send for the record of the case...." has been
taken away by the proviso in a certain situation. If the appellant himself says
that the appeal can be allowed on the findings recorded by the Sessions Judge,
the non-summoning of the record, if it was at all so, would not be fatal. The
complainant was present with his counsel, the State Advocate-General was also
present. If there had been any grievance about the record, they would have
raised an objection. Their non- objection on this point is also an indicator
that the record was there or in any case, the summoning of the record was not
thought to be necessary by the parties. [604 E-H, 605 A-B]
4. On merits also there is no case for the
appellants since each and every aspect of the matter has been thoroughly
discussed by the High Court which has referred to the error committed by the
Sessions Judge in the approach of the case and also in making unwarranted
assumptions. There is no eye witness. The fate of the case hinges upon the
circumstantial evidence. The High Court has dealt with the two dying
declarations, one recorded by the Doctor and the other by the Assistant
Sub-Inspector. The High Court also took into consideration the oral dying
declaration on which the prosecution strongly relied. But even that declaration
does not implicate the accused. [605 G-H, 606 A-B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 45 of 1982.
597 From the Judgment and Order dated the 9th
July, 1981 of the Punjab and Haryana High Court at Chandigarh in Criminal
Appeal No. 333-DB of 1981, AND S.L.P. (Crl.) No. 2948 of 1982.
R.L. Kohli and R. C. Kohli for the
Appellants.
T.U. Mehta and A.G. Ratnaparkhi for
Respondent No. 1.
N.C. Talukdar and R.N. Poddar for Respondent
No. 3.
N.C. Talukdar and R.N. Poddar for the
Petitioner in S.L.P. (Crl.) No. 2498/81.
D. D. Sharma for the State.
The Judgment of the Court was delivered by
MISRA, J. The appeal as well as the special leave petition are directed against
the judgment of the High Court of Punjab and Haryana at Chandigarh dated 9th
July, 1981.
Criminal appeal has been filed by the
complainant while the special leave petition has been filed by the State of
Himachal Pradesh. Vinay Kumar and his mother Chhano Devi were convicted for the
murder of Asha, the wife of Vinay Kumar by burning her alive and sentenced to
life imprisonment by the learned Sessions Judge, Gurdaspur. On appeal by the
accused, the High Court acquitted them by the impugned judgment.
The prosecution case set up at the trial was
that the deceased Asha was married with Vinay Kumar in July, 1972.
The marriage was an arranged marriage. It did
not prove to be a success, the apparent cause for the failure of marriage was
that Asha was only a matriculate and not cultured enough to move about in the
society with the husband. To make up this deficiency the deceased again resumed
her studies and started attending college at Nagrota Bhagwan. While prosecuting
her studies she was rebuked and abused and sometimes even thrashed, whenever
she visited the house of her-in-laws. She however, kept on suffering in the
vain hope that in due course of time things might improve. There was, however,
no improvement and she was fed-up with the maltreatment and 598 cruelty meted
out to her in the in-laws house. She left the matrimonial home and started
living with her parents sometime in the year 1975 or early 1976.
In 1977 Vinay Kumar filed a petition in the
court of the District Judge, Kangra at Dharamshala under section 13 of the
Hindu Marriage Act for the dissolution of his marriage with the deceased on
various grounds including one of desertion. The District Judge in the first
instance tried for reconciliation between the spouse and as an interim
arrangement Asha returned to her-in-laws house in June 1978 on trial basis,
while divorce petition was kept pending and adjourned to July 29, 1978. As the
parties did not appear in the Court on the date fixed, it was presumed that
they were living happily and the proceedings were, therefore, consigned to the
record.
On 5th of August, 1978 at about 11 a.m.
Kanwal Nain P.W. 4, Bil Bhandur P.W. 14, employee of the Post office, which was
just in front of the house of the accused at a distance of 10/12 feet, and a
number of other persons saw smoke coming out of the window of the house of the
accused.
When Bil Bhandur and others went to the
house, they found the outer door locked. There was no other means of ingress to
the house. After a short while one Raj brought the key from Chhano Devi accused
with which the lock was opened and entry gained into the house. Asha was found
burning and after extinguishing the fire, she was removed to the local
hospital.
Dr. O. P. Dutta attended her and sent an
intimation of the incident to the Incharge local Police Post. He recorded the
statement of Asha on the out-patient register 13x. PL.
Meanwhile Kesar Singh, Assistant
Sub-Inspector, arrived there an d after getting a certificate from Dr. Dutta,
he also recorded her statement Ex. PU. From Civil Hospital, Kangra Asha was
removed in a truck to a Civil Hospital in Dharamshala (H.P.) where she breathed
her last.
In her statements recorded by Dr. Dutta and
Kesar Singh, the deceased disclosed that her clothes caught fire, while she was
preparing tea. The police suspected no foul play and did not register any case.
The father of the deceased Hanumant Dass, however, made a report on 7th August,
1978 and a case was registered on that basis. The accused were sent up for
trial. When the case was pending in the Court of Sessions Judge, Dharamshala in
Himachal Pradesh, the complainant moved an application to the 599 Supreme Court
for transfer of the case from Himachal Pradesh to some other province. The case
was transferred to a Court of competent jurisdiction at Gurdaspur in Punjab.
The Sessions Judge, Gurdaspur convicted both the accused under section 302 read
with section 34 of the Indian Penal Code and sentenced them to life
imprisonment. This conviction was based only on the circumstantial evidence.
Accused went up in appeal to the High Court. The High Court in its turn set
aside the order of conviction and acquitted the accused of the charge.
The complainant has filed the present appeal.
Shri Kohli appearing for the complainant has strenuously contended that the
appeal before the High Court has been allowed in the absence of the State of
Himachal Pradesh and without any notice to that State and as such the impugned
judgment of the High Court is a nullity and should be set aside on that ground
alone. The accused had impleaded only the State of Punjab as a party and the
High Court has issued notice to the Advocate-General of Punjab. As a second
limb to this argument it has been contended by Shri Kohli that the appeal was
filed in the High Court on 15th June, 1981 and while considering the
application for bail on 22nd of June, 1981, posted the appeal for hearing on
6th of July, 1981 after service of notice on the Advocate-General of Punjab and
the appeal was decided on 9th July, 1981 without even summoning the record.
Thus the High Court was in a hot haste to dispose of the appeal even without
reasonable opportunity being afforded to the counsel for the State and without
impleading the appropriate State as a party to the appeal and without notice to
the counsel for the State of Himachal Pradesh.
We may first deal with the criticism of the
learned counsel about the undue haste in the disposal of the appeal by the High
Court. It appears that Shri M.R. Mahajan, counsel for the appellants while
moving the application for bail made a statement before the High Court and it
is on his statement that the case was posted for hearing at the earliest
possible. This will be apparent from the order dated 22.6.1981 passed by the
High Court while disposing of the application for bail. The order insofar as it
is material for consideration of the point reads:
".. Mr. Mahajan, Advocate states that on
the findings of fact recorded by the learned trial Judge, the conviction of the
appellants cannot be sustained.
Notice for 6.7.81.
600 to the Advocate-General, Punjab. Copy of
the grounds of appeal and the judgment rendered by the learned trial Judge be
delivered in the office of the A. C. Punjab within two days, The case is likely
to be disposed of on that date ... ... " Therefore, the charge levelled
against the High Court that it was in a hot haste to decide the appeal at the
earliest possible appears to be uncalled for.
This leads us to the main contention raised
by Shri Kohli that the transfer of the case from Dharamshala lying within the
territorial jurisdiction of the High Court of Himachal Pradesh to Gurdaspur
Lying within the jurisdiction of the Punjab and Haryana High Court, does not
change the parties and the parties remain the same even after the transfer of
the case from Dharamshala to Gurdaspur. In this view of the legal position, the
State of Himachal Pradesh where the offence was committed was a necessary party
and should have been impleaded in appeal. In the absence of the State of
Himachal Pradesh as a party and in the absence of notice to the counsel for the
State of Himachal Pradesh, the High Court was not justified in disposing of the
appeal and its judgment is only a nullity.
This contention is based on section 385 of
the Code of Criminal Procedure. Insofar as it is material for the purpose of
the case it reads :
"385(1): If the Appellate Court does not
dismiss the appeal summarily, it shall cause notice of the time and place at
which such appeal will be heard to be given- (i) to the appellant or his
pleader;
(ii) to such officer as the State Government
may appoint in this behalf;
(iii) if the appeal is from a judgment of
conviction in case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or
section 378, to the accused, and shall also furnish such officer, complainant
and accused with a copy of the grounds of appeal.
601 (2) The Appellate Court shall then send
for the record of the case, if such record is not already available in that
Court, and hear the parties:
Provided that if the appeal is only as to the
extent or the legality of the sentence, the Court may dispose of the appeal
without sending for the record.
(3) .............................
There is no denying the fact that section 385
of the Code is a mandatory provision and the requirement of the section must be
satisfied. In the appeal before the High Court, State of Punjab was made a
party and notice . Of the appeal was also given to the Advocate-General of
Punjab. According to Shri Kohli this does not satisfy the requirement of law.
It would be appropriate at this stage to
refer to other relevant provisions of the Code:
Section 225 provides that-"In every
trial before a Court of Session, the prosecution shall be conducted by a Public
Prosecutor." Section 2(4) defines public prosecutor-"Public
Prosecutor means any person appointed under section 24, and includes any person
acting under the direction of a public prosecutor." Section 24 deals with
"Public Prosecutors in the High Court":
"24. Public Prosecutors:-(I) For every
High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors, for conducting in such
Court, any prosecution, appeal or other proceeding on behalf of the Central
Government or State Government, as the case may be.
....................................
Section 378 talks of an appeal in case of
acquittal. Insofar as it is material it reads thus:
"378(1) Save as otherwise provided in
sub-section (2) and subject to the provisions of sub-sections (3) and (5) 602
the State Government may, in any case, direct the Public Prosecutor to present
an appeal to the High Court from an original or appellate order of acquittal
passed by any Court other than a High Court, (or an order of acquittal passed
by the Court of Session in revision).
(2) If such an order of acquittal is passed
in any case in which the offence has been investigated by the Delhi Special
Police Establishment constituted under the Delhi Special Police Establishment
Act, 1946, or by any other agency empowered to make investigation into an
offence under any Central Act other than this Code, the Central Government may
also direct the Public Prosecutor to present an appeal, subject to the
provisions of sub-sec. (3) to the High Court from the order of acquittal.
...........................
Section 432 authorises the appropriate
Government to suspend or remit sentences.
"432(1): When any person has been
sentenced to punishment for an offence, the appropriate Government may, at any
time, without conditions or upon any conditions which the person sentenced
accepts, suspend the execution of his sentence or remit the whole or any part
of the punishment to which he has been sentenced.
(2) Whenever an application is made to the
appropriate Government for the suspension for remission of a sentence, the
appropriate Government may require the presiding Judge of the Court before or
by which the conviction was had or confirmed, to state his opinion as to
whether the application should be granted or refused, together with his reasons
for such opinion (3) . . .. ... (4)........ (s) (6) The provisions of the above
sub-sections shall also apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts the liberty of any
person or imposes any liability upon him or his property, 603 (7) In this
section and in section 433, the expression "appropriate Government"
means- (a) in cases where the sentence is for an offence against, or the order
referred to in sub- section (6) is passed under, any law relating to a matter
to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the
State within which the offender is sentenced or the said order is passed.
From the various provisions extracted above
it is evident that there shall be a Public Prosecutor for conducting any
prosecution appeal or other proceeding on behalf of the Central Government or
State . Government in the High Court.
If notice has been given to the Public
Prosecutor viz. the Advocate-General of Punjab the requirement of law to our
mind has been fulfilled.
Shri Kohli, however, contends that occurrence
in the instant case took place within the territorial limits of Himachal
Pradesh. That State, therefore, will continue to be a necessary party in the
appeal irrespective of the fact that the appeal was filed in the Punjab High
Court.
Section 432(7) extracted above defines
"appropriate Government". "Appropriate Government" means-(a)
in cases where the sentence is for an offence against, or the order referred to
in subsection (6) is passed under any law relating to a matter to which the
executive power of the Union extends, the Central Government; (b) in other
cases, the Government of the State within which the offender is sentenced or
the said order is passed.
According to this section the appropriate
Government is the Government of the State of conviction and not the Government
of the State where the offence was committed. A somewhat similar question came
up for consideration in the State of Madhya Pradesh v. Ratan Singh &
Ors.,(1) where the respondent was convicted and sentenced to imprisonment for
life by a court in the State of Madhya Pradesh. At his request he was transferred
o a Jail in the State H 604 of Punjab, to which State he belonged. He applied
to the Government of Punjab that under the Punjab Jail Manual he is entitled to
be released since he had completed more than 20 years of imprisonment. The
application was sent to the Government of Madhya Pradesh, which rejected it. In
a Writ petition filed by him the High Court of Punjab and Haryana held that the
State of Punjab was the appropriate authority to release him and directed the
State of Punjab to consider the matter. This Court in appeal observed "a
perusal of this provision clearly reveals that the test to determine the
appropriate Government is to locate the State where the accused was convicted
and sentenced and the Government of that State would be the appropriate
Government within the meaning of sec. 401 of the Code of Criminal Procedure.
Thus since the prisoner in The instant case, was tried, convicted and sentenced
in the State of Madhya Pradesh, the State of Madhya Pradesh would be the
appropriate Government. to exercise the discretion for remission of the
sentence under sec. 401(1) of the Code of Criminal Procedure.... ." That
was a case based on section 401 of the old Criminal Procedure Code, but the
Code of Criminal Procedure, 1973 has put the matter completely beyond any
controversy and reiterated the provisions of section 402(3) in sub-section (7)
of section 432, Lastly it was contended that the appeal was disposed of by the
High Court even without summoning the record. There is no warrant for this
assumption. No specific allegation has been made in the special leave petition
that the record was not summoned. We have perused the Judgment of the High
Court and the tenor of the judgment indicates that the record must have been
there before the court. There is copious reference to the materials on the
record which could be possible only when the record was there before the court.
Besides, . the counsel for the appellant made
a statement before the court that on the finding of fact recorded by the High
Court he was entitled to an acquittal and in this view of the matter even if
the record had not been summoned (for which there is no basis) that would not
be fatal, Proviso to sub section (2) of section 385 itself provides
"...the court may dispose of the appeal without sending for the
record." in a certain situation. The rigour of subsection (2) of sec. 385,
which provides that "the Appellate Court shall then send for the record of
the case..." has been taken away by the proviso in a certain situation. If
the appellant himself says that the appeal can be allowed on the findings
recorded by the Sessions Judge, the non-summoning of the record, if it was at
all so, 605 would not to our mind be fatal. The complainant was present with
his counsel, the State Advocate-General was also present. If there had been any
grievance about the record, they would have raised an objection. Their
non-objection on this point is also an indicator that the record was there or
in any case, the summoning of the record was not thought to be necessary by the
parties. B Assuming for the sake of argument, that there were certain
irregularities it the procedure the judgment of the High Court could not be set
aside unless it was shown by the appellant that there has been failure of
justice, as will be evident from section 465 of the Criminal Procedure Code
which reads:
"465. Finding or sentence when
reversible by reason of __ error, omission or irregularity- (l) Subject to the
provisions herein before contained . no finding, sentence or order passed by a
Court of competent jurisdiction shall be reversed or altered by a Court of
appeal, confirmation or revision on account of any error, omission or
irregularity in the complaint, summons, warrant, proclamation, order, judgment
or other proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in any sanction for
the prosecution, unless in the opinion of that Court, a failure of justice has
in fact been occasioned thereby.
(2) In determining whether any error,
omission or irregularity in any proceeding under this Code, or any error, or
irregularity in any sanction for the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact whether the objection could and
should have been raised at an earlier stage in the proceedings." We have
perused the judgment of the High Court which was placed before us in full. It
shows that each and every aspect of the matter has been thoroughly discussed
and the High Court has also referred to the error committed by the Sessions
Judge in the approach of the case and also in making unwarranted assumptions.
on merits we fully agree with the appraisal
of the evidence made by the High Court. It is not necessary to repeat the same
606 over again. There is no eye witness. The fate of the case hinges upon the
circumstantial evidence. The High Court has dealt with the two dying
declarations, one recorded by the Doctor and the other by the Assistant
Sub-Inspector. The High Court also took into consideration the oral dying
declaration on which the prosecution strongly relied. But even that declaration
does not implicate the accused. The reason given by the High Court for
acquittal in our opinion is cogent and plausible.
For the foregoing discussion, the criminal
appeal and the special leave petition must fail and they are accordingly
dismissed.
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