Mohinder Singh & Ors Vs. State of
Punjab & ANR [1984] INSC 239 (20 December 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION: 1985 AIR 383 1985 SCR (2) 488 1985
SCC (1) 342
ACT:
Criminal Procedure Code 1973 Sections 377, 378
and 386.
HEADNOTE:
Appeal against acquittal by state Government
to High Court-Powers of appellate court-What are-High court final court of
facts-Correctness and acceptability of evidence-Duty-To be satisfied-Open to
re-appraise evidence and decide appeal or order re-trial-Not proper to remand
case to trial court for writing a fresh judgment-Proper direction by Government
to file appeal- Existence of-High Court whether competent to go through the
sanction file.
The four appellants in the appeal were tried
by the Sessions Judge for offenses under Sections 302/34 I.P.C. and also under
Section 27 of the Arms Act 1959. The court convicted the first appellant under
Section 304 Part-I I.P.C. and sentenced him to 7 years rigorous imprisonment
and acquitted the others.
The first appellant filed an appeal before
the High Court and the State Government filed appeals against the acquittal of
the other appellants and also of the first appellant's under Section 302 I. P.
C. The High Court came to a general conclusion that the judgment of the
Sessions Judge was not in accordance with law and had not dealt with some of
the Points raised in the appeals, and remanded the case back to the trial court
for writing a fresh and proper judgment. As far as the acquitted accused were
concerned although the appeals were filed by the Public Prosecutor as directed
by the State Government, the High Court hold that there was no proper direction
by the Government for filing the appeals except in the case of the first
appellant .
Allowing the Appeals to this Court,
HELD: Assuming that the High Court was right
in thinking the judgment suffered from some infirmity and there were certain
facts which were not taken into consideration they would not be grounds for
remanding the case to the Sessions Court to write a proper judgment. The High
Court itself was a final court of facts and it was its duty to satisfy itself
regarding the correctness and acceptability of the evidence. It was entirely
open to the High Court to re-appraise the evidence once again to consider the
facts overlooked by the Sessions Judge and to have decided the appeal 489
itself instead of remanding the case to the Sessions Court.
The proper order in such a case should be
either to decide the case itself or to send it for re-trial. The question of
re-trial does not arise in the instant case. The order of the High Court is set
aside and the High Court is directed to re-hear two appeals on merits according
to law. [491D-F]
2. Whenever the Government seeks opinion it
consults various agencies namely the Advocate-General, Public Prosecutor, Legal
Remembrancer and others and thereafter the order is passed by the Government
through the Secretary incharge. [490E] In the instance cases it is not in
dispute that the Public Prosecutor was directed by the Under Secretary to the
Government in charge to file appeals against all the appellants. A clear
direction had been given to the Public Prosecutor to file appeals against all
the four accused and as regards the first appellant against his acquittal under
Section 302 IPC. The High Court at the instance of the acquitted accused tried
to re-open the matter in order to find out the manner and various stages
through which the sanction to file an appeal was chanalised. This was not at
all proper for the High Court to do. [490E; G; F]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos.
335-36 and 523 of 1982.
From the Judgment and order dated the 31st of
March, 1982 of the High Court of Punjab and Haryana in Criminal Revision No.
977 of 1980.
R.L. Kohli, M K. Dua, S.K. Mehta, P.N. Puri
and R.C.
Kohli for the appellants.
S.K. Bagga for the respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J. In these appeals by special leave four persons, namely, Mohinder
Singh, Gurcharan Singh, Bharpur Singh and Jagvinder Singh were tried by the
Sessions Judge for offences under Sections 302/34 and 307/34 IPC and also under
Section 27 of the Arms Act. After recording the entire evidence the trial court
convicted Mohinder Singh under section 304 Part I IPC sentenced him to 7 years
rigorous imprisonment. The other three accused were acquitted by the Sessions
Judge. Mohinder Singh filed an appeal before the High Court of Punjab and
Haryana against his conviction and sentence. The State Government also filed an
appeal against Gurcharan Singh, Bharpur Singh and Jagvinder Singh so far 490 as
their acquittal was concerned and against Mohinder Singh so far as his
acquittal under Section 302 IPC was concerned. The High Court without making
any real attempt to analyse and appreciate the evidence led in support of the
prosecution came to a general conclusion that the judgment of the learned
Sessions Judge was not in accordance with law and that he had not dealt with
some points or omitted to consider some points, and remanded the case back to
the trial court for writing a fresh and proper judgment. So far as the
acquitted accused were concerned although the appeal was filed by the Public
Prosecutor as directed by the State Government yet the High court on its own or
perhaps at the instance of the acquitted accused on a petition filed by them
held that there was no proper direction by the Government for filing the appeal
except in case of Mohinder Singh.
There was undoubtedly a direction to the
Public Prosecutor to file appeal against acquitted accused as indicated above.
The High Court, however, at the instance of the acquitted accused tried to
re-open the matter in order to find out the manner and various stages through
which the sanctioned to file an appeal was chanalised. With due respects to the
learned judges we feel that this was not at all proper for the High Court to
do. Whenever, a Government seeks opinion it consults various agencies, namely,
the Advocate General, Public Prosecutor, Legal Remembrancer and others and
thereafter the order is passed by the Government through the Secretary
incharge. In the instant case it was not disputed that the Public Prosecutor
was directed by the Under Secretary to the Government in charge to file appeal
against all the appellants. The High Court, however, seems to have gone deeper
into the matter by making a roving inquiry into what had happened when the
matter was under consideration of the Government and how things shaped and held
after making this roving inquiry, that the authority given to the Public
Prosecutor was only in respect of Mohinder Singh and not others. Therefore, the
High Court was of the opinion that direction to file appeal against acquitted
accused Gurcharan Singh, Bharpur Singh and Jagvinder Singh was non-est and
hence appeal filed by the State was not properly presented so far as they are
concerned. It appears that a clear direction has been given to the Public
Prosecutor to file appeal against all the four accused, three of them against
acquittal and as regards Mohinder Singh against his acquittal under Section 302
IPC.
Having gone through the entire record we are
unable to agree with the High Court that there was any interpolation with respect
to acquitted accused. It may be that various agencies may A have expressed
different views but by and large the final decision taken by the Under
Secretary prevailed as a result of which the Public Prosecutor was authorised
to file an appeal before the High Court against all the acquitted accused. In
such a situation, therefore, the High Court erred in holding that the appeal
presented by the State was not properly presented as against the said three
accused, and it should have heard the appeal on merits alongwith the care of
Mohinder Singh. As we intend to send the case back to the High Court for fresh
decision in accordance with law after taking into consideration the fact that
the appeal by the State was properly constituted it is not necessary for us to
give further details. We might, however, mention that the High Court instead of
analysing and appreciating evidence, remanded the case back to the Sessions
Judge for writing a proper judgment. In the first place, assuming that the High
Court was right in thinking that the judgment suffered from tome infirmities
and there were certain facts which were not taken into consideration they would
not be grounds remanding the case to the Sessions Court to write a proper
judgment. The High Court itself was a final court of facts and it was its duty
to satisfy itself regarding the correctness and acceptability of the evidence.
Thus, it was entirely open to the High Court
to reappraise the evidence once again to consider the facts which may have been
overlooked by the Sessions Judge and it should have decided the appeal itself
instead of remanding the case to the Sessions Court. It being a moot point, we
refrain from expressing any opinion on the question whether the first appellate
court of fact can in a criminal case send the case back to the Sessions Court
for writing a fresh judgment. The proper order in such a case should be either
to decide the case itself or to send it for re-trial. The question of re- trial
does not arise in the view we have taken in this case.
We, therefore, allow one Appeal 523 of 1982
and the other appeals in part set aside the order of the High Court and direct
to re-hear the appeals on merits according to law. We think it proper and
expedient in the interest of justice that this appeal should be heard by a
different bench of the High Court.
N.V.K Appeals allowed.
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