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Report No. 41

31.31. Section 42.-opening part.-

Section 423 lays down in detail the powers of an Appellate Court in disposing of an appeal. In the opening paragraph of su.-section (1), however, the procedure for hearing the appeal is also indicated with unnecessary meticulousness. The first step is that the Appellate Court shall then send for the record of the case, if such record is not already in Court. Where the only question for consideration in appeal is in regard to the extent or legality of the sentence the Court can, in most cases, dispose of the appeal without perusing the record of the trial. Sending for the record in such cases involves delay which should be avoided.

31.32. Urging other ground in appeals for reducing sentence.-

Another point of procedure that requires consideration is that even when an appeal from a conviction is solely on the ground of the severity of the sentence, and the Court had admitted it for hearing on that ground, the appellant can raise any other ground he wishes and the whole case is open for argument.1 In some cases, this can lead to a waste of time,2 and we think that, without the Appellate Court's permission, a matter not mentioned in the grounds of appeal should not be permitted to be raised.

1. R.D. Yadav v. State of Bombay, (1960) 3 SCR 130: AIR 1960 SC 748 (750); K.E. v. Dahu, AIR 1935 PC 89 (91); Nafar Sheikh v. Emp., 1913 ILR 41 Cal 406 (410): AIR 1914 Cal 276.

2. See R.P. Khanna, AIR 1957 Cal 163; Bai Dhankor v. Emp., AIR 1937 Born 148.

31.33. Amplification and revision of section 442.-

We recommend that this procedural part of section 423 should be combined with section 422 and revised as follows in the light of the foregoing discussion.-

"422. Procedures for hearing appeals not dismissed summarily.- (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 a case instituted upon complaint, to the complainant, and

(iv) if the appeal is under section 417 or section 417A, to the accused; and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2) The Court shall then send for the record of the case, if such record is not already available in Court, and hear the parties:

Provided that if the appeal is only as to the extent or legality of the sentence, the Court may dispose of the appeal without sending for the record

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.".

31.34. Appeal against acquitta.-conviction for a different offence.-

Clauses (a) and (b) of section 423(1) deal with appeals from acquittal and appeals from conviction respectively, and it will be convenient to deal with there two clauses separately. Under clause (a), in an appeal from acquittal, the Appellate Court can inter alia, find the accused guilty. This power is not limited to finding the accused guilty of the particular offence of when the accused was charged or acquitted, subject to an important imitation, (to be presently noticed), this power is wide enough to enable the Appellate Court to find the accused guilty of a different offence.1

The suggestion of a bar Council2 to the effect that the Appellate Court's power should be expressly restricted to convicting the accused of the offence of which he was charged, is not acceptable to us, because, as pointed out by the Supreme Court in the case noted below,' sections 236 and 237 control the exercise of Appellate Court's powers also. That court cannot convict the accused of an entirely different offence, whether the appeal is against acquittal or against conviction.

1. Ramaswami v. State, 1958 SCR 739: AIR 1958 SC 56.

2. F. 3(2)/5.-L.C., Pt. III, p. 258 (Madras Bar Council).

31.35. Power to order r.-hearing of appeal.-

The powers of the appellate court, in an appeal from an order of acquittal, are to "reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty, and pass sentence on him according to law." In this connection, the question arises whether the appellate court can, in cases where the appeal is from an appellate order of acquittal, direct a reĀ¬hearing of the appeal? The answer depends on the meaning of the expressions "inquiry" and "r.-tried".

Where the defect is not in the proceedings of the trial court, but in those of the first appellate court, the question becomes material. There is a suggestion of the Madras Bar Council1 for the insertion of a provision enabling the High Court to direct a r.-hearing of the appeal, so as to save the time of the trial court and avoid unnecessary harassment of the accused, when the mistake lies with the appellate court, owing to its passing a wrong order.

Some decisions hold that the power to order r.-hearing of the appeal exists even under the present provisions,2 while there is one decision to the contrary.3 In a Madras case,4 the question was referred to, but not decided, and the order was passed under section 430 read with claues (a), (c) and (d) of section 423(1). That the High Court can do so in exercise' of its powers of revision is not doubted.5 The High Court can in revision set aside the appellate order of acquittal and direct a r.-hearing of the appeal without ordering a "r.-trial" of the original case.6

Such directions to the lower appellate court to r.-hear an appeal are issued only in those rare cases where there is a pronounced tendency on the part of the Court to deny to the appellant a reasonable opportunity of being fully heard or to write slipshod judgments without fully discussing all the questions of law and fact that may arise out of the judgment under appeal. We do not consider that an amendment is necessary for this purpose. This may be left to the discretion of the High Court.

1. F. 3(2)/5.-L.C., Pt. III, S.No. 52, p. 258.

2. Ganesh Khanderia, 1889 ILR 13 Born 506 (515); Chandra Singh, (1912) 18 Cr LJ 737 (Lah).

3. Emp. v. U/kodoe, AIR 1936 Rang 369 (370).

4. Public Prosecutor v. Raver Unitiri, AIR 1914 Mad 50 (51).

5. Raghunath v. Pati Ram, AIR 1937 Nag 394 (396).

6. Bachcha Singh v. Bachacha, AIR 1925 Oudh 321.

31.36. Appeal against convictio.-Reversing finding and ordering r.-trial.-

In appeals against convictions, the powers of the Appellate Court are governed mainly by clause (b) of su.-section (1) of section 423. In this clause, the powers Mentioned in su.-clauses (1) and (2) are important.

[When under su.-clause (1) the Appellate Court reverses the finding and sentence, it has two courses open: it may acquit or discharge the accused, or it may order the accused to be r.-tried or committed for trial. In an important judgment of the Supreme Court1, it was held that the character of the appellate proceedings and that scope and extent are determined by the nature of the appeal preferred before the Appellate Court. If an appeal is preferred. against the acquittal, and no appeal is filed against the conviction, it is only the order of acquittal which is considered by the Appellate Court. On the other hand, if the order of conviction is challenged and the order of acquittal is not challenged, it is only the order of conviction which is considered by the Appellate Court.

Further, the Supreme Court held that except under section 429, it is not open to the High Court, in an appeal against conviction, to order r.-trial of the accused on charges of which the accused had been acquitted by the trial Court, though it could reverse the conviction and order a r.-trial for the offence of which the accused had been convicted.

1. State v. Thadi Narayan, AIR 1962 SC 240: (1962) 2 SCR 904.

31.37. Meaning of "altering the finding".-

As regards su.-clause (2) also, in the same judgment of the Supreme Court, the meaning of the expression "alter the finding" has been discussed at length, and the construction placed on it is that the power to alter the finding is confined to offences for which the accused could have been convicted under sections 236 to 238, since clause (b) begins with the words "in an appeal from a conviction", the expression "alter the finding", it is emphasized, means "alter the finding of conviction". It does not confer a power to reverse a finding of not guilty because appeals from acquittal are dealt with separately in clause (a). We have referred to the judgment of the Supreme Court in detail because it has set at rest the previous conflict of decisions.1

1. See e.g. Bawa Singh v. Emp., ILR (1942) Lah 129: AIR 1941 Lah 455 (FB) and Zanier Qasim v. Emp., AIR 1944 All 137 (155, 156) (FB).

31.38. Appeal from conviction for less serious offences implied acquittal of offence charged.-

Situations also arise in which the accused is convicted of an offence less grave than that for which he was prosecuted. In such cases, the view taken is that he is deemed to have been acquired of the graver offence. Thus, where a person is charged with an offence under section 302 but convicted under section 304 of the Indian Penal Code, there is an implied acquittal of the first offence.1 If, therefore, the accused appeals against the conviction and the State does not appeal against the acquittal, the Appellate Court cannot "alter the finding" into one of conviction2 under section 302, Indian Penal Code.

1. Kishan Singh v. Emp., 55 IA 390: ILR 50 All 722: AIR 1928 PC 254.

2. Tara Chand v. State, AIR 1962 SC 130 (131), para. 5.

31.39. Section 423(1A.-enhancement of sentence of Appellate Courts other than the High Court.-

As a general rule, the Appellate Court hearing an appeal against a conviction has no power to enhance the sentence. But an exception was made by the amendment of 1955. Under su.-section (1A), as inserted by that amendment, where the High Court is the Appellate Court, it can enhance the sentence 'after giving notice to the accused. The High Court can also enhance the sentence under its revisional jurisdiction.1

During our consideration of section 423(1A), the question of giving power to the Sessions Judge (when hearing appeals) to enhance the sentence was raised. It was stated that Magistrates often award very lenient sentences. When the Session Judge, while hearing an appeal from a conviction, especially for an antiĀ¬social offence, finds that the sentence is grossly inadequate, he is required to refer the question of enhancement to the High Court, causing undue delay and additional expense to the parties concerned.

It may be mentioned here, that in the 14th Report,2 while proposing widening of the revisional jurisdiction of the Sessions Judge, petitions against acquittal and petitions for enhancement of sentence were specifically excluded from the scope of the proposal. But, it appears to us that the arguments set out in that Report for widening the revisional jurisdiction of Sessions Judges apply as much to the enhancement of sentence as to the widening of revisional jurisdiction. Power to hear appeals against acquittal is an extraordinary power, and it is understandable that it may not be proper to give it to a lower court. But the power of enhancement of sentence does not stand on the same footing. Sessions Judge and Chief Judicial Magistrates may be safely entrusted with this power, and the High Court need not be troubled by frequent references.

We recommend that su.-section (1A) of section 423 may be omitted and clause (b) of su.-section (1) amended, conferring on all appellate courts a power to enhance the sentence after giving the accused an opportunity of showing cause against such enhancement.

1. Section 439(6).

2. 14th Report, Vol. 2.

31.40. Power to appeal for enhancement of sentence.-

We have proposed above1 the insertion of a new section under which the State Government may, where there is a conviction, appeal on the ground of inadequacy of the sentence. The powers of the Appellate Court in such appeals should be the same as in appeals from a conviction. Accordingly, clause (b) of section 423(1) should begin with the words "in an appeal from a conviction or for enhancement of sentence."

1. See para. 31.21.

Code of Criminal Procedure, 1898 Back

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