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Report No. 41

31.51. Section 428.-

With reference to section 428, it was pointed out that the Sessions Judge, sitting in appeal from a judgment of the Assistant Sessions Judge, has no power to direct the latter to record additional evidence. He can either record it himself, or direct a Magistrate to do so. We do not think that the position requires any change. Such instances would be rare, and there is no anomaly if the function of recording evidence is entrusted to a Magistrate. Moreover Magistrates are available in many outlying places where an Assistant Sessions Judge is not posted. It will be more convenient and less expensive to the parties if they are required to bring their witnesses before the nearest Magistrate rather than before the Assistant Sessions Judge.

31.52. Section 42.-Meaning of the "case".-

Section 429 is intended to provide for a contingency where a Bench of two Judges of a High Court are equally divided in their opinion regarding an appeal heard by them. The "case" is required to be laid before a third Judge, and the judgment or order shall follow his opinion. There is a sharp difference of judicial opinion regarding the true scope and content of the word 'case'. Does it include the entire appeal or is it restricted only to those charges in respect of which difference of opinion has arisen? Is it restricted only to those convicted or acquitted persons regarding whom the Judges have differed?

Will it also apply to those instances where, though the two Judges may agree about the final order to be passed, yet they may differ in respect of the findings ? Thus, one Judge may desire to acquit the accused on the ground that he exercised the right of private defence, whereas his colleague may be inclined to acquit on the ground that the prosecution has failed to establish its case beyond reasonable doubt. The Allahabad and Calcutta decisions, where these questions have been discussed, are cited below.1

1. Subedar v. State, AIR 1956 All 529 (538, 539); Subedar Singh v. Emp., AIR 1943 All 272; Nemai v. State, AIR 1966 Cal 194.

31.53. Explanation of term not desirable.-

We are unable to accept a suggestion1 that an Explanation should be inserted to clarify that the expression "case" means only the points in respect of which the Judges are divided. In our view, it is better to leave this question to the discretion of the Beach hearing the case, rather than enact a rigid statutory provision on a subject which primarily pertains to, and can be more satisfactorily dealt with by, the practice of the High Courts.

1. F. 3(2.-5.-L.C., Pt II, S. No. 33(a.-Suggestion of a High Court Judge

31.54. Is third Judge bound to accept concurrent view of referring Judge on other points.-

In some cases there has been a discussion as to whether the third judge ought to consider himself bound by the views expressed by the two referring Judges, on points on which there was no difference between the two Judges. Ashutosh Mookerjee J. had observed in one case1, that the term "case" in section 429 is the case of the prisoner as to whom the Judges are equally divided in opinion, and not merely the point or points on which they are so divided.

But in a later Calcutta case,2 Woodroffe J. had expressed the view (obiter) that the third Judge could not differ with the two Judges on a point agreed upon by them, unless there were strong reasons for doing so. Our attention was also drawn, in this connection, to the corresponding provisions in the Letters Patent,3 and in the Code of Civil Procedure,4 under which the view of the majority of all the Judges, including those who first heard the case, is to prevail.

The subject is one in respect of which a general rule applicable to all cases may not be advisable. The position in criminal cases is different from that in civil cases, where clearcut issues can be framed, and a demarcation of the points of difference can be done more easily. This is not practicable in most of the criminal cases where the findings are closely inte.-mixed and not easily severable. The position as now understood is that the third Judge brings to bear his independent opirtion.5 As was observed by the Supreme Court,6 it is for the third Judge to decide on what points he shall hear arguments if any, and this postulates that the third Judge is completely free in resolving the difference as he thinks fit.

In our view, no change in the Code is needed on this point. It should be left (as at present) to the discretion of the third Judge to decide how far he will or will not disturb the view expressed unanimously by the two Judges on particular points.

1. Sarat Chandra v. Emp., 1911 ILR 38 Cal 202.

2. Grande Venkata Ratnam v. Corporation of Calcutta, AIR 1919 Cal 862.

3. See clause 36, Letters Patent of Bombay, Calcutta and Madras High Courts.

4. Section 98, Code of Civil Procedure, 1908.

5. Cf. Repana, AIR 1961 AP 70.

6. Dharam Singh v. State, 1962 (Suppl) 3 SCR 769 (772, 782, 783); see also Babu v. State, AIR 1965 SC 1467 (1470).

31.55. Possible anomaly in certain cases.-

But there is one aspect of the matter which requires consideration. If the opinion of the third Judge is to prevail, an anomalous position may occasionally be created. For example, in an appeal against conviction, Judge A may be for acquitting the accused; Judge B may be for convicting the accused for a lesser offence; Judge C (the third Judge to whom the matter is referred under section 429), may be for maintaining the conviction. In such cases, the third Judge's view would be really a minority view, and yet would prevail.

31.56. Amendment of section 429 considered in the past.-

It may be noted that efforts have been made in the past to amend section 429. A Bill was introduced in 1914 to substitute, for section 429, the following sectio.-

"When the Judges composing the Court of Appeal are equally divided in opinion, the case shall be reheard before them and another Judge of the Court, and the judgment or order shall follow the opinion of the majority of the Judges so r.-hearing the case."1

The reasons for the amendment were thus stated:

"At present when the Judges composing the Court of Appeal in the High Court are equally divided in opinion the case is laid before a third Judge. In order to prevent the possibility of the third Judge interfering with the unanimous decision of the previous two on any point of the case, it is provided that the whole case should be r.-heard before a third Judge and the judgment given in accordance with the opinion of the majority." This matter was considered by the Lowndes Committee which suggested2 that, instead of the amendment mentioned above, the following proviso be added to section 429.-

"Provided that, if either of the Judges composing the Court of Appeal so require, the appeal shall be r.-heard before them and another Judge, or if the Chief Justice or the Judicial Commissioner so directs, before three other Judges and the judgment or order shall follow the opinion of the majority of the Judges so r.-hearing the case."3

The Committee stated that they would prefer to retain section 429 in its existing form, but would add a proviso on the lines of the amendment proposed by them to section 378 and for the same reasons.4 This amendment, however, was not accepted by the Select Committee which considered the Bill in 1922. "In view of the fact that the difficulty which the amendment is intended to meet is probably of rare occurrence", they preferred to leave the law as it was.5

1. Gazette of India, (1914), Pt. V, p. 111.

2. Gazette of India, (1914), Pt. V, p. 111.

3. Gazette of India, (1917), Pt. V, p: 107.

4. See para. 27.9 above.

5. Gazette of India, (1922), Pt. V, pp. 263 and 264; Report of the Select Committee, under clauses 99 and 113.

31.57. Amendment recommended.-

Subsequent experience1 has, however, shown that the problem is not so rare as was thought in 1922. While in most cases, the procedure laid down in section 429 is satisfactory, it has led to difficulties in special cases. We think it is desirable to provide that if either of the Judges first hearing the appeal so requires, or if after reference the third Judge so requires, the case should be r.-heard and decided by a Bench of three or more Judges. It will be for the Chief Justice to decide who will constitute the fuller Bench. We recommend that section 429 be amended on exactly the same lines as section 378,2 to read as follows:

429. Procedure where judges of court of appeal are equally divided.- When any such appeal is heard before a Bench of two Judges, and they are divided in opinion, the appeal with their opinions shall be laid before another Judge of the same Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion:

Provided that if either of the Judges constituting the Bench, or where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be r.-heard and decided by a Bench of three or more Judges.

1. See the cas.-law discussed in Subedar v. State, AIR 1956 All 529.

2. See paras. 27.6, 27.7.

31.58. Section 43.-Meaning of "Final".-

Section 430 reads as follows.-

"Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter VOUI."

The exact scope and significance of the provision that judgments and orders shall be "final" has been the subject of interesting discussion in courts, and much ingenuity has gone into its interpretation. Primarily, the object of the provision would appear to be to make it clear that there is no further appeal from an appellate decision, r.-emphasising the principle of section 404 But section 430 has apparently been regarded as of some relevance in emphasising also that a review or reconsideration of an appellate decision is not permissible, though the language of section 430 is different from that of section 369 which is the main provision prohibiting a review. Section 430 has also been construed as emphasising that the summary disposal of an appeal bars the matter being re┬Čopened, at least where no question of jurisdiction is involved1.

1. Se discussion as to section 421.

31.59. Cross appeals.-

Though section 417 has been expressly mentioned in section 430, controversy has arisen as to whether the final disposal of an appeal against conviction bars the hearing of an appeal against acquittal arising out of the same case. The decisions of the Punjab High Court and the Gujarat High Court noted below may be seen..-2 It is desirable to clarify the law by inserting an explanation. In view of the new provision we have recommended giving the Governinent a right to appeal against the inadequacy of sentence.3

This explanation has also to provide that the disposal of the appeal of the accused against his conviction shall not bar the hearing of the appeal of the Government regarding sentence. Further, it is necessary to make it clear that section 30 does not affect the new provision4 proposed by us whereunder, notwithstanding the summary dismissal of a jail appeal, the power of the appellate court to hear a represented appeal is saved.

1. State v. Mansha Singh, AIR 1958 Punj 233 (FB).

2. State v. Diwanji, AIR 1963 Guj 21 (27), paras. 13, 15 and 16 (DB).

3. Section 417A (Proposed).

4. Section 421(4).

31.60. Amendment recommended.-

Section 430 may be r.-drafted as follows.-

"430. Finality of judgments and orders on appeal.- Judgments and orders passed by an Appellate Court upon an appeal shall be final, except in the cases provided for in section 417, su.-section (4) of section 421 and Chapter XXXII.

Provided that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merit.-

(a) an appeal against acquittal under section 417, arising out of the same case,


(b) an appeal for the enhancement of sentence under section 417A, arising out of the same case, except where the question of enhancement has already been considered by the Court in the appeal against conviction.1"

1. See section 423(1)(b).

Code of Criminal Procedure, 1898 Back

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