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Report No. 14

31. We have obtained from all the High Courts figures relating to the number of petitions by complainants for special leave to appeal against orders of acquittal in criminal cases and the number of cases in which leave has been granted. The percentages of successful petitions vary from fifteen to over sixty per cent.

However, we have not been able to obtain information as to the number of cases in which the appeals instituted on such special leave have been ultimately successful. In the absence of such information and on the basis of the figures now available to us, it is not possible for us to come to a conclusion as to whether the existing provision for the grant of such leave should be continued. It would be desirable to watch the working of this provision for some time and obtain information as to the number of successful appeals filed after obtaining such special leave. It would then be possible to come to a conclusion in regard to the value of this newly enacted provision.

32. Section 421 Cr. P.C.-

Under section 421 of the Criminal Procedure Code, the appellate court is competent to dismiss an appeal summarily "if it considers that there is no sufficient ground for interference". This provision is applicable both to appeals from convictions and to appeals from acquittals. The power of the appellate court in disposing of the appeal if it does not act under this section (421 of the Criminal Procedure Code) is laid down in section 423. It states "the Court may if it considers that there is no sufficient ground for interference, dismiss the appeal, or may

(a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry 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"

It will be noticed that so far as the powers of the appellate court are concerned, there is no difference between appeals from acquittals and appeals from convictions.

33. Summary dismissal of Government appeals against acquittals.-

It has been suggested by the State Government of Uttar Pradesh that the frequency with which appeals against acquittals filed by the public prosecutor under the directions of the State Government are being summarily dismissed under section 421 is a matter of grave concern to the State Government and that, therefore, such appeals should be excluded from the operation of section 421. It has been claimed that these appeals are filed after very careful scrutiny of the records by the law officers of the State and only when public interest or public policy requires that the correctness of the decision should be challenged before the appellate court.

The view has been expressed that the summary dismissal of these appeals filed after careful deliberation by the law officers of the State is detrimental to the prestige of the State and that there should be an amendment of the law which would prevent appeals so filed from being rejected summarily without hearing a full argument on behalf of the appellant State. In substance, the suggestion amounts to taking away the court's power of summary dismissal under section 421 in cases of appeals against acquittals filed by the State.

This appears to us to be a curious and startling suggestion. There appears to be no reason in principle which can call for the State being differently treated from any other appellant. It is only right that the Judge before whom the appeal comes for admission should have as much right to test the merits in a Government appeal as in any other appeal. It is perfectly open to counsel for the appellant State to satisfy the judge at the preliminary hearing that the appeal deserves admission and there would appear to be no warrant for suggesting that the court would not hear counsel fully at that stage if he wishes to be so heard.

If, before the filing of these appeals, the matter has been carefully thought over by the Legal Department of the State, it should be easier for Counsel for the State to put all his points of view to the admission judge and induce him to admit the appeal. It is a matter of doubt whether sufficient attention is given by the Legal Department of the State before taking a decision to file the appeal. At any rate, the courts which have summarily dismissed some of these appeals do not think so. Desai J. of the Allahabad High Court observed in a case "I do not consider that this was an appeal which should have been filed by Government. They should not have filed an appeal when there is no evidence at all against the accused. If Government do not like their appeals to be dismissed summarily it is obvious that they should not file appeals which merit this fate. The Court makes no distinction between appellant and appellant".1

1. State v. Ganga Sahai, AIR 1953 All 211 (213).

34. Power of summary dismissal should continue.-

The evils of accepting the suggestion made by the State of Uttar Pradesh are obvious. Even in cases where it appears to the High Court at the admission stage that the appeal has no merit, notice would have to be issued to the accused person and he would either have to be kept in custody or enlarged on bail. He would be put to the expense of entering appearance and of engaging counsel. Ultimately, it may well happen that the High Court will dismiss the appeal without calling upon the respondent accused to reply. All this would cause unjustified harassment to the accused. We have, therefore, no hesitation in rejecting this suggestion.

35. Powers of the High Court under section 417, Cr. P.C.-

We shall turn now to the question of the uncertainty in the law said to have been created by certain recent decisions of the Supreme Court.

View of the Privy Council.- Prior to 1934, High Courts in India had expressed differing views in regard to the principles on which they should dispose of an appeal against acquittal under section 417. In 1934, the Judicial Committee of the Privy Council granted leave to appeal in a case specifically "in order that the difference of judicial opinion, which it was alleged existed, might be resolved".1 Though a large number of authorities was cited before the Privy Council, Lord Russell of Killowen who delivered the judgment of the Board, without referring to any of the cases, summed up the legal position which followed from a construction of the relevant sections of the Code in the following words:

1. Sheo Swarup v. Emperor, AIR 1934 PC 227 (228).

"There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered' or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice' or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

"To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice".

These principles were reaffirmed by the Judicial Committee of the Privy Council in a later decision.1

1. Nur Mohammad v. Emperor, AIR 1945 PC 151, Lord Thankerton delivering the judgment of the Board and referring to the earlier decision stated:

"there really is only one principle, in the strict sense of the word, laid down there; that is, that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed", p. 152.

36. Early decisions of the Supreme Court.-

Judging from its reported decisions, the question seems to have first arisen before the Supreme Court in March, 1950, shortly after its establishment. The matter was heard by a Court of six judges, judgment being delivered by Fazal Ali J.1 He referred with approval to the decision of the Privy Council in Sheo Swamp's case as containing "the true position in regard to the jurisdiction of the High Court under section 417, Cr. P.C. in an appeal from an order of acquittal". The judgment also stated that the court could not "support the view which has been expressed in several cases that the High Court has no power under section 417, Criminal Procedure Code to reverse a judgment of acquittal unless the judgment is perverse or the subordinate court has in some way or other misdirected itself so as to produce a miscarriage of justice".2

1. Prandas v. State, AIR 1954 SC 36.

2. Prandas v. State, AIR 1954 SC 38.

A similar view was expressed by Kania C.J. in delivering the judgment of a Bench consisting of himself and Patanjali Sastri and S.R. Dass J.J. in January 1951.1 In that case, the High Court had reversed an order of acquittal and convicted the accused. The Supreme Court set aside the conviction and restored the acquittal.

1. Tulsiram Kanu v. State, AIR 1954 SC 1.

The question again came up before the Supreme Court in a case which though reported in 1953 was decided in May 1951.1 The court, in that case, threw no doubt on the principles accepted by it in the earlier cases and recognized the right of the appellate court in such appeals to review the evidence and reach its own conclusion on facts. It was, however, pointed out that the presumption of innocence of the accused continued right upto the end and that great weight should be attached to the view of the trial judge who had the opportunity of seeing and hearing the witnesses.

1. Wilayat Khan v. State of Uttar Pradesh, AIR 1953 SC 122.

37. A new approach: Need for "substantial and compelling reasons".-

The Supreme Court had occasion again to deal with the powers of the court in an appeal against an acquittal in 1952.1 Curiously enough, in the decision of this case the Supreme Court made no reference either to the decision of the Privy Council in Sheo Swarup's case or its own three earlier decisions. The court observed that "the presumption of innocence of the accused is further reinforced by his acquittal and the findings of the trial court can be reversed only for very substantial and compelling reasons".

1. Surajpal Singh v. State, AIR 1952 SC 52.

38. Consequences.-

The Supreme Court appears by this decision to have applied two new principles in considering cases of appeals from acquittals. It seems to have laid down that in dealing with such appeals, the court is faced, not with the normal presumption of the innocence of the accused, but a higher presumption or a further reinforced presumption arising out of the order of acquittal made in his favour. It also seems to lay down that in such cases, the findings of fact of the trial court cannot be dealt with and departed from as in an ordinary appeal but that they can be reversed only for "very substantial and compelling reasons".

These doctrines, which appear to be a departure from the decisions of the Privy Council and the earlier decisions of the court, have created doubts in the minds of the High Courts and have led them again to apply to these appeals principles similar to those which were rejected by the Privy Council and the Supreme Court itself in the decisions mentioned above.

39. Two lines of cases.-

Since the decision in Surajpal Singh's case, there have been several decisions of the Supreme Court which have dealt with this question. Some of the judgments content themselves with reiterating the principles laid down by the Privy Council in Sheo Swarup's case while others refer to the further reinforced presumption of innocence and the substantial and compelling reasons referred to in Surajpal Singh's case. It appears that in deciding some of these cases, the court had not before it some of its own previous decisions. This seems to have led to the use of expressions which seem to lay down divergent principles.1

1. *C.M. Narayan v. State of Travancore-Cochin, AIR 1953 SC 478 (decided on 10-11-1952);

**Puran v. State of Punjab, AIR 1953 SC 459 (decided on 13-11-1952).

*Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 (dated.-12-1952).

**Ajmer Singh v. State of Punjab, AIR 1953 SC 76 (decided on 10-12-1952).

**Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39.

*Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322.

*Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637.

*Bansidhar Mohanty v. State of Orissa, AIR 1955 SC 585.

*Atley v. State of Uttar Pradesh, AIR 1955 SC 807.

**Surjan v. State of Rajasthan, AIR 1956 SC 425.

Cases marked ** seem to follow Surjpal Singh's case: those marked *Sheo Swarup's case.

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