Full Judgment Text
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PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
RAMPRAKASH, P. PURI AND ORS.
DATE OF JUDGMENT:
16/10/1969
BENCH:
ACT:
Code of Criminal Procedure (Act 5 of 1898), ss. 417, 419-
Bombay High Court Appellate Side Rules, 196O (as applicable
to Gujarat High Court, r. 6-Rule allowing joint appeal by
persons aggrieved by same judgment--Joint appeal by State
against acquittal of several persons after a joint trial
whether maintanable.
HEADNOTE:
The respondents were tried jointly and acquitted by a common
judgment. State of Gujarat filed a Joint appeal against
their acquittal in. the High Court. Rule 6 of the Bombay
High Court Appellate Side Rules, 1960 (which were applicable
to the proceedings in the Gujarat High Court) provided for
joint appeals by persons aggrieved by a common judgment or
order. There was however no, rule specifically providing
for similar joint appeals by the State. A Division Bench of
the High Court dismissed the joint appeal by the State
against the respondents on the ground that such an appeal
was not maintainable. The Division Bench held that the
decision by a Full Beach of the High Court in Lalu lela’s
case in which a contrary view had been taken was not binding
on the Division Bench. In appeal to this Court against the
judgment of the Division Bench.
HELD : (i) The Division Bench was in error-in not treating
as binding the earlier decision of a Full Bench of the same
court on the same question. 1877 A-F]
Mahadeolal Kanodia v. The Administrator General of West
Bengal, 1960] 3 S.C.R. 578, Jai Kaur & Ors. v. Sher Singh
etc. [1960] 3 S.C.R. 975, Atma Ram v. State of Punjab & Ors.
[1959] 1 S.C.R. 748, Jaisri Sahu v. Rai Dewan, [19621 2
S.C.R. 559 and Budha Singh v. Laltu Singh, I.L.R. 37 All.
604 (P.C.), applied.
(ii) Rule 6 of the Bombay High Court Appellate Side Rules
does not in terms cover the case of an appeal by the State
against several accused persons jointly tried and acquitted
by the trial court by a common order, but if an appeal by
persons jointly tried and convicted is competent, then on
principle it is difficult to negative the maintainability of
one appeal by the State against a common order acquitting
several persons tried jointly. Like all rules of procedure
this rule demands a construction which would’ promote the
cause of justice and not obstruct it. (878 D-F]
A joint appeal by the State against several accused persons
acquitted at a joint trial is not contrary to any provision
of the Code of Criminal Procedure and is therefore not
legally prohibited. Sections 258, 410, 417, 419 or 423 of
the Code do not indicate any bar as was suggested by the
order of the High Court. Indeed the plain reading of s. 417
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which pro%ides for an appeal in a case and not against an
accused person, seems to be wide enough to permit -,A joint
appeal. The matter being one of mere form it calls for a
liberal approach requiting the appeal to be beard on its
merits. The order of the High Court must accordingly be set
aside. [878 G-H; 879 C-F]
876
Rabari Ghela jadav V. State of Bombay, A.I.R. 1960 S.C. 748,
,explained.
Lalu Jela. v. State of Gujarat, A.I.R. 1962 Guj. 125,
approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 60
and 63 of 1965.
Appeals from the judgment and order dated November 20, 1963
of the Gujarat High Court in Criminal Appeals Nos. 957 and
796 of 1963 respectively.
Urmila Kapur and S. P. Nayar, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Dua, J. These two criminal appeals (Nos. 60 and 63 of 1965)
with certificate raise a common question and are, therefore,
being disposed of by a common judgment. The Gujarat High
Court also recorded the main judgment only in Criminal
Appeal No. 60 of 1965.
The question which arises for determination is whether,
several accused persons jointly tried have been acquitted by
the trial Court, the state can’ prefer one appeal against
the acquittal of all of them. The High court held such a
joint appeal not to be maintainable under Cr. P.C. and so
holding rejected the appeal by the State without going into
the merits. The Division Bench of the ,High Court speaking
through Raju, J. recorded a very lengthily order though the
reasoning in support of the non-maintainability of the joint
appeal is confined to a couple of pages only. The High
Court in its order referred to ss 258, 410, 417, 419 and 423
of the Code and came to the conclusion that the scheme of
Chapter XXXI of the Code as disclosed by these sections and
particularly by S. 419 is against the maintainability of a
joint appeal by the State against an order acquitting
several accused persons tried jointly. Section 419 was
construed by the High Court to contain a bar against a joint
appeal. The major portion of the impugned order dealt with
the question of binding character of the Full Bench decision
of that High Court since reported as Lalu Jela v. State of
Gujarat(1) on the Division Bench hearing the present
appeals. After a lengthy ,discussion the Division Bench
came to the conclusion that the Full Bench decision holding
a joint appeal to be maintainable in law was not binding on
it.
On the view that we propose to take on the question of main-
tainability of a joint appeal against a common order
acquitting
(1) A.I.R. 1962 Guj. 125.
877
several accused persons tried jointly, we do not consider it
necessary to embark on a lengthy discussion on the question
of binding charter of decisions of Full Benches and of
Division Benches on future Benches of co-ordinate
jurisdiction of the same High Court. We may only make a
passing reference to the decisions of this Court cited at
the bar in support of such binding character. In Mahadeolal
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Ranodia v. The Administrator General of West Bengal(1), this
Court observed as follows :
"We have noticed with some regret that when
the earlier decision of two judges of the same
High Court in Beorajan’s an’s case was cited
before the learned judges who heard the
present appeal they took on themselves to say
that the previous decision was wrong, instead
of following the usual procedure in case of
difference of opinion with an earlier
decision, of referring the question to a lar-
ger Bench. Judicial decorum no less than
legal propriety forms the basis of judicial
procedure. If one thing is more necessary in
law than any other thing, it is the quality of
certainty. That quality would totally
disappear if judges of co-ordinate
jurisdiction in a High Court start overruling
one another’s decision. If one Division Bench
of a High Court is unable to distinguish a
previous decision of another Division bench
and holding the view that the earlier decision
is wrong itself gives effect to that view, the
result would be utter confusion."
Other decisions cited containing similar observations are :
jai Kaur and others v. Sher Singh etc. (2 ) and Atma Ram v.
State of Punjab and others(3). We are aware of a still more
recent decision of this Court in Jaisri Sahu v. Rai Dewan
(4) in which re Ference is made to a Privy Council decision
in Budha Singh v. Laltu Singh(5).
The question of competency of a joint appeal by several per-
sons convicted by one order at a joint trial was referred
for authoritative decision to a Full Bench of the Gujarat
High Court in Lalu Jela’s case(6). The argument before the
Full Bench was that r. 6 in Chapter XXVI of the Bombay High
Court Appellate Side Rules (which are applicable to the
proceedings in Gujarat High Court) was inconsistent with
Chapter XXXI of the Code of Criminal Procedure, with the
result that a joint appeal to the High Court by several
persons convicted at a joint trial was not maintainable.
The Full Bench on an exhaustive discussion held such
(1) [1960]3.S.C.R. 78 (2) [1960] 3 S.C.R. 975.
(3) [1959] 1 S.C.R. 748. (4) [1962] 2 S.C.R. 558.
(5) I.L.R , 37 All, 604 (P.C.). (6) A.I.R. 1962 Guj. 125.
878
an appeal to be competent and did not consider r. 6 to be
inconsistent with Chapter XXXI of the Code. The decision of
this Court in Rabari Ghela Jadav. State of Bombay(1) was
explained and distinguished. If we agree with the principle
accepted in the Full Bench decision then the present appeals
would on the reasoning of that decision seem prima facie to
possess merit and in the absence of some other cogent reason
to the contrary the appeals would have to succeed.
Chapter XXVI of the Bombay High Court Appellate Side Rules,
1960 deals with "criminal business" and r. 6 is in the
following words
"Joint appeal or application by persons affected by the same
judgment.
6. All persons aggrieved,by a judgment or an order passed
in a criminal case, may join in one appeal or application
for revision, and one copy of the judgment or order
complained of shall be sufficient."
This rule, of course, does not in terms cover the case of an
appeal by the State against several accused persons jointly
tried and acquitted by the trial Court by a common order,
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but if an appeal by persons jointly tried and convicted is
competent, then on principle it is difficult to negative the
maintainability of one appeal by the State against a common
order acquitting several persons tried jointly. This rule
deals with a matter of procedure and not of Substantive
rights and seems to be based on sound commonsense.
Procedure has been described to be a hand-maid and not a
mistress of law, intended to subserve and facilitate the
cause of justice and not to govern or obstruct it. Like all
rules of procedure, this rule demands a construction which
would promote this cause. So construed a joint appeal, in
compliance of this rule must be sustained. The power to
frame this rule is specifically conferred on the High Court
by s. 554(2)(c) Cr. P.C. and r. 6 does not seem to us to be
inconsistent with any provisions of the said Code. Holding
this rule to be valid, in agreement with the decision of the
Full Bench, the competency of a joint appeal by several
accused persons convicted at one trial must be upheld. On
the same reasoning a joint appeal by the State against
several accuses. persons acquitted at a joint trial has also
to be held not to be contrary to any provision of the Code
and therefore not legally prohibited. Section 419 of the
Code on which the High Court seems to have relied in support
of the non-maintainability of a joint appeal by the State,
lays down inter alia that every appeal shall be made in the
form of a petition in writing presented by the appellant
(1) A.I.R, 1960 S.C. 748.
879
or his pleader and every such petition shall, unless the
court otherwise directs, be accompanied by a copy of the
judgment or order appealed against. This section does not
seem to us to prohibit a joint appeal by the State against
more than one accused persons. The contrary view taken by
the, High Court on the construction of this section is
clearly unacceptable. Section 417 which provides for an
appeal in a case of acquittal empowers the State Government
to direct the public prosecutor in any case to present an
appeal from an order of acquittal. This section also does
not suggest any bar or prohibition against presentation of a
joint appeal against several accused persons acquitted in a
case. On the other hand, it provides for an appeal in a
case, and not against an accused person, who has, been
acquitted. The plain reading of this sections therefore.,
seems to be wide enough to permit a joint appeal. Sections
258, 410 and 423 of the Code also do not seem to indicate
any bar as is suggested by the order of the High Court.
This Court in Rabari Ghela Jadav’s case(1), on the basis of
which the judgment of the High Court mainly proceeds, merely
lays down that the Appellate Court hearing an appeal cannot
admit it only on a question of sentence and that such a
restricted order of admission being invalid, the appellant
would be entitled to insist that his appeal should be heard
on the merits. This decision, in Our opinion, does not
militate against the maintainability of a joint appeal. The
Full Bench decision of the Gujarat High Court rightly
distinguished and explained this decision. As observed
earlier, once we accept the Full, Bench to lay down the
correct rule of law, then there cannot be much difficult in
upholding the maintainability of a joint appeal by the State
against several accused persons acquitted at a joint trial.
There being no legal bar (at least we are aware of none
either in the Cr. P.C. or elsewhere), such an appeal cannot
be held to suffer from any serious legal infirmity. And
then the matter being one of mere form it calls for a
liberal approach requiring the appeal to be heard on the
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merits. To hold it to be unmaintainable on this ground
would defeat the larger cause of justice. Unfortunately, we
did not have the advantage of arguments on behalf of the
respondents because they were unrepresented, but on
considering the scheme of the relevant provisions of the
Code of Criminal Procedure, we are of the view that the High
Court was wrong in holding the joint appeal not to be
maintainable and in summarily rejecting the same.
We accordingly allow the appeal, set aside the order of the
High court and remit the case back to it for decision of the
appeal on the merits.
G.C. Appeal allowed.
(1) A.I.R. 1960 S.C. 748.
880