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PETITIONER: MOHINDER SINGH AND ORS. ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT20/12/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: 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 and 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 writ  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

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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]

JUDGMENT:        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

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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 491 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

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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. 492