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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: P. T. APPAIAH AND ANOTHER

DATE OF JUDGMENT28/08/1980

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. SARKARIA, RANJIT SINGH

CITATION:  1981 AIR  365            1981 SCR  (1) 580  1980 SCC  (4) 316

ACT:      Code of  Criminal  Procedure  1898,  s.  498-Difference between two  Judges of  High  Court  on  nature  of  offence committed by  accused-Reference to  third Judge-Third  Judge considering  evidence   and  finding   accused  not  guilty- Acquittal whether valid.

HEADNOTE:      The Sessions  Judge convicting  the  respondents  under section 302  read with  section 34 of the Indian Penal Code, sentenced each  of them to imprisonment for life. On appeal, a Division  Bench of  the High  Court found that the accused caused the  injuries but  the Judges  composing the Division Bench differed on the nature of the offence committed by the accused. The third Judge to whom the case was referred under section 429 of the Code of Criminal Procedure 1898, found no motive for  the accused  to commit the offence and held that the evidence  of the  chief prosecution  witness  was  of  a doubtful nature and that it was not safe to find the accused guilty relying  on that  evidence.  He  acquitted  both  the accused.      In appeal  to this Court by the State, it was contended that as  the  difference  between  the  two  Judges  of  the Division Bench  was confined  to the  nature of  the offence only, the  third Judge  to whom  the case  was referred in a reference  under   section  429  of  the  Code  of  Criminal Procedure, had  no power  to acquit the accused by upsetting the concurrent finding of two Judges.      Dismissing the appeal, ^      HELD: 1.  The third Judge to whom the case was referred under section  429 did  not  over-step  the  limits  of  his jurisdiction and  it cannot  be said  that the view taken by him was unreasonable or perverse. [586 D-E]      2. In  Bhagat Ram’s Case, [1972] 3 SCR 303 the scope of section 429  was not considered, nor any question was raised whether the  Judges of the Division Bench could restrict the powers of  the third  Judge under  section 429,  nor was the notice of  the Court drawn to the three earlier decisions of this Court. [584 D]      3. What  Section 429 contemplates is that it is for the third  Judge   to  decide  on  what  points  he  shall  hear

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arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. [584 E]      Babu and  Others v. State of Uttar Pradesh [1965] 2 SCR 771 applied.      4. The  language of section 429 of the Code of Criminal Procedure is  explicit that the case with the opinion of the Judges comprising the Court of 581 Appeal shall  be laid before another Judge of the same Court and that  the judgment  or order shall follow the opinion of the third  Judge who  can or  will deal with the whole case. [585 D-E]      Union of  India and another v. B. N. Ananti Padmanabiah etc. [1971] Suppl. SCR 460: Hethubha v. The State of Gujarat [1971] 1 SCR 31; referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 112 of 1975.      Appeal by  Special Leave  from the  Judgment and  Order dated 3-10-1974 of the Andhra Pradesh High Court in Criminal Appeal Nos. 57 and 325/72.      P. Rama  Reddy, G.  S.  Rao  and  G.  N.  Rao  for  the Appellant.      A. N. Mulla and G. Narisimhalu for the Respondent.      The Judgment of the Court was delivered by      GUPTA, J.-This  appeal preferred by the State of Andhra Pradesh is directed against a judgment of the Andhra Pradesh High Court by which a learned Judge of that Court exercising jurisdiction under  section 429  of  the  Code  of  Criminal Procedure, 1898  set aside  the order  of conviction and the sentences  passed  on  the  respondents  before  us  by  the Sessions Judge,  Chittoor Division.  The charge  against the respondents was  that at about ten on the night of September 5, 1971  Venkataramaiah Chetty and Chakala Giddappa (P.W. 1) were returning  to their village Sanganapalle from Kadepalle where they  had gone  and when  they were  about a mile from Sanganapalle, respondent  No. 1  armed with  a bill-hook and respondent No.  2 with  a stout stick attacked them and beat Venkataramaiah Chetty  severely causing multiple injuries as a result  of which  he died. The Sessions Judge accepted the evidence of  P.W. 1  and the  dying declaration said to have been made  by  Venkataramaiah  Chetty  in  the  presence  of several  witnesses   including  P.W.  1  and  convicted  the respondents under  section 302  read with  section 34 of the Indian Penal  Code and  sentenced each  of them  to  undergo imprisonment for  life. On appeal preferred by the accused a Division  Bench   of  the  High  Court  rejected  the  dying declaration but accepted the evidence of P.W. 1 to find that the accused  caused the  injuries  to  which  Venkataramaiah Chetty succumbed;  the learned Judges composing the Division Bench however differed on the nature of the offence that was committed by  the accused in causing these injuries. Madhava Reddy J.  held that  having regard  to  the  nature  of  the injuries it  was not  possible  to  find  that  the  accused intended to  cause death  and that  the offence committed by the accused  was culpable  homicide not  amounting to murder punishable under section 582 304 Part I of the Indian Penal Code. Sriramulu J. was of the opinion that  in causing  the injuries  the accused  had the common intention  to kill  Venkataramaiah  Chetty.  He  also observed that  even assuming  the offence did not fall under

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clause "Firstly" of section 302 of the Indian Penal Code, it undoubtedly fell  under clause "Thirdly" of that section and on this  view reached the conclusion that the Sessions Judge was  justified  in  convicting  the  accused  persons  under section 302  read with  section 34 of the Indian Penal Code. The case was then referred to a third Judge, Ramchandra Raju J., under  section 429  of the  Code of  Criminal Procedure, 1898. Raju  J. found on a consideration of the evidence that "there  does   not  appear  to  be  any  motive,  much  less sufficient motive,  for the  accused to commit the offence". The immediate  motive  for  the  offence  according  to  the prosecution was  an incident  said to  have taken  place  on September  1,   1971,  four   days  prior  to  the  date  of occurrence, when  P.W. 5,  a son of the deceased, was beaten by the  accused when cattle of the deceased strayed into the field of  the first  respondent. According  to Raju  J. what happened on  September 1, was a trivial incident, P.W. 5 did not sustain  any injury,  he did  not report  the matter  to anyone and  even when the deceased came and intervened there was no  quarrel, the  accused did  not try  to  assault  the deceased  nor  the  deceased  tried  to  beat  the  accused. Pointing out certain infirmities in the evidence of the sole eye-witness P.W.  1, Raju  J. found  that his  evidence  was "doubtful and  suspicious". P.W. 7 who sought to corroborate a part  of the  evidence of P.W. 1, according to Raju J. did not "inspire  much confidence".  Raju J.  did not  think  it "safe  to  find  the  accused  guilty  by  placing  absolute reliance on  the evidence  of  P.W.  1  and  accordingly  he acquitted both the accused.      Before us  Mr. P.  Rama Reddy  for the  State of Andhra Pradesh contends  that it was not open to the third Judge to upset the  concurrent finding  of both  the  learned  Judges composing the Division Bench that the accused were guilty of some offence;  it is  argued that  as the difference between the two  Judges of  the Division  Bench was  confined to the nature of the offence only, the third Judge to whom the case was referred  under section  429 of  the  Code  of  Criminal Procedure had no power to acquit the accused. Section 429 of the Code of Criminal Procedure, 1898 reads:           "When the Judges composing the Court of appeal are      equally  divided  in  opinion,  the  case,  with  their      opinions thereon, shall be laid before another Judge of      the same  Court, and such Judge, after such hearing (if      any) as  he thinks  fit, shall deliver his opinion, and      the judgment or order shall follow such opinion." 583 In support  of his  contention Mr.  Rama Reddy relies on the judgment  of   this  Court   in  Bhagat   Ram  v.  State  of Rajasthan.(1) This  was a decision by a Bench of two Judges. In that case Bhagat Ram, an Inspector of Police, was charged with having  committed offences  under sections  120B,  161, 218, 347  and 389  of the  Indian Penal  Code and also under section 5(1)(a)  read with section 5(2) of the Prevention of Corruption Act.  Another accused, Ram Swaroop, who was tried along with  Bhagat Ram  was charged  with  having  committed offences under  sections 120B  and 165A  of the Indian Penal Code. The  trial court  acquitted both  Bhagat Ram  and  Ram Swaroop of  all the  charges framed against them. The appeal preferred by  the State  of Rajasthan  against the acquittal was heard  by a  Division Bench  composed of Tyagi and Lodha JJ. The  Division  Bench  confirmed  the  acquittal  of  Ram Swaroop. The  acquittal of  Bhagat Ram  in  respect  of  the charges under  sections 347,  218, 389  and  120B  was  also affirmed. The  Judges however  differed on the point whether the acquittal  of Bhagat  Ram regarding  the  charges  under

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section 161  of the Indian Penal Code and section 5(1)(a) of the Prevention  of  Corruption  Act  should  be  maintained; according to  Tyagi J. these charges had not been proved, in the opinion  of Lodha  J. they  had been.  In view  of  this difference, the learned Judges passed the following order:           "The result  is  that  the  appeal  of  the  State      against  the  order  of  acquittal  of  respondent  Ram      Swaroop is dismissed. The appeal of the State so far as      it relates  to the  acquittal of  respondent Bhagat Ram      under sections 347, 218, 389 and 120B Indian Penal Code      is also dismissed. In view of the difference of opinion      about the  acquittal of  Bhagat Ram  under section  161      Indian Penal Code and Section 5(1)(a) of the Prevention      of Corruption  Act,  the  matter  may  be  laid  before      Hon’ble the Chief Justice for referring it to the third      Judge." Jagat Narayan  J., the  third Judge  to whom  the  case  was referred, held  that Bhagat Ram was guilty of offences under Section 161  and also  sections 120B,  218 and  347  of  the Indian Penal Code. This Court held in Bhagat Ram v. State of Rajasthan (supra)  that it was not permissible for the third Judge to  reopen  the  matter  and  convict  Bhagat  Ram  of offences under  sections 120B,  218 and  347 of  the  Indian Penal Code because:           "The present  was not  a case  wherein the  entire      matter relating  to  the  acquittal  or  conviction  of      Bhagat Ram  had been  left open  because  acquittal  or      conviction of Bhagat Ram had 584      been left  open because  of  a  difference  of  opinion      between the two Judges. Had that been the position, the      whole case relating to Bhagat Ram could legitimately be      considered by  Jagat Narayan,  J.  and  he  could  have      formed  his  own  view  of  the  matter  regarding  the      correctness of the order of acquittal made by the trial      Judge in  respect of  Bhagat Ram.  On the  contrary, as      mentioned earlier,  an express  order had  been made by      the Division  Bench upholding  the acquittal  of Bhagat      Ram for  offences under sections 120B, 218, 347 and 389      IPC and  the State  appeal in  that  respect  had  been      dismissed." Clearly the  decision in  Bhagat Ram’s  case  turns  on  the construction  put   on  the  order  of  the  Division  Bench referring "the  matter" to  the third  Judge that  he was to decide only  the  question  on  which  the  two  Judges  had differed Bhagat  Ram’s acquittal  in respect  of the offence under section  161 Indian  Penal Code and section 5(1)(a) of the Prevention of Corruption Act was justified. The scope of section 429  was not  considered in  Bhagat Ram’s  case,  no question was raised whether the Judges of the Division Bench could restrict  the powers  of the third Judge under section 429, nor  the notice of the Court appears to have been drawn to three  earlier decisions  of this  Court on the point. In Babu and others v. State of Uttar Pradesh(1) a Bench of five Judges held:           "The section  [s. 429] contemplates that it is for      third Judge  to decide  on what  points he  shall  hear      arguments, if  any, and  that  postulates  that  he  is      completely free  in  resolving  the  difference  as  he      thinks fit"      The next  case is  Hethubha v.  The State of Gujarat(2) which was decided by a Bench of two Judges. In that case the Sessions Judge  acquitted three  accused of the charge under section 302  read with  section 34  Indian  Penal  Code  but convicted them  under section  304 Part II read with section

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34. Two  of them  were also  convicted under section 323 and the third  was convicted under section 323 read with section 34. On  appeal to High Court one of the two Judges composing the Division  Bench held  that it  was the  first  appellant alone who inflicted the fatal injury on the victim and found him guilty  under section  302, while  the second  and third appellants were  found guilty  under section  324 read  with section 34. The other learned Judge was of the view that all the accused  must be  acquitted as,  according to  him,  the evidence was  not satisfactory.  The case  was  then  placed before a third Judge under section 429 of the Code of 585 Criminal Procedure,  1898 who  convicted the first appellant under section  302 of  the Indian Penal Code, and the second and third appellants under section 302 read with section 34. The conviction  of the first and the second appellants under section 323  and of  the third  appellant under  section 323 read with  section 34 was upheld. In appeal to this Court it was contended  that the third Judge under section 429 of the Code of  Criminal Procedure,  1898 could  only deal with the differences between  the two  Judges and  not with the whole case. Repelling this contention it was held:           "This Court  in Babu  and Ors.  v. State  of Uttar      Pradesh(1)-held that it was for the third learned Judge      to decide  on what  points the arguments would be heard      and therefore he was free to resolve the differences as      he thought  fit. Mehta.  J. here  dealt with  the whole      case. Section 429 of the Criminal Procedure Code states      "that when  the Judges  comprising the  Court of Appeal      are equally  divided in  opinion, the  case with  their      opinion thereon,  shall be laid before another Judge of      the same  Court and  such Judge, after such hearing, if      any, as  he thinks  fit, shall deliver his opinion, and      the judgment  or order  shall follow such opinion". Two      things are  noticeable; first,  that the  case shall be      laid before  another Judge, and, secondly, the judgment      and order  will follow the opinion of the third learned      Judge.  It  is,  therefore,  manifest  that  the  third      learned Judge can or will deal with the whole case."      In  Union   of  India  and  another  v.  B.  N.  Ananti Padmanabiah etc.,(2)  which was unreported when Bhagat Ram’s case  was  decided,  a  three  Judge  Bench  of  this  Court confirmed the  decision in Hethubha’s case. In this case the accused who  were found  guilty of  offences under  sections 5(2) and 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947  as well  as sections  467 and  471 of  the Indian Penal Code  by the  Special Judge,  Gauhati, challenged  the order of conviction in the High Court of Assam and Nagaland. On difference  of opinion  between the  two  Judges  of  the Division Bench of the High Court, the case was referred to a third Judge.  Before the  third Judge  new plea was advanced that the  Magistrate at  Delhi had no jurisdiction to accord sanction  to  an  Inspector  of  the  Delhi  Special  Police Establishment to  investigate the  case in  Assam. The third Judge held  that an  order of  a  magistrate  of  the  local jurisdiction was  necessary, that  only a  magistrate of the district where  the crime  was committed  and no  magistrate outside the jurisdiction was competent to make an 586 order for  investigation and  accordingly the  learned Judge quashed the  proceedings before the Special Judge. In appeal to this  Court it  was contended  that the third Judge could only deal with the difference between the two Judges and not with the  whole case.  This contention was rejected with the observation:

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         "This question  came up  for consideration  in the      recent unreported  decision in  Hethubha &  Ors. v. The      State of  Gujarat (supra).  This Court  held  that  the      third learned Judge could deal with the whole case. The      language  of  section  429  of  the  Code  of  Criminal      Procedure is explicit that the case with the opinion of      the Judges comprising the Court of Appeal shall be laid      before another  Judge of  the  same  Court.  The  other      noticeable feature  in  section  429  of  the  Code  of      Criminal Procedure  is that the judgment or order shall      follow the opinion of the third learned Judge." In view  of these  authorities which  were  not  noticed  in Bhagat Ram’s  case we  are unable  to agree that the learned third Judge  in the  instant case  to whom  it was  referred under section 429 overstepped the limits of his jurisdiction in deciding the case as he did.      On the  merits of  the case,  we have already indicated how the  learned third  Judge viewed the evidence; it cannot be said that the view taken was unreasonable or perverse.      The appeal is accordingly dismissed. N.V.K.                                     Appeal dismissed. 587