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PETITIONER: THE STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: THADI NARAYANA

DATE OF JUDGMENT: 24/07/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1962 AIR  240            1962 SCR  (2) 904  CITATOR INFO :  R          1966 SC1742  (7)  RF         1968 SC 653  (9)

ACT: Criminal  Appeal-Acquittal  of some charges  and  conviction others--Appeal  by  accused  against  conviction-Powers   of appellate  court-If  can set aside  acquittal  also-Code  of Criminal Procedure, 1898 (V of 1898), s. 423 (1) (b).

HEADNOTE: The  accused was tried for offences under s. 302 and s.  392 Indian  Penal Code.  The Sessions judge acquitted her  under s.  302  and s. 392 but convicted her under  s.  411  Indian Penal code.  The accused appealed to the High Court  against her  conviction  under  s. 41 1. The State  did  not  appeal against  the  acquittal  nor did the High  Court  issue  any notice to the accused under s. 439 (2).  The High Court  set aside the order of conviction under s. 41 1 as well as-  the order of acquittal 905 .under  s.  302  and s. 392 and ordered  a  retrial  on  the original charges.  The accused contended that the High Court had no jurisdiction to set aside the order of acquittal  and to direct a retrial on the original charges. Held, that while exercising its powers under s. 423 (1)  (b) Code of Criminal Procedure in the appeal against the convic- tion  under s. 411 Indian Penal Code the High Court  had  no jurisdiction  to set aside the order of acquittal passed  in favour  of the accused by the Sessions judge in  respect  of the  offences  under  ss. 302 and  392  Indian  Penal  Code. Section 423 (1) (b) is confined to appeals against orders of conviction and sentence, and the powers exercisable under it must  be restricted to the conviction and sentence.   If  an order  of acquittal is not challenged by an appeal under  s. 417 Code of Criminal Procedure and if no action is taken  by the High Court under, s. 439 Code of Criminal Procedure  the order  of acquittal becomes final and cannot  be  challenged indirectly in an appeal by the accused against the order  of conviction  and  sentence.  It is wrong to assume  that  the whole  case is before the High Court when it  entertains  an appeal  against conviction.  The power conferred by  s.  423

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(1)  (b)  (1) is intended to be exercised in  cases  falling under  ss. 236 to 238 Cr.  P. C., and the expression  "alter the  finding"  in s. 423 (1) (b) (2) does  not  include  the power to alter or modify the finding of acquittal. Kishan  Singh v. The King-Emperor, (1928) L.R. 55  I.A.  390 and Jayaram Vithoba v. The State of Bombay, (1935) 2  S.C.R. 1049, relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 222 of 1959. Appeal  by special leave from the judgment and  order  dated February  24,  1959,  of  the  Andhra  Pradesh  High  Court, Hyderabad, in Criminal Revision Case No. 636 of 1958.                     AND       Criminal Appeal No. 112 of 1961. Appeal  by special leave from the Judgment and  order  dated July 15, 1958, of the Andhra Pradesh High Court in  Criminal Appeal No. 237 of 1957. K.R.  Chaudhuri and T. M. Sen, for appellant in  Cr.   A. No. 222/59. P. Ram Reddy, for respondent. 906 P.Ram Reddy, for appellant in Cr.  A. No. 112/61. K.R. Chaudhuri and T. M. Sen, for the respondent. 1961.  July 24.  The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The short and interesting question  which arises for our decision in the present appeal is in  respect of  the  powers of the High Court in  disposing  of  appeals under  s. 423(1)(b) of the Code of Criminal  Procedure.   In dealing  with  an  appeal preferred by  a  convicted  person against the order of conviction and sentence imposed on  him by  the  trial court can the High Court in exercise  of  its appellate  powers under s. 423(1)(b) reverse the finding  of acquittal  recorded  by  the trial court in  favour  of  the appellant in respect of an offence which is directly not the subject-matter  of the appeal ? On this question  there  has been a difference of opinion amongst our High Courts, and it appears from reported decisions that in the same High  Court sometimes  conflicting  views  have been  expressed  on  the point. This question arises in this way.  In the Court of Sessions, Visakhapatnam  Division, the respondent Thadi  Narayana  was charged at the instance of the appellant the State of Andhra Pradesh  with having committed offences punishable under  s. 302  and s. 392 of the Indian Penal Code.  The case  against her  was that on December 27, 1956 at about night  meal-time at Gangacholapenta she, committed the murder of a minor girl K.  Sriramulamma  by  stabbing her with  a  knife  and  thus rendered  herself ’liable to be punished under s.  302.   It was also alleged against her that at the aforesaid time  and place  and  in the course of the same  transaction  she  had robbed the said victim of her four pairs of gold Konakammulu and.  a  pair  of gold Alakalu and  thereby  committed  ’the offence of robbery under 907 s.   392.   On April 16, 1957 the learned trial judge  found that  the charges against the respondent under ss.  302  and 392 had not been proved beyond a reasonable doubt, and so he acquitted her of the said offences.  He, however, held  that the respondent was shown to have committed an offence  under s.  411  and  so he convicted her of the  said  offence  and sentenced her to undergo rigorous imprisonment for a  period

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of two years. Against the order of conviction and sentence thus imposed on her the respondent preferred a jail appeal in the High Court of  Andhra Pradesh.  This appeal was heard by  Sanjeeva  Rao Naidu,  J.  By his judgment delivered on July 22,  1958  the learned   judge  expressed  his  conclusion  that  he,   was satisfied that gross miscarriage of justice had resulted  in the  case "and the only way to rectify this is to order  the retrial  of the case on the original charges under  ss.  302 and 392 of the Indian Penal Code so thatthe accused may be properly tried thereon and,if     found      guilty, convicted for the offence or proved by evidence to have been committed by her." In the result the conviction and sentence of  the accused under s. 411 was set aside and the case  was remanded  to  the  trial court for retrial  on  the  charges already framed against her. Accordingly  when her retrial commenced on November 3,  1958 an  application was made on behalf of the respondent  before the trial judge (Criminal M. P. No. 242 of 1958) in which it was  urged that her trial in respect of the  offences  under ss.302  and  392 was not permissible having  regard  to  the order  of acquittal which had been passed in her  favour  at the  original trial.  The validity of the  plea  ofautrefois acquit  thus raised by the respondent was challenged by  the appellant,  and  it was ’urged that by virtue of  the  order passed  by  the High Court ordering her  retrial  the  trial court in law was 908 bound  to proceed with the retrial.  The trial judge  upheld this  contention and observed that he was bound to obey  the directions given by the High Court and if he were to examine the  merits  of  the contention raised  before  him  by  the respondent he would be transgressing his limits, because the determination  of the point raised by the  respondent  would necessarily  involve examining the correctness or  otherwise of  the High Court’s order directing a retrial.   The  trial court thus rejected the application made by the respondent. Against  this order the respondent moved the High  Court  by her  Criminal  Revision Application No. 636  of  1958.   The Criminal Revision Application, as placed before a Full Bench because  it  raised two important questions of  law.   These questions were thus framed:       (1)Where  an  accused is tried by  a  Sessions       Court  on charges of murder and  robbery,  and       the  Sessions  Court acquits  the  accused  of       those  charges  and convicts her  only  of  an       offence  under  section 411 I. P. C.  and  the       accused appeals to the High Court against  the       conviction   and   sentence  but   the   State       Government   does  not  appeal   against   the       acquittal of the accused on charges of murder.       and  robbery, is it open to the High Court  to       set  aside the conviction and  sentence  under       section 411 1. P. C. and order the accused  to       be  retried  on  the  charges  of  murder  and       robbery ?       (2)When in pursuance of the order of the  High       Court the Sessions Court again frames  charges       under  sections 302 and 392 I. P.  C.  against       the  accused, is it or is it not open  to  the       accused   to  plead  the  statutory   bar   of       AUTREFOIS ACQUIT’ under section 403 Cr. P.C.? The answer given by the Full Bench to the first,                     909 question is that except in exercise of the revisional powers

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under  s. 439 of the Code of Criminal Procedure  subject  to the  limitations  prescribed therein it is not open  to  the High  Court to order a retrial on the charges on  which  the accused was acquitted by the trial court in an appeal by the accused  against his conviction, though ’it is empowered  to reverse  the conviction and order a retrial on  that  charge alone.   On the second question the Full Bench held that  it was open to the accused to plead the bar of autrefois acquit under  s.  403 notwithstanding the order of the  High  Court unless there is an adjudication on the acquittal by the High Court  either under s. 423(1) (a) or S. 439 of the  Code  of Criminal Procedure.  As a result of these answers the  revi- sional application preferred by the respondent was  allowed, her plea under s.403 was upheld and it was ordered that  the retrial of the respondent for the offences under ss.302  and 392 of the Indian Penal Code cannot be proceeded with., This order  was  passed on March 11, 1959.  It  is  against  this order  that the appellant has come to this Court by  special leave. The  powers of the appellate court in disposing  of  appeals are  prescribed by s. 423 of the Code.  This section  occurs in  Chapter  XXXI  of the Code  which  deals  with  appeals, reference  and  revision.   In the  present  appeal  we  ire concerned with the provisions of s.423(1) (b).  However,  it is convenient to read s. 423(1) (a) and (b)       423.(1) The Appellate Court shall then  send       for the record of the case, if such record  is       not  already  in Court.  After  perusing  such       record, and hearing the appellant or his plea-       der, if he appears, and the Public Prosecutor,       if he appears, and, in case of an appeal under       section  411A, subjection (2) or section  417,       the accused, if he appears, the Court may,  if       it  considers  that  there  is  no  sufficient       ground.  for interfering, dismiss the  appeal,       or may-       910       (a)in  an appeal from an order  of  acquittal,       reverse  such order and direct   that  further       inquiry  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;       (b)in  an appeal from conviction, (1)  reverse       the  finding  and  sentence,  and  acquit   or       discharge  the  accused  or order  him  to  be       retried  by a Court of competent  jurisdiction       subordinate   to  such  Appellate   Court   or       committed for trial, or (2) alter the finding,       maintaining the sentence, or, with or  without       altering  the finding, reduced  the  sentence,       or,  (3)  with or without such  reduction  and       with  or without altering the  finding,  alter       the  nature of the sentence, but,  subject  to       the  provisions  of section  106,  sub-section       (3),. not so as to enhance the same; Section  423(1) (a) expressly deals with an appeal  from  an order  of acquittal and it empowers the Appellate Court  to. reverse  the  order  of acquittal and  direct  that  further inquiry  be  made  or  that the  accused  may  be  tried  or committed for trial, as the case may be, or it may find  him guilty  and  pass  sentence on him  according  to  law.   In appreciating the powers conferred on the Appellate Court  in dealing with an appeal against, an order of acquittal it  is necessary  to  bear  in mind that the only  forum  where  an

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appeal  can be preferred against an        original   or  an appellate order of ’acquittal is the High Court, that is  to say the powers conferred on the Appellate Court by  s.423(1) (a)  can be exercised only by the High Court and not by  Any other  Appellate Court.  Under s. 408 the Court of  Sessions is  an  Appellate  Court to which  appeals  from  orders  of conviction  passed  by  an  Assistant  Sessions  Judge,,   a District Magistrate or any other Magistrate lie, and so  the Court  of  Sessions is An Appellate- Court,  but  no  appeal against an order of acquittal passed by any      911 of  the  aforesaid  authorities can lie  to,  the  Court  of Sessions.   All appeals against acquittal whether passed  by the trial court or the Appellate Court lie only to the  High Court, and so the powers prescribed by s. 423(1) (a) can  be exercised  only  by the High Court.  As  we  will  presently point out this fact has some bearing on the construction  of the material words used in s. 423(1) (b) (2). Section 423(1) (b) (1) in terms deals with an appeal from  a conviction,  and it empowers the Appellate Court to  reverse the  findings  and  sentence and  acquit  or  discharge  the accused  or  order  a  retrial  by  a  Court  of   competent jurisdiction  subordinate  to  such  Appellate.   Court   or committed for trial.  In the context it is obvious that  the finding  must  mean the finding of guilt.   The  words  "the finding  and sentence" are co-related.  They  indicate  that the finding in question is the cause and the sentence is the consequence; and so what the Appellate Court is empowered to reverse  is the finding of guilt and consequently the  order as  to sentence.  There is no.difficulty in holding that  s. 423(1)  (b)  (1)  postulates the presence of  an  order,  of sentence against the accused and it is in that context  that it  empowers the Appellate Court to reverse, the finding  of guilt  and  sentence  and  then  to  pass  any  one  of  the appropriate  orders: therein specified.  In our  opinion  s. 423 (1) (b) (1) is, therefore, clearly confined to cases  of appeals preferred against orders of conviction and sentence, and the powers exercisable under it are therefore condition- ed by the said consideration.  It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred-by him against the order of  conviction  in respect of another  offence  charged  and found  proved.  There can thus. be no doubt that  the  order passed by Naidu, J. cannot be justified under this clause. 912 At this stage it would be relevant to point out that  Naidu, J.  did not purport to proceed under s.439 in  dealing  with the  respondent’s’  case when the appeal  preferred  by  her against  her conviction was being argued before him.  It  is true  that  the  learned judge noticed that  the  appeal  in question  was  a  jail appeal and the,  respondent  was  not defended by a lawyer.  So he ordered Mr. A. Gangadhara  Rao, an Advocate of’ the Court, to appear amicus curiae to  argue the pea on behalf of the respondent; but, as the Full  Bench has pointed, out, the record clearly shows that neither  the respondent nor her pleader was given notice under s’  439(2) of  the Code, and even the advocate appointed amicus  curiae did  not  know  much less the respondent  herself  that  the learned  judge intended to exercise his powers  under  s.439 against  the  respondent in respect of  the  offences  under ss.302  and 392 despite the fact that the appellant had  not preferred an appeal against the order of acquittal passed in favour of the respondent on those grounds.  Therefore, it is

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unnecessary  for us to consider in this appeal the  question about  the scope and effect of the provisions of ss.423  and 439  of  the Code read together.  The only  provision  under which the order passed by Naidu J. is seriously sought to be supported is s.423 (1) (b) (2)     and   it   is   to   that provision that we must now turn. It  is  urged  by  Mr.   Choudhury  on  behalf  of  the appellant  that  in  construing the  expression  "alter  the finding"  it  would be necessary to remember that  when  the High  Court  deals  with an appeal  against  conviction  the proceedings  in  the  Appellate Court  are  in  substance  a continuation  of the proceedings in the trial court  and  so the  entire  case  is  in  that  sense  pending  before  the Appellate  Court.   The argument is that in  exercising  the powers conferred on it by s.423 (1)(b)(2) the High Court  is not  confined  only  to the order  of  conviction  which  is directly                     913 the subject-matter of the appeal but it is possessed of  the entire  proceedings of the case against, the accused and  it is in the light of this fact that the expression "alter  the finding"  must be construed.  In our opinion, this  argument is  not  wellfounded.  The scheme of s. 423  itself  clearly shows  that  when  appeals against  conviction  are  brought before  the  Appellate Court by the convicted person  it  is only  with the orders of conviction and  matters  incidental thereto that fall to be decided by the Appellate Court.   An order of acquittal passed in favour of an accused person can be  challenged  by an appeal as provided by  s.417  of  the, Code,  and s.423(1) (a) therefore expressly deals  with  the powers  of  the  High Court in  dealing  with  such  appeals against  orders of acquittals.  Prima facie,if an  order  of acquittal is not challenged by an appeal as contemplated  by s.417  and  if no action is taken by the  High  Court  under s.439  the said order of acquittal becomes final and  cannot be  impugned indirectly by the State in resisting an  appeal filed  by a convicted person against his conviction.   In  a case  where several offences are charged against an  accused person  the  trial is no doubt one; but  where  the  accused person is acquitted of some offences and convicted of others the  character of the appellate proceedings and their  scope and  extent is necessarily determined by the nature  of  the appeal  preferred before the Appellate Court.  If an  appeal is preferred against an order of acquittal by the State  and no  appeal  is filed by the convicted  person.  against  his conviction it is only the order of acquittal which falls  to be  considered by the Appellate Court and not the  order  of conviction.   Similarly,  if  an  order  of  conviction   is challenged by the convicted person but the order of acuittal is not challenged by the State then it is only the order  of conviction  that  falls to be considered  by  the  Appellate Court  and  not  the  order  of  acquittal.   Therefore  the assumption that the whole case is before the High Court when it entertains an appeal against conviction 914 is  not well-founded and as such it cannot be  pressed  into service in construing the expression "alter the finding". In  this connection we ought to recall the fact that  it  is only the High Court which is authorised to entertain appeals against  acquittal  under  s.417  of  the  Code.   But   the provisions  of  s.423  (1) (b) are  applicable  to  all  the Appellate Courts and so the meaning of the expression "alter the finding" cannot change according as the Appellate  Court is  the High Court or the Court of Sessions.  It  is  common ground  that  the Court of Sessions which  is  an  Appellate

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Court cannot alter the finding of acquittal in pursuance  of the provisions of s.423 (1) (b) (2) but the argument is that the,  High  Court  can.  This argument  puts  two  different interpretations  on the same expression "alter the  finding" and  that would not be a proper mode to adopt in  construing the  clause.  We are, therefore, inclined to bold that  just as  the  Court  of sessions is not  entitled  to  alter  the finding  of acquittal in exercising its powers under s.  423 (1) (b) (2) so is the High Court not entitled to do it,.  In other words, the expression "alter the finding" has only one meaning, and that is alter the finding of conviction and not the finding of acquittal. Besides,  if  the  expression "alter  the  finding"  was  to include the power to reverse the finding of acquittal it  is not  easy  to realise why s. 423 (1) (a)  should  have  been enacted  at  all.  From the very fact that s.  423  (1)  (a) deals independently with the topic of appeals from orders of acquittal,  it  would  be  reasonable  to  infer  that   the appellate  power in respect of the orders of  acquittal  are dealt with separately and exclusively under s. 423 (1)  (a), whereas  appellate powers to deal with orders of  conviction are  dealt with separately and exclusively under s. 423  (1) (b).  The scheme of s. 423, therefore, is inconsistent  with the argument that cl. (2) of S.423 (1) (b) covers orders  of acquittal and empowers the Appellate Court to alter the said orders.,  915 As a matter of construction the words ""the, finding" in the expression  "alter  the finding" must mean  the  finding  of conviction’  because  the clause begins with "in  an  appeal from  a  conviction"  and it is obvious  that  read  in  the context  of the opening words of the clause  "’the  finding" must  mean  the finding of conviction and no other.   It  is with an appeal from conviction that the’clause deals and  it is the finding of conviction or guilt which it empowers  the Appellate  Court  to alter.  The word "alter"  must  in  the context be distinguished from the word "reversed".  Whereas, under  s. 423(1)(b)(1) power is conferred on the High  Court to  reverse the order of conviction the power  conferred  on the  Appellate Court by the expression "’alter the  finding" is merely the power to alter.  Reversal of the order implies its  obliteration,  whereas alteration would imply  no  more than   modification   and  not   its   obliteration.    This consideration  also shows that what- the expression aims  at is the finding of conviction or guilt and not the finding of acquittal or innocence. There  is yet another consideration which leads to the  same conclusion.  Section 423(1)(b)(2) emphatically refers to the sentence  and  requires that despite the alteration  of  the finding  the sentence must be maintained.  In  other  words, the  finding  and the sentence go together  and  the  clause provides  that, even if the finding is altered the  sentence may  be  retained.  Similarly, the sentence may  be  reduced with or without altering the finding.  The reference to  the sentence in both the cases indicates that the finding  which can  be altered under the clause is a finding which has  led to  the imposition of sentence on the accused person.   This clause would naturally raise the question as to what are the kinds  of  cases in which the power can be exercised  ?  The answer  to this question is furnished by the  provisions  of ss. 236, 237 and 238 Section. 236 deals with cases where 917 separately enacted in order to empower the High Court in the interest  of justice to examine the orders of acquittal  and if it is satisfied that in any case, the order of  acquittal

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needs  to be revised the High Court can exercise  its  power suo  motu.   The  legislature  has  therefore   deliberately provided  wide  powers  under  s. 439  in  the  interest  of justice,  and so it is very unlikely that  the’  legislature could  have intended to confer a similar power on  the  High Court under s. 423 (1) (b) (2). In  this connection we ought to deal with  another  argument which  is sometimes dressed into service in support  of  the wider  construction of the clause ’falter the finding".   It is  said that the provisions of s. 439 apply-to cases  where there is a complete and express order of acquittal,  whereas a.  423  (1)  (b) (2) covers cases of  implied  and  partial acquittal.   It  is  also  urged that  whereas  there  is  a specific  provision  made in s. 439 (4) by  which  the  High Court  is precluded from converting a finding  of  acquittal into  one  of conviction there is no such limitation  in  s. 423.   Both these arguments do not appear to us to be  well- founded.   In regard, to the argument of  implied  acquittal being  open to review by the High Court under s.423 (1)  (b) (2) it would be enough to refer to at decision of the  Privy Council  where  this argument has been rejected.  In  Kishan Singh  v. The King-Emperor (1) the appellant had been  tried by a Sessions Judge under s. 302 on a charge of murder.   He was convicted under S.304 of culpable homicide not amounting to  murder.  This conviction was recorded in the,  light  of the  provisions of s.238 (2) of the Code,.  For the  offence under s.304 he was sentenced to five years’ rigorous  impri- sonment.   While convicting the appellant under s.  304  the trial court did not record a specific order of acquittal for the  offence  under s. 302.  The State  Government  did  not appeal  but  applied  for revision on the  ground  that  the appellant should have been (1) (1928) 55 I. A. 390. 918 convicted  of murder and that the sentence  was  inadequate. The  High Court thereupon convicted the appellant of  murder and  sentenced him to death.  This order of  conviction  and sentence was successfully challenged by the appellant before the Privy Council.  The Privy Council held that the finding at   the trial ought to be regarded as of acquittal on the charge of murder and that consequently s.    439 (4) of  the Code precluded the High Court from having jurisdiction  upon revision  to  convict  on that  charge.   Dealing  with  the argument  that s. 439 (4) should be confined only  to  cases where there is complete acquittal their Lordships thought it necessary  to say that ",if the learned Judges of  the  High Court of Madras intended to ’hold that the prohibition in s. 439,  sub  s. (4) refers only to cases where the  trial  has ended  in a complete acquittal of the accused in respect  of all  charges  or  offences, and not to a case  such  as  the present, where the accused has been acquitted of the  charge of  murder, but convicted of the minor offence  of  culpable homicide not amounting to murder, their Lordships are unable to  agree with that part of their decision.  The  words   of the  sub-section are clear and there can be no doubt  as  to their   meaning.    There  is  no  justification   for   the qualification which the learned Judges attached to the  sub- section." It would thus be clear that any attempt to confine the  operation  of  s. 439 (4) to  cases  of  the  so-called complete acquittal cannot be entertained; and so it would be idle  to  suggest that s. 423 (1) (b) (2)  covers  cases  of implied  or partial acquittal a s. 439 deals with  cases  of express and complete acquittal.’ In setting aside the  order of  conviction for the offence of murder  imposed....by  the High Court on the appellant the Privy Council observed  that

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the  High  Court had acted without jurisdiction  and  so  it could not accept the plea that no prejudice had thereby been caused  to the  appellant,.  This case,  therefore,  clearly establishes Chat in exercising the powers conferred on it by s. 423 (1) (b) the 919 High Court cannot convert acquittal into conviction that can be done only by adopting the procedure prescribed in s.  439 of the Code. Then,  as to the argument based on the  specific,  provision contained in s. 439(4) it is obvious that no such limitation could have been prescribed in regard to the provisions of s. 423  (1)(b) for the reason that the orders of acquittal  are outside the purview of that clause.  Therefore, it would  be unreasonable to suggest that because there is no  limitation on the power of the High Court as there is in s. 439(4)  the High   Court  can,  in  dealing  with  an   appeal   against conviction,  alter the finding of acuittal recorded  at  the Trial in favour of the accused person.  We must  accordingly bold that the Full Bench of the Andhra High Court was  right in  coming  to the conclusion that Naidu, J.  acted  without jurisdiction in altering the finding and order of  acquittal passed  in  favour  of  the respondent  in  respect  of  the offences under ss. 302 and 392 when he, was dealing with the appeal  preferred by the respondent against  her  conviction under s. 41 1. In  this  connection  we  way  incidentally  refer  to   the observations  made by Venkatarama Ayyar, J., who  spoke  for the Court, in Jayaram Vithoba v. The State of Bombay. (1) In dealing  with the contention of the accused that  the  Court had  no  power under s.423 (1) (b) of the Code  of  Criminal Procedure  to  award a sentence under s. 148 in a  case  the accused  was  charged under ss. 324 and 148  of  the  Indian Penal Code., the High Court had observed that they had ample power to transpose the sentence so long as the transposition does not amount to enhancement, and this observation  raised a question about the construction of s. 423 (1)(b).  Dealing with  the  said question, Venkatararia  Ayyar,  J.  observed there is nothing about (1)  (1955) 2 S C. R. 1049. 920 the  transposition of the sentence under s. 423 (1)(b).   It only  provides for altering the finding and maintaining  the sentence, and that can apply only to cases where the finding of guilt under one section is altered to a finding of  guilt under  another.   The  section  makes  a  clear  distinction between a reversal of a finding and its alteration".   These observations  seem  to take the same view of the  scope  and effect of the provisions of s. 423(1)(b) as we are  inclined to do. As  we  have already indicated at the commencement  of  this judgment;,  on the question raised for our decision  in  the present appeal there has been conflict of judicial  opinion. We  do  not,  however,  propose  to  consider  the   several decisions  to which our attention was drawn because, in  our opinion, no useful purpose would be served by examining  the facts  in  all those cases and subjecting  to  scrutiny  the reasons  adopted for arriving at different conclusions.   We would, therefore, content ourselves with the broad statement that respondent has relied upon the decisions in Indra Kumar Nath  v. The State (1).  The State v. Amlesh Chandra Ray.  ( 2), Fulo v. State (3) (Full Bench), and Taj Khan v. Rex  (4) (Ful  Bench),  whereas  the appellant has  relied  upon  the decisions in Krishna Dhan Mandal v.     Queen-Empress   (5), Queen-Empress v. Jabanulla (6),

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(1)  A. I. R. (1954) Cal. 375. (2) r. L.R. (1953)1 Cal.302. (3)  (1956) I. L.R. 35 Pat. 144. (4) A. I. R. 1932 All. 369. (5)  (1895) I.L.R. 22 Cal. 377. (6) 1896 I.L.R. 23 Cal. 975. 921 In Re Illuru Lakshmaih, (1) Golla Hanumappa v. Emperor,’ (2) Re  K. Bali Reddi, (3) In Re Rangiah, (4) Baua Singh v.  The Crown (5) (Full Bench) and the majority judgment in  Emperor v.  Zamir Qasim (6) The minority view expressed by Mulla  J. in   Emperor  v.  Zamir  Qasim(6)  contain  a  careful   and exhaustive  discussion of the topic and the  respondent  has strongly relied upon it. There is one more point which still remains to be considered and that is the subject-matter of the second issue  referred to  the Full Bench.  It is urged before us by Mr.  Choudhury on behalf of the State that the Full Bench itself has  acted in  excess of jurisdiction in entertaining the plea.  arised by the respondent under s. 403, because he contends that the judgment  delivered by Naidu J. could not be revised by  the High Court having regard to the provisions of s. 369 of  the Code.  We have already mentioned that this question has also been  answered  in favour of respondent by the  Full  Bench. The  judgment  of  the Full, Bench does not  show  that  the effect of the provisions of s. 369 was argued before it.  In substance, however, the Full Bench has held that the.  order passed by Naidu J. is outside the authority conferred on the High Court under s. 423 (1)(b)(2) and as such can be treated to be without jurisdiction and therefor e a. nullity.  We do not  propose  to decide this point in  the  present  appeal, because  we  have,  allowed  1  A.  I.  R.  1952  Mad.  101. (2)(1912) I.L.R.35 Mad. 243. (3)  1914 I. L. R. 37 Mad. 119. (4) A. I. R, 1954 Mys. 122. (5) (1942) I.L.R. 23 Lah. 129   (6) I.L.R. (1944) All. 403. 922 Mr.  Rama  Reddy,  who appeared for  the’respondent  at  our instance,  to make an application for special leave  against the order passed by Naidu J. Accordingly Mr. Rama Reddy  has made  an application, Special Leave Petition (Criminal)  No. 476 of 1961, for special leave and has prayed-for excuse  of delay made in filing it.  Having regard to the very  unusual circumstances in which the present application has been made we  feel  no difficulty in condoning the delay made  by  the respondent  in filing her application for special leave  and granting  her special leave to appeal against the  order  in question.   In fairness we ought to add that  Mr.  Choudhury did  not resist the respondent’s prayer for excuse of  delay in  the  present  case.  Since we are now  possessed  of  an appeal,  Criminal Appeal No. 112 of 1961, filed  by  special leave  against  the  judgment  and order  of  Naidu  J.  the question as to whether the Full Bench could have  considered the  validity  of the said judgment and order has  become  a matter  of academic importance.  There can be no doubt  that in. the appeal preferred by the respondent against the  said order it is certainly open to her to challenge its validity, and as we have come to the conclusion that the order  passed by  Naidu T. is with out jurisdiction we have no  difficulty in  allowing the respondent’s appeal and setting aside  the, said order.       In the result Criminal Appeal No. 112 of  1961       preferred by the respondent Thadi  Narayana’is       allowed  and the High"Court’s order passed  in       Criminal Appeal No. 237 of                            923       1957  by which case against her had been  sent       back  for  retrial  on  the  original  charges       against  her  under  ss. 302 and  392  of  the

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     Indian  Penal Code is set aside.   The  conse-                     quence  of this decision is that the  order  of       acquittal  passed in her favour by  the  trial       court ill respect of the said offences is  re-       stored.   The  State  has  not  preferred  any       appeal  against the High Court’s  decision  in       Criminal  Appeal No. 237 of 1957 where by  the       conviction of Thadi Narayana in respect of the       offence  under s. 411 and sentence imposed  on       her  in that behalf have been set aside  while       ordering  her retrial for the  major  offences       under ss. 302 and 392 of the Indian Penal Code       ;  and  so this latter order of  acquittal  in       respect of S. 411 will stand.  In the  circum-       stances  of this case this result  cannot,  be       avoided.  Criminal  Appeal  No.  222  of  1959       preferred by the State against the decision of       ’the   Full  Bench  therefore  fails  and   is       dismissed. Criminal Appeal No. 11 2 of 1961 allowed. Criminal Appeal  No. 222 of 1959 dismissed 924