05 April 1982
Supreme Court


Bench: MISRA,R.B. (J)
Case number: Appeal Criminal 45 of 1982








CITATION:  1982 AIR 1052            1982 SCR  (3) 595  1982 SCC  (2) 177        1982 SCALE  (1)310

ACT:      Party  to   an  appeal   against  conviction/acquittal- Necessary party-occurrence  of offence  taking place  in the territorial limits  of one  State, but the trial takes place in another  State, pursuant  to an  order of transfer by the Supreme Court-In  the appeal  by the accused before the High Court,  which   is  the  necessary  party  respondent-Public Prosecutor of  the State  where the offence took place or of the State  where  the  trial  took  place-Code  of  Criminal Procedure, 1973,  sections  2(4),  24,  224,  378,  385  and 432(7), scope of.      Records, summoning  of-Whether non-summoning of records vitiates the  order in  appeal, Code  of Criminal Procedure, 1973 section 385(2), explained-Setting aside of the judgment is not  possible  unless  the  ingredients  of  section  465 Criminal Procedure Code are satisfied.

HEADNOTE:      Vinay Kumar,  the husband  of the deceased Asha and his mother Chhano  Devi were  charged, convicted for the offence of  burning   alive  the  deceased  and  sentenced  to  life imprisonment on  a complaint  by Hanumant Dass the father of the deceased and the appellant in Criminal Appeal 45 of 1982 by the  Sessions Judge  Gurdaspur, Punjab.  The  offence  is alleged to have been committed within the territorial limits of the  State of  Himachal Pradesh, but on an application of the complainant  the case was transferred by an order of the Supreme Court  inasmuch as  the accused were the brother-in- law and  mother-in-law of  a Judge  of  the  High  Court  of Himachal Pradesh. In appeal by tho accused the High Court of Punjab issued,  on 22-6-1981,  notice for  6-7-1981  to  the Advocate General  of Punjab  only and on that date heard the appeal and  acquitted both  the accused. Hence the appeal by the complainant  and the  special  leave  by  the  State  of Himachal Pradesh.      Dismissing the  appeal and  the Special Leave Petition, the Court, ^      HELD: 1.  The charge  levelled against  the High  Court that it  was in  a hot  haste to  decide the  appeal at  the earliest possible  is incorrect  in view  of the order dated 22-6-1981 passed by the High Court of Punjab. [600 B]



    2:1. Section 385 of the Code of Criminal Procedure is a mandatory provision  and the requirement of the section must be satisfied.  In the  appeal before tho High Court State of Punjab was  made a  party and  notice of the appeal was also given to the Advocate General of Punjab. From sections 2(4), 24, 225,  378 and  432 it  is evident  that there shall be a Public Prosecutor  for conducting  any prosecution appeal or other proceeding on behalf of the Central 596 Government or  State Government in the High Court. If notice has  been  given  to  the  Public  Prosecutor,  namely,  the Advocate-General of  Punjab the  requirement of law has been fulfilled. [601 B-C, 603 C-D]      2:2. Section 432 of the Criminal Procedure Code defines "appropriate Government"  as meaning  (a) in cases where the sentence is for an offence against, or the order referred to in sub-section  (6) is  passed under  any law  relating to a matter to  which the  executive power  of the Union extends, the Central  Government; (b)  in other cases, the Government of the  State within  which the offender is sentenced or the said  order   is  passed.  According  to  this  section  the appropriate Government  is the  Government of  the State  of conviction and  not the  Government of  the State  where the offence was committed. [603 C-D]      State of  Madhya Pradesh  v. Ratan  Sing & Ors., [1976] Supp. S.C.R. 552, applied.      3. To  contend that  the High  Court  disposed  of  the appeal even  without summoning  the record  is incorrect. No specific allegation  has been  made  in  the  Special  Leave Petition that  the record was not summoned. The tenor of the judgment of  the High  Court indicates  that the record must have been  there before  the High  Court. There  is  copious reference to  the materials  on the  record which  could  be possible only  when the  record was  there before the court. Besides, the  counsel for  the appellant  made  a  statement before the court that on the finding of fact recorded by the High Court  he was entitled to an acquittal and in this view of the  matter even if the record had not been summoned that would not  be fatal.  Further proviso  to sub-section (2) of section 385 itself provides "...the court may dispose of the appeal  without  sending  for  the  record,"  in  a  certain situation. The  rigour of  sub-section (2)  of section  385, which provides that "the Appellate Court shall then send for the record  of the  case...." has  been taken  away  by  the proviso in  a certain  situation. If  the appellant  himself says that the appeal can be allowed on the findings recorded by the  Sessions Judge,  the non-summoning of the record, if it was  at all  so, would  not be fatal. The complainant was present with  his counsel,  the State  Advocate-General  was also present.  If there  had been  any grievance  about  the record, they  would have  raised an  objection.  Their  non- objection on this point is also an indicator that the record was there  or in  any case,  the summoning of the record was not thought  to be  necessary by  the parties. [604 E-H, 605 A-B]      4. On  merits also  there is no case for the appellants since  each   and  every  aspect  of  the  matter  has  been thoroughly discussed by the High Court which has referred to the error committed by the Sessions Judge in the approach of the case  and also  in making unwarranted assumptions. There is no  eye witness.  The fate  of the  case hinges  upon the circumstantial evidence.  The High  Court has dealt with the two dying  declarations, one  recorded by the Doctor and the other by  the Assistant  Sub-Inspector. The  High Court also took into  consideration the oral dying declaration on which



the prosecution  strongly relied.  But even that declaration does not implicate the accused. [605 G-H, 606 A-B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45 of 1982. 597      From the Judgment and Order dated the 9th July, 1981 of the Punjab  and Haryana High Court at Chandigarh in Criminal Appeal No. 333-DB of 1981,                             AND      S.L.P. (Crl.) No. 2948 of 1982.      R.L. Kohli and R. C. Kohli for the Appellants.      T.U. Mehta and A.G. Ratnaparkhi for Respondent No. 1.      N.C. Talukdar and R.N. Poddar for Respondent No. 3.      N.C. Talukdar  and R.N.  Poddar for  the Petitioner  in S.L.P. (Crl.) No. 2498/81.      D. D. Sharma for the State.      The Judgment of the Court was delivered by      MISRA, J.  The appeal  as well  as  the  special  leave petition are directed against the judgment of the High Court of Punjab  and Haryana  at Chandigarh  dated 9th July, 1981. Criminal appeal  has been filed by the complainant while the special leave  petition has  been  filed  by  the  State  of Himachal Pradesh.  Vinay Kumar  and his  mother Chhano  Devi were convicted  for the  murder of  Asha, the  wife of Vinay Kumar  by   burning  her   alive  and   sentenced  to   life imprisonment by  the learned  Sessions Judge,  Gurdaspur. On appeal by  the accused, the High Court acquitted them by the impugned judgment.      The prosecution  case set  up at the trial was that the deceased Asha  was married  with Vinay  Kumar in July, 1972. The marriage  was an  arranged marriage. It did not prove to be a success, the apparent cause for the failure of marriage was that Asha was only a matriculate and not cultured enough to move  about in  the society  with the husband. To make up this deficiency  the deceased  again resumed her studies and started  attending   college  at   Nagrota  Bhagwan.   While prosecuting her  studies she  was  rebuked  and  abused  and sometimes even  thrashed, whenever  she visited the house of her-in-laws. She however, kept on suffering in the vain hope that in  due course of time things might improve. There was, however,  no   improvement  and  she  was  fed-up  with  the maltreatment and 598 cruelty meted  out to her in the in-laws house. She left the matrimonial  home   and  started  living  with  her  parents sometime in the year 1975 or early 1976.      In 1977  Vinay Kumar  filed a  petition in the court of the District  Judge, Kangra  at Dharamshala under section 13 of the  Hindu  Marriage  Act  for  the  dissolution  of  his marriage with  the deceased on various grounds including one of desertion. The District Judge in the first instance tried for reconciliation  between the  spouse and  as  an  interim arrangement Asha  returned to her-in-laws house in June 1978 on trial  basis, while divorce petition was kept pending and adjourned to July 29, 1978. As the parties did not appear in the Court  on the date fixed, it was presumed that they were living  happily   and  the   proceedings  were,   therefore, consigned to the record.      On 5th  of August,  1978 at  about 11  a.m. Kanwal Nain P.W. 4,  Bil Bhandur  P.W. 14,  employee of the Post office, which was  just in  front of  the house  of the accused at a



distance of  10/12 feet,  and a  number of other persons saw smoke coming  out of the window of the house of the accused. When Bil  Bhandur and  others went  to the house, they found the outer  door locked.  There was no other means of ingress to the  house. After  a short  while one Raj brought the key from Chhano  Devi accused with which the lock was opened and entry gained  into the  house. Asha  was found  burning  and after extinguishing  the fire,  she was removed to the local hospital.      Dr. O.  P. Dutta attended her and sent an intimation of the incident  to the Incharge local Police Post. He recorded the statement  of Asha  on the out-patient register 13x. PL. Meanwhile  Kesar  Singh,  Assistant  Sub-Inspector,  arrived there an  d after  getting a  certificate from Dr. Dutta, he also recorded  her statement  Ex. PU.  From Civil  Hospital, Kangra Asha  was removed  in a  truck to a Civil Hospital in Dharamshala (H.P.) where she breathed her last.      In her  statements recorded  by  Dr.  Dutta  and  Kesar Singh, the  deceased disclosed that her clothes caught fire, while she  was preparing  tea. The  police suspected no foul play and  did not  register any  case.  The  father  of  the deceased Hanumant  Dass,  however,  made  a  report  on  7th August, 1978  and a  case was  registered on that basis. The accused were sent up for trial. When the case was pending in the  Court   of  Sessions  Judge,  Dharamshala  in  Himachal Pradesh, the complainant moved an application to the 599 Supreme Court for transfer of the case from Himachal Pradesh to some  other province. The case was transferred to a Court of  competent  jurisdiction  at  Gurdaspur  in  Punjab.  The Sessions Judge,  Gurdaspur convicted  both the accused under section 302  read with  section 34  of the Indian Penal Code and sentenced them to life imprisonment. This conviction was based only  on the  circumstantial evidence. Accused went up in appeal  to the High Court. The High Court in its turn set aside the  order of  conviction and acquitted the accused of the charge.      The complainant  has filed  the  present  appeal.  Shri Kohli  appearing   for  the   complainant  has   strenuously contended that  the appeal  before the  High Court  has been allowed in  the absence of the State of Himachal Pradesh and without any  notice to  that State  and as such the impugned judgment of  the High  Court is  a nullity and should be set aside on  that ground  alone. The accused had impleaded only the State of Punjab as a party and the High Court has issued notice to  the Advocate-General  of Punjab. As a second limb to this  argument it  has been  contended by Shri Kohli that the appeal  was filed  in the  High Court on 15th June, 1981 and while  considering the  application for  bail on 22nd of June, 1981,  posted the  appeal for  hearing on 6th of July, 1981 after  service of  notice on  the  Advocate-General  of Punjab and  the appeal was decided on 9th July, 1981 without even summoning  the record. Thus the High Court was in a hot haste to  dispose of  the  appeal  even  without  reasonable opportunity being  afforded to the counsel for the State and without impleading  the appropriate  State as a party to the appeal and  without notice  to the  counsel for the State of Himachal Pradesh.      We may  first deal  with the  criticism of  the learned counsel about  the undue haste in the disposal of the appeal by the  High Court.  It  appears  that  Shri  M.R.  Mahajan, counsel for  the appellants while moving the application for bail made a statement before the High Court and it is on his statement that  the case  was  posted  for  hearing  at  the earliest possible.  This will  be apparent  from  the  order



dated 22.6.1981  passed by the High Court while disposing of the application  for  bail.  The  order  insofar  as  it  is material for consideration of the point reads:           ".. Mr.  Mahajan,  Advocate  states  that  on  the      findings of  fact recorded  by the learned trial Judge,      the conviction  of the  appellants cannot be sustained.      Notice for 6.7.81. 600      to the Advocate-General, Punjab. Copy of the grounds of      appeal and  the judgment  rendered by the learned trial      Judge be  delivered in  the office  of the A. C. Punjab      within two  days, The  case is likely to be disposed of      on that date ... ... " Therefore, the  charge levelled  against the High Court that it was  in a  hot haste to decide the appeal at the earliest possible appears to be uncalled for.      This leads  us to  the main  contention raised  by Shri Kohli that  the transfer  of the case from Dharamshala lying within the  territorial jurisdiction  of the  High Court  of Himachal Pradesh  to Gurdaspur Lying within the jurisdiction of the  Punjab and  Haryana High  Court, does not change the parties and  the parties  remain the  same  even  after  the transfer of  the case from Dharamshala to Gurdaspur. In this view of  the legal  position, the  State of Himachal Pradesh where the  offence was  committed was  a necessary party and should have  been impleaded in appeal. In the absence of the State of  Himachal Pradesh  as a party and in the absence of notice to the counsel for the State of Himachal Pradesh, the High Court  was not justified in disposing of the appeal and its judgment is only a nullity.      This contention  is based on section 385 of the Code of Criminal Procedure.  Insofar  as  it  is  material  for  the purpose of the case it reads :           "385(1): If  the Appellate  Court does not dismiss      the appeal summarily, it shall cause notice of the time      and place  at which  such appeal  will be  heard to  be      given-      (i)  to the appellant or his pleader;      (ii) to  such  officer  as  the  State  Government  may           appoint in this behalf;      (iii) if the appeal is from a judgment of conviction in           case   instituted    upon   complaint,    to   the           complainant;      (iv) if the appeal is under section 377 or section 378,           to  the  accused,  and  shall  also  furnish  such           officer, complainant  and accused  with a  copy of           the grounds of appeal. 601      (2)  The Appellate Court shall then send for the record           of  the  case,  if  such  record  is  not  already           available in that Court, and hear the parties:           Provided that  if the  appeal is  only as  to  the      extent or  the legality  of the sentence, the Court may      dispose of the appeal without sending for the record.      (3) ............................. There is no denying the fact that section 385 of the Code is a mandatory  provision and  the requirement  of the  section must be  satisfied. In  the appeal  before the  High  Court, State of  Punjab was made a party and notice . Of the appeal was also  given to the Advocate-General of Punjab. According to Shri Kohli this does not satisfy the requirement of law.      It would be appropriate at this stage to refer to other relevant provisions of the Code:           Section 225 provides that-"In every trial before a      Court of Session, the prosecution shall be conducted by



    a Public Prosecutor."           Section  2(4)  defines  public  prosecutor-"Public      Prosecutor means any person appointed under section 24,      and includes any person acting under the direction of a      public prosecutor." Section 24  deals  with  "Public  Prosecutors  in  the  High Court":           "24. Public Prosecutors:-(I) For every High Court,      the Central  Government or  the State Government shall,      after consultation  with  the  High  Court,  appoint  a      Public Prosecutor  and may  also appoint  one  or  more      Additional Public  Prosecutors, for  conducting in such      Court, any  prosecution, appeal  or other proceeding on      behalf of  the Central  Government or State Government,      as the case may be.      .................................... Section 378 talks of an appeal in case of acquittal. Insofar as it is material it reads thus:           "378(1) Save  as otherwise provided in sub-section      (2) and  subject to  the provisions of sub-sections (3)      and (5) 602      the State  Government may,  in  any  case,  direct  the      Public Prosecutor  to present  an appeal  to  the  High      Court from  an original or appellate order of acquittal      passed by  any Court  other than  a High  Court, (or an      order of  acquittal passed  by the  Court of Session in      revision).           (2) If such an order of acquittal is passed in any      case in  which the offence has been investigated by the      Delhi Special  Police Establishment  constituted  under      the Delhi Special Police Establishment Act, 1946, or by      any other  agency empowered  to make investigation into      an offence  under any Central Act other than this Code,      the Central  Government  may  also  direct  the  Public      Prosecutor  to   present  an  appeal,  subject  to  the      provisions of  sub-sec. (3)  to the High Court from the      order of acquittal.      ........................... Section 432 authorises the appropriate Government to suspend or remit sentences.           "432(1): When  any person  has been  sentenced  to      punishment for  an offence,  the appropriate Government      may, at  any  time,  without  conditions  or  upon  any      conditions which  the person sentenced accepts, suspend      the execution of his sentence or remit the whole or any      part of the punishment to which he has been sentenced.           (2)  Whenever   an  application  is  made  to  the      appropriate Government for the suspension for remission      of a  sentence, the  appropriate Government may require      the presiding Judge of the Court before or by which the      conviction was  had or  confirmed, to state his opinion      as to  whether the  application should  be  granted  or      refused, together with his reasons for such opinion      (3) . . .. ... (4)........ (s)           (6) The provisions of the above sub-sections shall      also apply  to any  order passed  by a  Criminal  Court      under any  section of  this Code  or of  any other  law      which restricts  the liberty  of any  person or imposes      any liability upon him or his property, 603           (7) In  this  section  and  in  section  433,  the      expression "appropriate Government" means-           (a)  in cases where the sentence is for an offence                against, or  the order  referred to  in  sub-



              section (6) is passed under, any law relating                to a  matter to  which the executive power of                the Union extends, the Central Government;           (b)  in other  cases, the  Government of the State                within which the offender is sentenced or the                said order is passed. From the  various provisions  extracted above  it is evident that there  shall be  a Public Prosecutor for conducting any prosecution appeal  or other  proceeding on  behalf  of  the Central Government  or State . Government in the High Court. If notice  has been  given to the Public Prosecutor viz. the Advocate-General of  Punjab the  requirement of  law to  our mind has been fulfilled.      Shri Kohli,  however, contends  that occurrence  in the instant case  took place  within the  territorial limits  of Himachal Pradesh. That State, therefore, will continue to be a necessary  party in  the appeal  irrespective of  the fact that the appeal was filed in the Punjab High Court.      Section 432(7)  extracted  above  defines  "appropriate Government". "Appropriate  Government"  means-(a)  in  cases where the  sentence is  for an offence against, or the order referred to  in subsection  (6)  is  passed  under  any  law relating to  a matter  to which  the executive  power of the Union extends,  the Central  Government; (b) in other cases, the Government  of the  State within  which the  offender is sentenced or the said order is passed.      According to this section the appropriate Government is the Government  of the  State  of  conviction  and  not  the Government of  the State  where the offence was committed. A somewhat similar  question came  up for consideration in the State of  Madhya Pradesh v. Ratan Singh & Ors.,(1) where the respondent was  convicted and  sentenced to imprisonment for life by  a court  in the  State of  Madhya Pradesh.  At  his request he was transferred o a Jail in the State H 604 of Punjab,  to which  State he  belonged. He  applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to  be released since he had completed more than 20 years of  imprisonment. The  application  was  sent  to  the Government of  Madhya Pradesh,  which rejected it. In a Writ petition filed  by him  the High Court of Punjab and Haryana held that  the State of Punjab was the appropriate authority to release  him and directed the State of Punjab to consider the matter. This Court in appeal observed "a perusal of this provision clearly  reveals that  the test  to determine  the appropriate Government  is to  locate the  State  where  the accused was  convicted and  sentenced and  the Government of that State  would be  the appropriate  Government within the meaning of  sec. 401 of the Code of Criminal Procedure. Thus since the prisoner in The instant case, was tried, convicted and sentenced  in the  State of Madhya Pradesh, the State of Madhya Pradesh  would  be  the  appropriate  Government.  to exercise the  discretion for remission of the sentence under sec. 401(1)  of the  Code of  Criminal Procedure.... ." That was a  case  based  on  section  401  of  the  old  Criminal Procedure Code, but the Code of Criminal Procedure, 1973 has put  the   matter  completely  beyond  any  controversy  and reiterated the  provisions of  section 402(3) in sub-section (7) of section 432,      Lastly it was contended that the appeal was disposed of by the  High Court  even without summoning the record. There is no  warrant for  this assumption.  No specific allegation has been  made in the special leave petition that the record was not  summoned. We  have perused the Judgment of the High Court and  the tenor  of the  judgment  indicates  that  the



record must  have been  there before  the  court.  There  is copious reference to the materials on the record which could be possible only when the record was there before the court. Besides, .  the counsel  for the  appellant made a statement before the court that on the finding of fact recorded by the High Court  he was entitled to an acquittal and in this view of the  matter even if the record had not been summoned (for which there is no basis) that would not be fatal, Proviso to sub section (2) of section 385 itself provides "...the court may dispose  of the  appeal without sending for the record." in a certain situation. The rigour of subsection (2) of sec. 385, which  provides that  "the Appellate  Court shall  then send for  the record  of the case..." has been taken away by the proviso in a certain situation. If the appellant himself says that the appeal can be allowed on the findings recorded by the  Sessions Judge,  the non-summoning of the record, if it was at all so, 605 would not  to our mind be fatal. The complainant was present with  his  counsel,  the  State  Advocate-General  was  also present. If  there had  been any grievance about the record, they would  have raised an objection. Their non-objection on this point is also an indicator that the record was there or in any  case, the summoning of the record was not thought to be necessary by the parties. B      Assuming for  the sake  of argument,  that  there  were certain irregularities  it the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has been failure of justice, as will be evident from  section 465  of the  Criminal  Procedure  Code which reads:           "465.  Finding  or  sentence  when  reversible  by      reason of __ error, omission or irregularity-           (l)  Subject   to  the  provisions  herein  before      contained .  no finding,  sentence or order passed by a      Court of  competent jurisdiction  shall be  reversed or      altered by  a Court of appeal, confirmation or revision      on account  of any  error, omission  or irregularity in      the complaint,  summons, warrant,  proclamation, order,      judgment or other proceedings before or during trial or      in any inquiry or other proceedings under this Code, or      any error,  or irregularity  in any  sanction  for  the      prosecution, unless  in the  opinion of  that Court,  a      failure of justice has in fact been occasioned thereby.           (2) In  determining whether any error, omission or      irregularity in  any proceeding under this Code, or any      error,  or   irregularity  in   any  sanction  for  the      prosecution has  occasioned a  failure of  justice, the      Court  shall  have  regard  to  the  fact  whether  the      objection could  and should  have  been  raised  at  an      earlier stage in the proceedings."      We have  perused the  judgment of  the High Court which was placed  before us  in full. It shows that each and every aspect of  the matter  has been thoroughly discussed and the High Court  has also  referred to the error committed by the Sessions Judge  in the  approach of  the case  and  also  in making unwarranted assumptions.      on merits  we fully  agree with  the appraisal  of  the evidence made  by the  High Court.  It is  not necessary  to repeat the same 606 over again.  There is  no eye  witness. The fate of the case hinges upon  the circumstantial evidence. The High Court has dealt with  the two  dying declarations, one recorded by the Doctor and  the other  by the  Assistant Sub-Inspector.  The



High Court  also took  into  consideration  the  oral  dying declaration on  which the  prosecution strongly  relied. But even that  declaration does  not implicate  the accused. The reason given  by the High Court for acquittal in our opinion is cogent and plausible.      For the  foregoing discussion,  the criminal appeal and the  special   leave  petition   must  fail   and  they  are accordingly dismissed. S.R.                             Appeal & Petition dismissed 607