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PETITIONER: KAPIL DEO SHUKLA

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 14/10/1957

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. MENON, P. GOVINDA KAPUR, J.L.

CITATION:  1958 AIR  121            1958 SCR  640

ACT:        Jury  trial-Evidence in English-jurors not  knowing  English        well-Whether  trial  void-Prejudice-Memorandum  of   appeal-        Practice of not setting out specific grounds, if Proper-Code        of Criminal Procedure (V of 1898), ss. 418 and 419.

HEADNOTE:        The  appellant was tried by a Sessions judge and a jury  for        offenses  under  ss. 477-A and 408, Indian  Penal  Code.   A        large volume of documentary evidence was in English and  the        statement  of  one of the principal witnesses was  given  in        English.  The main question for decision was the  authorship        of the forged documents.  It was found that the jurors  were        not  well  versed in English and were not in a  position  to        decide  the  main question.  The jury returned  a  unanimous        verdict of not guilty and accepting the verdict the Sessions        judge  acquitted the appellant.  The State appealed  to  the        High Court.  In the memorandum of appeal only one ground was        taken, "that the order of acquittal is against the weight of        evidence on the record and contrary to law." The High  Court        accepted  the  appeal  and  convicted  the  appellant.   The        appellant  contended that the appeal before the  High  Court        was  incompetent as no particular errors of law, upon  which        alone  an  appeal  lay  under  S.  418,  Code  of   Criminal        Procedure, were set out in the memorandum of appeal and that        the  trial in the Session Court was no trial in the  eye  of        law.        641        Held, that a memorandum of appeal is meant to be a  succinct        statement  of the grounds upon which the appellant  proposes        to  support  the  appeal.  The practice  prevailing  in  the        Allahabad  High Court of not taking specific grounds  either        of  law or fact is to be disapproved even assuming  that  s.        419  of  the Code of Criminal Procedure does  not  in  terms        require the setting out of such grounds.        Held  further, that the trial before the Session  judge  was        coram non judice on account of the incompetence of the  jury        to  decide  the  question of the authorship  of  the  forged        documents.   In such a case the question of  prejudice  does        not  arise as it is not a mere irregularity, but a  case  of        "mis-trial."

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      Ras Behari Lal v. The King Emperor, (1933) L.R. 60 I.A.  354        followed.

JUDGMENT:        CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 82  of        1957.        Appeal  by special leave from the judgment and  order  dated        the  12th  August,  1953, of the  Allahabad  High  Court  in        Criminal Appeal No. 114 of 1951 arising out of the  judgment        and  order  dated the 31st July, 1950, of the Court  of  the        Additional Sessions Judge at Allahabad in Criminal  Sessions        Trial No. 22 of 1949.        S.   P. Sinha and B. C. Misra, for the appellant.        G.   C. Mathur and C. P. Lal, for the respondent.        1957.  October 14.  The following Judgment of the Court  was        delivered by        SINHA  J.-This appeal by special leave is  directed  against        the judgment and order dated August 12, 1953, of a  Division        Bench  of  the  Allahabad High Court (Desai  and  Beg  JJ.),        setting  aside the order of acquittal passed by the  learned        Additional Sessions Judge at Allahabad, dated July 31, 1950,        in  Sessions Trial No. 22 of 1949.  The appellant  bad  been        charged under ss. 408 and 477A of the Indian Penal Code, and        tried by jury of 5. The jury returned a unanimous verdict of        not guilty.  The learned Additional Sessions Judge  accepted        the  verdict  of  the jury and acquitted  the  accused.   On        appeal by the Government of Uttar Pradesh, the High Court in        a  judgment  covering about 130 typed pages  set  aside  the        order of acquittal and        642        convicted  the appellant under the sections  aforesaid,  and        sentenced him to rigorous imprisonment for four years and  a        fine of ten thousand rupees, in default of payment,  further        rigorous  imprisonment  for one year, under s.  408,  Indian        Penal  Code,  and to rigorous imprisonment  for  four  years        under   s.  477A,  Indian  Penal  Code,  the  sentences   of        imprisonment  under the two sections to  run  consecutively.        Out  of  the fine, if realized, seven  thousand  rupees  was        directed  to  be  paid  to  the  Imperial  Bank  of   India,        Allahabad, as compensation.  The prayer for a certificate of        fitness for appeal to this Court was refused.  The appellant        moved  this  Court and obtained special leave to  appeal  by        order dated December 15, 1953.        In  the  view we take of the legality of the trial  in  this        case,  it  is not necessary to go into the  details  of  the        prosecution  case  except to state that  the  appellant  was        charged  under the sections aforesaid, for having  committed        criminal  breach of trust in respect of valuable  securities        amounting  to  Rs.  7,410  odd  of  the  Imperial  Bank   at        Allahabad,  while in the employment of the Bank as a  clerk,        and  had  in  that  capacity,  "  with  intent  to  defraud,        destroyed,  altered,  mutilated and falsified  accounts  and        other papers " during January to July, 1946.        A number of contentions were raised before us by the learned        counsel  for the appellants, but it is necessary  to  notice        only  two of them, namely, (1) that the appeal by the  State        of  Uttar Pradesh, to the High Court, should not  have  been        entertained as the memorandum of appeal did not comply  with        the  requirements of law as laid down in ss. 418 and 419  of        the  Code of Criminal Procedure; and (2) that the  trial  in        the  Sessions Court was no trial at all in the eye  of  law.        In respect of the first contention, it is enough to say that        though the memorandum of appeal filed in the High Court  was

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      wholly  inadequate, the defect was not such as to render  it        null  and void so as to entitle the High Court to reject  it        in  liming.   The point arises in this way: Apart  from  the        prayer, the only ground taken in the petition of appeal is "        that  the  order  of  acquittal is  against  the  weight  of        evidence                                 643        on  the  record and contrary to law." The argument  is  that        under  s. 418 of the Criminal Procedure Code, where a  trial        is by jury, "the appeal shall lie on a matter of law only ",        and  as  no  particular  error of law  is  set  out  in  the        memorandum  of  appeal,  the  consequence  of  this  serious        omission,  it  is further contended, is that in the  eye  of        law, this was no petition of appeal at all, which could have        been  entertained  by the High Court.  This  contention  was        raised  before  the  High  Court by  way  of  a  preliminary        objection  to the maintainability of the appeal.   The  High        Court  overruled  that objection on the ground that  s.  419        which  is  the specific provision of the  Code  of  Criminal        Procedure,  relating  to petition of appeal,  only  requires        that it shall be in writing and accompanied by a copy of the        judgment  or order appealed against, and in cases  tried  by        jury,  a copy of the heads of the charge recorded  under  a.        367  of the Code.  The High Court observed that there is  no        provision  in the Code which required that the  petition  of        appeals  should  specify the matters of fact or of  law,  on        which  the appeal is based.  The Court also referred to  the        prevailing  practice  in that Court according  to  which  no        specific  grounds  are  taken  either on  fact  or  on  law.        According to the High Court, there was no difference between        an  appeal  based  on  facts and an  appeal  based  only  on        questions  of law, as in the case of a jury trial.  In  view        of  these  considerations,  the High  Court  held  that  the        preliminary objection was not well-founded in law.        Assuming that the High Court was correct in its appreciation        of  the  legal  position,  even  so,  we  must  express  our        disapproval of any such practice as has been referred to  in        the judgment below.  A memorandum of appeal is meant to be a        succinct  statement of the grounds upon which the  appellant        proposes to support the appeal.  It is a notice to the Court        that such and such specific grounds are proposed to be urged        on  behalf  of  the  appellant, as  also  a  notice  to  the        respondent  that he should be ready to meet  those  specific        grounds.  A memorandum of appeal with a bald ground like the        one  quoted above is of no help to any of the parties or  to        the Court.  It may have the        644        merit of relieving the person responsible for drawing up the        ground of appeal, of applying his mind to the judgment under        appeal and its weak points, but this slight advantage, if it        is so, is very much out-weighed by the serious  disadvantage        to  the parties to the litigation and the Court which is  to        hear  the  appeal.   Such a bald statement  of  the  grounds        leaves  the  door wide open for all  kinds  of  submissions,        thus, tending to waste the time of the Court, and taking the        respondents  by  surprise.   It is  a  notorious  fact  that        courts,  particularly in the part of the country from  where        this  appeal  comes, are over-burdened  with  large  accumu-        lations  of undisposed of cases.  The parties concerned  and        their  legal  advisers should concentrate  and  focus  their        attention  on  the  essential features of  cases  so  as  to        facilitate speedy, and consequently, cheap administration of        justice.  It may be that a bald ground like the one  noticed        above, was responsible for the inordinately long judgment of        the  High  Court.  Such a practice, if any, deserves  to  be

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      discontinued and a more efficient way of drawing up  grounds        of  appeal has to be developed.  If counsel for the  parties        to  a litigation concentrate on the essential features of  a        case,  eliminating  all redundancies, the  argument  becomes        more intelligible and helpful to the Court in focussing  its        attention  on  the important aspects of the  case.   As  the        appeal  succeeds  on the second ground,  as  will  presently        appear, we need not say anything more on the first ground.        The second ground on which, in our opinion, the appeal  must        succeed,  is based on the findings of the High Court  itself        This  case  involved a consideration of a  large  volume  of        documentary  evidence  almost  all  in  English.   The  oral        evidence was directed mainly to connect those documents  and        to  explain their bearing on the charges framed against  the        accused,  of criminal breach of trust and  falsification  of        relevant accounts and entries in the registers maintained by        the Bank.  Mr. Ganguli, prosecution witness No. 26 -Agent of        the  Bank-was  examined  at great length, and  be  gave  his        evidence  on 12 days between October and December, 1949,  It        runs into about 45 typed pages.  This                              645        evidence  appears  to  have been given  by  him  in  English        because  he  put  in an application that he  had  given  the        evidence in English and that he was not in a position to say        whether  the  Hindi version as recorded by  the  deposition-        writer was the correct version, as he was not familiar  with        Hindi.   The High Court had made the following  observations        as   to   the  nature  of  the  case   and   the   requisite        qualifications  of the members of the jury necessary  for  a        proper under. standing of the case:        " We consider that the instant case was not fit to be  tried        by  a  jury at least by any ordinary jury.  It  was  a  very        complicated case in which a mass of documents was  produced.        The  decision of the case rested upon the question  by  whom        the  various  documents  were written  or  prepared.   Those        documents  are  all in English and nobody could  decide  the        case  satisfactorily  unless  he had  a  good  knowledge  of        English  and  was in a position to judge the  writing.   The        offences with which the respondent was charged were under  a        Government  order triable by a jury and the case had  to  be        tried by a jury unless the Government thought fit to  revoke        or alter the order.  The Government did not revoke or  alter        the  order and did not even declare that the case should  be        tried by a special jury under s. 269(2), Criminal  Procedure        Code."        In  our opinion, the remarks of the High Court quoted  above        give a correct impression of the proceedings in the Court of        Session.   It further appears from the judgment of the  High        Court that the learned Advocate General who argued the  case        in support of the appeal on behalf of the State, urged  that        the  jurors were not equal to the task involved in a  proper        determination  of the controversy.  The High Court  directed        the trial court to hold an inquiry and report on this aspect        of the case.  On a consideration of the report submitted  by        that  court,  the  High Court recorded its  finding  to  the        following effect:        "Out  of  the five jurors selected by the  learned  Sessions        Judge,  three  had sufficient knowledge of  English,  fourth        knew very little English and could not        646        read  the documents produced in the case and the fifth  also        had not sufficient knowledge of English; he could understand        a  letter written in English with some difficulty and  could        not  read English newspapers.  This is what we find  from  a        report  made by the learned Sessions Judge  after  summoning

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      the jurors and examining them on a letter issued by us.   We        are  satisfied that the two jurors, Shri Sheik  Ashique  Ali        and  Shri Farman Ali, were not in a position to  decide  the        question    of   authorship   of   the   forged    documents        satisfactorily.   It  was not merely a  question  of  under-        standing the contents of the documents produced in the  case        the  jurors also had to decide whether they were written  or        signed  by  the  respondent as deposed  by  the  prosecution        witnesses   or  not.   They  did  not   possess   sufficient        acquaintance   with   English  to   decide   that   question        satisfactorily."        On that finding, it is clear that the appellant’s contention        that it was a trial coram non judice is well-founded.   This        case is analogous to the case of Ras Behari Lal v. The  King        Emperor (1), which went up to the Judicial Committee of  the        Privy  Council,  from  a judgment of the  Patna  High  Court        confirming  the conviction and the sentences of the  accused        persons  on a charge of murder and rioting.  In  that  case,        the trial was by a jury of 7. The jury by a majority of  six        to  one found the accused guilty.  The learned  trial  judge        accepted  the  verdict  and sentenced some  of  the  accused        persons  to  death.  The High Court  overruled  the  accused        persons’  contentions that there was no legal trial  because        some  of the jury did not know sufficient English to  follow        the  proceedings in Court.  The Judicial  Committee  granted        special  leave to appeal on a report made by the High  Court        that  one of the jurors did not know sufficient  English  to        follow  the  proceedings  in  Court.   Before  the  Judicial        Committee,  it was conceded, and in their  Lordships’  view,        rightly, by counsel for the prosecution that the  appellants        had not been tried, and that, therefore, the convictions and        sentences  could not stand.  Lord Atkin, who  delivered  the        judgment of the Judicial Committee, made the following-        1)   (1933) L.R. 60 I.A. 354, 357.                              647        observations  upon  the concession made by counsel  for  the        respondent:        "  In  their  Lordships’ opinion, this  is  necessarily  the        correct   view.    They  think  that  the  effect   of   the        incompetence  of  a  juror  is to deny  to  the  accused  an        essential part of the protection accorded to him by law  and        that the result of the trial in the present case was a clear        miscarriage  of justice.  They have no doubt that  in  those        circumstances  the  conviction and sentence  should  not  be        allowed to stand."        In  our opinion, the legal position in the instant  case  is        the  same.  It was., however, argued on behalf of the  State        Government that in the instant case, the jury had returned a        unanimous  verdict of not guilty and that, therefore,  there        was  no prejudice to the accused persons.  It is  true  that        the  incompetence  of the jury empanelled in this  case  was        raised  by the counsel for the State Government in the  High        Court  but  in view of the findings arrived at by  the  High        Court,  as quoted above, the position is clear in  law  that        irrespective  of  the  result, it was no trial  at  all  The        question  of  prejudice does not arise because it is  not  a        mere  irregularity.  but  a  case  of  "mis-trial",  as  the        Judicial  Committee  put  it.   It  is  unfortunate  that  a        prosecution which has been pending so long in respect of  an        offence  which is said to have been committed  about  eleven        years  ago, should end like this but it will be open to  the        State  Government, if it is so advised, to take steps for  a        retrial,  as was directed by the Judicial Committee  in  the        reported case referred to above.        The appeal is, accordingly, allowed and the convictions  and

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      the sentences are set aside.  We do not express any  opinion        on the question whether it is a fit case for a de novo trial        by a competent jury or by a Court of Session without a jury,        if the present state of the law permits it.  The matter will        go  back  to the High Court for such directions  as  may  be        necessary  if the High Court is moved by the  Government  in        that behalf.        Appeal allowed.        648