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PETITIONER: MANSOOR & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT06/05/1971

BENCH: DUA, I.D. BENCH: DUA, I.D. BHARGAVA, VISHISHTHA

CITATION:  1971 AIR 1977            1971 SCR  731  1971 SCC  (2) 369

ACT: Code of Criminal Procedure, 1898, s. 4(1) (t), 492,  417(3)- Presentation  of appeal in High Court against  acquittal  of accused-Additional Government Advocate when appointed Public Prosecutor  can  present appeal-Such appeal is a  ’case’  in which the Public Prosecutor is entitled to act-Power of High Court in hearing appeal against acquittal-Principles. Constitution of India, Art. 136-Scope of arguments in appeal by special leave.

HEADNOTE: The  appellants were charged along with five others for  the offences  of  murder and attempt to  murder.   Five  accused persons  were  acquitted  by the trial  court  Four  of  the appellants were convicted by the trial court, the conviction being  upheld  by the High Court.  The fifth  appellant  was acquitted by the trial court but convicted by the High Court in  an appeal by the State.  In appeal by special  leave  it was contended before this Court; (i) that the conviction  of the appellants could not be sustained on the evidence;  (ii) that  the High Court in reversing the judgment of  acquittal by  the  trial court against one of the appellants  had  not followed  the principles laid down by this Court; and  (iii) that  the Additional Government Advocate was not  authorised to  present the appeal against acquittal in the  High  Court because such appeal was not a ’case. HELD:     (i) Under Art. 136 of the Constitution this  Court does  not normally re-appraise the evidence for  considering the  credibility  of  the witnesses.  Unless  the  trial  is vitiated by some illegality or irregularity of procedures or their  is  some violation of the rules  of  natural  justice resulting  in  unfair  trial, or  unless  the  judgment  has resulted  in gross miscarriage of justice, this  Court  does not as a rule proceed to evaluate the evidence for coming to its own independent conclusion.  No such infirmity had  been made  out  by the appellants’ counsel in the  present  case. [736 F] (ii) The appellants counsel was also unable to show that the High  Court  in reversing the judgment of  the  trial  court against  one  of the appellants had failed  to  observe  the principles laid down by this Court. [737 H] Samwat  Singh & Ors. v State of Rajasthan, [1961]  3  S.C.R.

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120, Keshav Ganga Ram Navaga & Anr. v. State of Maharashtra, Cr.  A. No. 100/68 dt. 3-2-1971, Shea Swarup V. King Emperor (1934)  L.R.  61  I.A.  398 and  Laxman  Kalu  v.  State  of Maharashtra A.I.R. 1968 S.C. 1390, referred to. (iii)  The Additional Government Advocate who presented  the appeal againstacquittal  in the High Court was notified  as Public Prosecutor for the HighCourt in respect of cases arising in the State of Madhya Pradesh.  The case  resulting inthe acquittal of the accused persons would clearly be a case  arising in the state and within the  contemplation  of the  notification.   Reading  s.  4(1)(t)  Cr.   P.C.  which defines ’public prosecutor’     together 732 with  s. 492 Cr.  P. C. under which the State Government  is empowered  to  appoint Public  Prosecutors,  the  Additional ’Government Advocate when appointed’ as a Public  Prosecutor for the High Court in respect of cases arising in the  State of  Madhya  Pradesh must be held to be a  Public  Prosecutor lawfully  empowered  to present appeals in  the  High  Court against’ orders of acquittal. [740 C] Bhimappa   Basappa  Bhu  Sannayar  v.   Laxman   Shivrayappa Samagouda  & Ors.  A.I.R. 1970 S.C. 1153 and Bhagwan Das  v. The King, A.I.R. 1949 P.C 263, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeals Nos.  30 and 31 of 1967. Appeals  by special leave from the judgment and order  dated April  21,  1966 of the Madhya Pradesh  High  Court,  Indore Bench in Criminal Appeals Nos. 248 and 313 of 1965. Nur-ud-din Ahmed, C.L. Sareen, J. C. Talwar and R. L.  Kohli for the appellants (in Cr.  A. No. 30 of 1967). I. N. Shroff, for the appellant (in Cr.  A. No. 31 of 1967). Nur-ud-din Ahmed, C. L. Sareen, S. K. Mehta and K. L. Mehta, for  respondents  Nos. 1 to 4 and 9 (in Cr.  A.  No.  31  of 1967). The Judgment of the Court was delivered by Dua,  J.-These  are two appeals by special  leave.   In  one appeal,  Mansoor,  Rashid,  Ishaq,  Yunus  and  Mehmood  s/o Bhondekhan are the appellants and in the other the State has appealed against the acquittal of Ajimkhan, Hakimkhan,  Mah- moodkhan s/o Dilawarkhan, Gabbu and Mehmood s/o  Bhondekhan. All the ten accused, namely, Mansoor s/o Bhondekhan,  Rashid s/o  Allabeli, Ishaq s/o Wali Mohammad, Yunus  s/o  Mohammed Hussain,  Ajimkhan  s/o Wariskhan, Hakimkhan  s/o  Anaskhan, Mahmoodkhan  s/o  Dilawarkhan, Gabbu  s/o  Mohammad  Sharif, Mahmood  s/o  Bhondekhan  and  Makku  s/o  Bhondekhan,  were charged and tried by Additional Sessions Judge, indore,  for offences  under  ss.  302/34, 302/149,  307/34  and  307/149 I.P.C.  Out  of  them 8  accused  persons,  namely  Mansoor, Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan, Mahmoodkhan s / o Dilawarkhan  and Mehmood s / o Bhondekhan, were in  addition charged under ss. 302, 307 and 148 I.P.C. All these  charges relate  to the murder of one Karamat Beg Pahalwan s/o  Mirza Karim  Beg at Bombay Bazar Choraha on January 19,  1965,  at about 12-30 P.M. and to an attempt on the life of Ikbal  Beg s/o  the deceased Karamat Beg Pahalwan at the same time  and place. The  Trial Court convicted Mansoor, Rashid, Ishaq and  Yunus and  acquitted  the rest giving them benefit of  doubt.   In regard to Gabbu it was observed that he had not been shown 733 to  be  in possession of any Weapon of offence and  that  it

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could  not be said that he had any. knowledge of the  object of  the  members  of  the party led  by  Mansoor.   He  was, therefore,  held  not to be member of  this  assembly.   ’No other case was sought to be made out against him. Each of the three injuries (Nos. 2, 3 & 9) inflicted on  the deceased  Karamat  Beg were held by the Trial  Court  to  be individually sufficient in the ordinary course of nature  to cause  Karamat’s death.  But as none of the accused  persons were  proved beyond doubt to have inflicted  any  particular fatal injury to the deceased, they were all convicted  under s.  302 read with s. 34 I.P.C For coming to the  finding  of common intention, reliance was placed on Mathurala Adi Reddy v. The State of Hyderabad. (1) The injury inflicted on lkbal Beg  was  imputed to Mansoor, but this injury  was  held  to constitute  an offence only under s. 324 I.P.C. As  all  the four  accused  had  joined  in  this  assault  with   common intention they were all convicted under s. 324 read with  s. 34 I.P.C. Under s. 302 / 34 I.P.C. all the four accused were sentenced  to  imprisonment  for life and  under  s.  324/34 I.P.C.  they  were  sentenced  to  6  months  rigorous   im- prisonment. The  convicted  persons appealed to the High  Court  against their  conviction, and the State appealed against  acquittal of the others.  The State also presented a revision petition for enhancement of the sentences imposed on those convicted. The  High  Court upheld the conviction of  Mansoor,  Rashid, Ishaq and Yunus and dismissed their appeal.  It allowed  the State  appeal  only  against the acquittal  of  Mehmood  s/o Bhondekhan  and  convicted  him  along  with  four   persons convicted  by  the  Trial Court.  The result  was  that  the charges under s. 148 I.P.C. and s. 302/149 I.P.C. were  also held proved against all the five convicted accused  persons. This  charge was held established in addition to the  charge under s. 302/34 I.P.C. Similarly with respect to the  injury inflicted  on Ikbal Beg, the charge under s. 324/149  I.P.C. was   held  proved.   In  the  final  result,  Mehmood   s/o Bhondekhan along with the four accused persons convicted  by the  Trial Court were all held guilty of offences  under  s. 302/34  I.P.C.,  s. 302/149 I.P.C. and s.  148  I.P.C.  With respect  to  the injuries inflicted on Ikbal  Beg  also  all these five persons were held guilty of offences under s. 324 read  with  ss.  34 and 149 I.P.C.  The  sentence  for  this offence was maintained, but they were in addition  sentenced under  s.  148 I.P.C. to one year’s  rigorous  imprisonment. The High Court did not find any cogent ground for  enhancing the sentence of life imprisonment to that (1)  A.I.R. 1956 S.C. 177. 734 of  death  for  the offence under S. 302 read  with  Ss.  34 and .149 I.P.C. The revision was accordingly dismissed. In  this Court again there are two appeals-one by  the  five accused  convicted by the High Court, and the other  by  the State  against the acquittal of the remaining  five  accused persons.   In the appeal by the State the sentence for  life imprisonment  has  been  stated to  be  inadequate  for  the gruesome murder in broad day-light.  Both these appeals have been presented in this Court by special leave under Art. 136 of the Constitution.  They were first heard by us on  August 27 & 28 and September 22, 1970.  It appears from the  record that  the accused persons had not filed any list of  defence witnesses in the Court of Committing Magistrate.  A list  of 13  witnesses  was,  however,  filed in  the  Court  of  the Additional Sessions Judge and summons were issued with  res- pect  to  those  witnesses.  On the  day  when  the  defence witnesses were to be examined they were not present with the

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result that the Trial Court declined further adjournment for their  production.   At the time of arguments in  the  Trial Court  the  question  of prejudice to  the  accused  persons because  of  the  refusal  to  grant  adjournment  for   the production  of the defence witnesses was raised,  but  the Court  did not consider that any prejudice had  resulted  to the  accused persons who wanted to examine them.   From  the record  we find that only Mansoor.  Mehmood s/o  Bhondekhan, Mahmoodkhan s/o Dilawarkhan, Hakimkhan and Ajimkhan  desired to examine defence witnesses.  The other accused persons had declined to examine any witness in defence.  Out of the list of 13 witnesses Shri Bonge the hand-writing expert was given up.   The circumstances in which the defence witnesses  were disallowed by the Trial Court are that on June 10, 1965, the accused  persons  were  called  upon  to  enter  upon  their defence.   It was found that none of the  defence  witnesses were present in the Court on that day.  It also appears that the plea in support of which the witnesses, except witnesses Nos.  9 & 13, were sought to be examined was one  of  alibi. The  Trial Court granted an adjournment only for one day  to enable  the accused persons to secure the attendance of  the witnesses on June 11, 1965.  On that day, two witnesses were reported  to  be  out of station and  with  respect  to  one witness  it  was reported that there was no person  of  that name  at the address which had been taken from the  list  of defence witnesses furnished by the accused.  The summons to Munshi had not been received back.  The defence was, in  the circumstances, closed. After  Shri Nuruddin had addressed us on this grievance,  we asked  him  if he at this stage considered it  necessary  to examine  the  witnesses in defence.   The  learned  counsel, after  consulting  his clients and considering  the  matter, stated in the Court that 735 he  was not interested in producing any defence evidence  at this   late  stage.   Arguments  were  then  continued   and practically at ;the close of the arguments Shri Nuruddin  on reconsideration  of ’the matter expressed his desire  to  be permitted to produce defence ,evidence.  We accordingly made an order on September 22, 1970 directing the Trial Court to permit  the accused persons to examine 10  witnesses.   This request,  though  belated, was allowed in the  interests  of justice.   In  the Trial Court, however,  only  one  witness Munshi  Khan s/o Kasam was examined in  defence.   According to th is witness he had gone to the Trial Court on June  16, 1965  .but was informed by some clerk or peon that the  case had  already  been  decided : thereupon  he  returned  home. According :to his evidence about 5 or 6 years ago during the days  when ,the incident in question took place  his  mother was  ill  and had been admitted in the M.Y.  Hospital.   The incident in question had, according to him, taken place  in Bombay  Bazar  near Agra Hotel.  The witness used  to  visit Mehrabkhan  Patel  who had a milk shop in Bombay  Bazar  and indeed he used to steep at Mehrabkhan’s place.  At about  12 noon on the date of the incident the witness and  Chhotekhan were  talking to each other near Agra .Hotel when  they  saw Karamat Pahalwan coming from Mochipura side uttering  abuses to  Ishaq  and  Mansoor.  Mansoor was  also seen  standing opposite Agra Hotel.  Karamat Pahalwan saying that Mansoor’s servants  had  started  thinking  too  much  of  them-selves because  of incitement from their master rushed  at  Mansoor with  a  stick measuring 2 or 2-1/4 ft. in length and  1  or 11/2 inches thick.  Karamat gave a blow to Mansoor with  the stick  hitting him on the head.  Mansoor  started  bleeding. Chhotekhan  took  Mansoor  on  his  bicycle  to  the  police

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station.  A big crowd ,collected there but the witness  went away.   This  is  all  that  this  ,witness  stated  in  his examination-in-chief.  In cross-examination he said that  he could  not remember the date of the incident and :also  that he  did  not  know whether Chhotekhan  was  alive  or  dead. According  to him none of the accused present in  the  Court were present at the scene of the occurrence except  Mansoor. The  witness remained in the M.Y. Hospital for  about  eight days ’in connection with his mother’s treatment.  He  denied that Ikbal s/o Karamat had any stick in his hand or that  he gave  any blow to Mansoor.  This evidence seems to us to  be wholly  unimpressive  ,and  does not call  for  any  serious consideration or comment. When  these appeals came up for hearing before us  with  the remand  report  of  the Trial Court and the  record  of  the defence evidence,  Shri C. L. Sareen the  learned  counsel appearing  in  ,support  of  the  appeal  by  the  convicted appellants  again  took us through the relevant  record  and addressed  arguments  challenging :-the  conviction  of  the appellants.   After reading the testimony of  Munshikhan  he made a faint attempt to persuade us to accept 736 his  evidence, but realising the futility of this venture he soon   gave  up  the  attempt.    His  main   and   principal contention, how-ever, was that the witnesses whose  evidence was not relied upon, by the Trial Court with respect to  the presence  of the five accused persons, whose  acquittal  was upheld by the High Court, should not have been believed  for convicting  the  present  appellants.  In  support  of  this contention he took us through the evidence of Iqbal Beg s  / o  the  deceased  (P.W.  1) and submitted  that  he  was  an interested witness and his evidence was unbelievable because his  testimony  did not tally with the evidence  of  Narayan singh  P.W. 25 who had prepared the site plan.  The  counsel also referred to certain portions of the statements of Ahmed Khan P.W. 2, Mohammad Shafi P.W. 3, Ismail P.W. 6, Dr. B. N. Chatterjee,  P.W.  10, Shitlaprasad P.W. 24  and  Abdulkadar P.W. 29 for the purpose of persuading us to hold that  their evidence  is  not worthy of credance.  His attack  was  also directed to the First Information Report.  According to  him the F.I.R. lodged by Ikbal Beg was not in reality the  first information  in point of time, because the information  with regard  to this incident had already been made  by  Mansoor. We  are  wholly unable to agree with the  counsel  that  the information lodged by Ikbal Beg was. not the F.I.R. and that Mansoor had made the report earlier.  The case diary of  the police was also subjected to some criticism for the  purpose of discrediting the investigation. All  these  arguments which the learned counsel  has  taken, pains  to  advance are misconceived in this  Court  for  the simpler reason that under Art. 136 of the Constitution  this Court  does  not  normally  re-appraise  the  evidence   for considering  the credibility of the witnesses as if it is  a court  of  first  appeal.   Unless  the  criminal  trial  is vitiated  by some illegality or irregularly of procedure  or there  is  some violation of the rules  of  natural  justice resulting  in  unfair  trial, or  unless  the  judgment  has resulted  in gross miscarriage of justice, this  Court  does not  as a ruler proceed to evaluate the evidence for  coming to  its own independent conclusion.  No such  infirmity  has been made out by the appellants’ learned counsel. We  may  briefly state the broad essential features  of  the prosecution  story as narrated by the eye witnesses  and  as accepted  by the High Court.  Mansoor has  employed  accused Ishaq, Yunus and Gabbu.  Rashid is a friend of Mansoor since

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childhood.   Accused Mahmoodkhan s/o  Dilawarkhan,  Ajimkhan and   Hakimkhan  are  three  Pathans  who  usually   visited Mansoor’s shop.  They are stated to indulge together in  the nefarious trade of smuggling opium.  Karamat Beg and his son Ikbal  Beg  are opposed to Mansoor’s party.   Indeed  there have  been  incessant  quarrels between  the  two  factions. Mansoor’s servants often used to act 737 in offensive and provocative manner towards Karamat and  his son.  As a result of fresh trouble about a couple of  months prior  to the present occurrence, proceedings under  S.  107 Cr.   P.C.  were  also initiated between  the  parties.   On January 19, 1965, Karamat started from Taj Laundry at  about noon time for going to his house with some guava fruit and a bottle.   Those were Ramzan days.  He was  proceeding  along Jawahar  Marg and as he turned towards Bombay Bazar he  met’ Ishaq and Yunus Ishaq spot at Karamat which infuriated  him. In  his younger days Karamat used to be known as a  renowned wrestler.   Ishaq  ran  away followed  by  Karamat  who  was shouting  at  Ishaq.   When  they  reached  near  the  Grand National  Bakery  they  saw  Mansoor  there.   On  Karamat’s complaint about misbehaviour of Mansoor’s servants,  Mansoor retorted  that  the matter should be settled  once  for  all right then. lkbal hearing his father’s shouts also  followed him.  In response to Karamat’s enquiry as to what was to  be settled,  Mansoor  directed his servants to start  the  job. Rashid  than assaulted Karamat with a knife.   Mansoor  also suggested that Karamat’s veins should be cut off.  Ikbal who had  also  reached there snatched a stick from a  faqir  who happened  to be closely and tried to save his  father.   But before  he could intervene Mansoor had given one knife  blow to Karamat on his neck and another on his chest.  Yunus  and Ishaq also started grappling with Karamat. lkbal gave  stick blows  to  them.  On this Mansoor asked Rashid  to  cut  off lkbal’s  veins  and he himself also aimed a  knife  blow  at lkbal  but the blow missed the mark. lkbal in  the  meantime slipped  away but not before Ishaq had caused him an  injury on his left hand.  Mehmood also gave a blow on lkbal’s  left arm.   Karamat who was given further blows by the  party  of Mansoor  became  unconscious.  lkbal straight  went  to  the police station and lodged the report.  These broad features. of  the  prosecution version as given by the  eye  witnesses were, accepted by the High Court and since it was a case  of party factions the evidance was sifted by both the Courts to see that if there was some element of doubt with respect  to any  individual  accused  person  he  should  be  given  its benefit. Mr.  Sarin  next  submitted  that the  High  Court  had  not followed  the standard laid down by this Court  for  dealing with  the appeals against acquittal and in support  of  this submission  he  relied  on the decisions of  this  Court  in Sanwat  Singh  & others v. State of Rajasthan(’) and  on  an unreported judgment of this Court in Keshav Ganga Rain Navge &  Anr  v. State of Maharashtra(2).  In  our  opinion,  this submission  is  wholly unfounded.  The High  Court  did  not ignore the standard laid down by this (1)  [1961] 3 S.C.R. 120. (2)  Cr. A. No. 100 of 1968 decided on February 3, 1971. 47-1 S.C. India/71 738 Court in Sanwat Singh’s case(1).  According to that decision the  words "substantial and compelling reasons" for  setting aside  an  order of acquittal used in this  Court’s  earlier decisions are intended to convey the idea that an  appellate court  shall not only bear in mind the principles laid  down

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by the Privy Council in Sheo Swarup v. King Emperor,(2)  but must  also  give  its  clear  reasons  for  coming  to   the conclusion  that the order of acquittal was wrong.   In  the case before us the High Court has kept these observations in view when dealing with the acquittal appeal. In Keshav Ganga Ram  Navge’s  case(3)  the  Additional  Sessions  Judge  had disbelieved the evidence of the eye witnesses, who according to  him,  had  spoken about the incident  in  a  parrot-like manner.  The three dying declarations were also rejected  by the Trial Court and the other evidence was also held untrust worthy.   The  High Court on appeal  against  the  acquittal relied on two out of the three dying declarations and  while dealing  with  the  evidence of the eye  witnesses  did  not consider  the  discrepancies  and  improbabilities  of   the version given by those witnesses as pointed out by the Trial Court.   The  Court quoted with approval  some  observations made  in Laxman Kalu v. State of Maharashtra(4) in which  it was  said  that the powers of the High Court  in  an  appeal against  acquittal are not different from the powers of  the same Court in hearing an appeal against conviction, but  the High  Court in reversing the judgment of the Sessions  Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view  of the matter.  The High Court in the case before  us, in  our  opinion  did not  go  against  these  observations. Indeed  the appellants’ learned counsel was unable  to  show how  the High Court had ignored the principles laid down  by this Court in the decisions cited while dealing with appeals against acquittal.  In Sanwat Singh’s case(1), it is  worth- noting, this Court had dismissed the appeal and had made the following observations with regard to the exercise of  power of  this Court under Art. 136 of the Constitution.   It  was said there :               "Article  136  of the Constitution  confers  a               wide  discretionary  power on  this  Court  to               entertain   appeals  in  suitable  cases   not               otherwise  provided for by  the  Constitution.               It  is implicit in the reserve power  that  it               cannot  be exhaustively defined,  but  decided               cases  do not permit interference  unless  "by               disregard  to  the forms of legal  process  or               some violation of the principles of natural               (I) [1961] 3 S. C. R. 120.               (2)   (1934) L.R. 61 I.A. 398.               (3)   Cr. A. No. 130 of 1968 decided. on  Feb.               3, 1961.               (4)   A.I.R. 1968 S.C. 1390. 739               justice  or otherwise, substantial  and  grave               injustice has been done".  Though Art. 136  is               couched in widest terms, the practice of  this               Court is not to interfere on questions of fact               except  in exceptional cases when the  finding               is  such that it shocks the conscience of  the               court.   In the present case, the  High  Court               has not contravened any of the principles laid               down  in Sheo Swarup’s case (1) and has-  also               given  reasons which led it to hold that  ,the               acquittal   was   not   justified.    In   the               circumstances,  no case has been made out  for               our not accepting the said findings." In  the present case we further find that Mahmood,  who  was convicted  on appeal against acquittal has since served  out his  sentence  and  is  no  longer  in  jail.   The  counsel

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contended that if Mahmood’s conviction were to be set  aside then  there would be no justification for applying  ss.  148 and  149  I.P.C.  We are ,not persuaded  to  hold  that  the judgment  of the High Court suffers from any such  grave  or serious  error  as would justify our interference  with  the order  convicting Mahmood.  The High Court  considered  the evidence  and  came to its own conclusion.  No  legal  error suggesting  miscarriage of justice has been pointed ,out  by the   learned  counsel.   The  conviction  of  the   present appellants, it may be pointed out, is also under s. 302 read with  S. 34 I.P.C. and this conviction would, in any  event, be unassailable even though s. 148 I.P.C. is not  attracted. We,  however, do not accept the contention that Mahmood  was wrongly convicted and S. 148 I.P.C. is not attracted. Finally  the counsel laid stress on the submission that  the ,appeal  in  the  High Court  was  incompetent  because  the Additional Government Advocate who had presented the  appeal was not ,the Public Prosecutor.  The Gazette Notification to which our attention has been drawn shows that Mr. Dubey, the Additional  Government  Advocate,  was  notified  as  Public Prosecutor  for  the  High Court in  respect  of  the  cases arising in the State of Madhya Pradesh.  The counsel  raised an  ingenious argument, namely, that Mr. Dubey could not  be considered to be a Public Prosecutor for presenting  appeals in  the High Court against orders of acquittal, because  the appeal could not be described as a case, which arose in  the High  Court  in which eventuality alone, he would act  as  a Public Prosecutor.  The argument has merely to be stated  to be  rejected.   The  counsel tried to seek  support  from  a decision  of this Court reported as Bhiniappa  Bassappa  Bhu Sannavat  v. Laxman Shivrayappa Samagouda and others.(1)  In this decision it was said that the word "case" which is not (1) (1934) L. R. 61 I.A. 398.  (2) A.I.R. 1970 S.C. 1153. 740 defined by the Code of Criminal Procedure is well understood in  legal circles and it ordinarily means a  proceeding  for the  prosecution  of a person alleged to have  committed  an offence.  It was added that in other contexts this word may represent other kinds of proceedings. ]But in the context of S. 417(3) the Court said) it must mean a proceeding which at the   end  results  either  in  discharge,  conviction,   or acquittal of an accused person.  If anything, this  decision goes against the appellants’ contention.  The case resulting in  the acquittal of the accused persons would clearly be  a case  arising in the State and within the  contemplation  of the  notification, and the Additional  Government  Advocate. who  is  the Public Prosecutor for the High Court  would  be entitled  to present the appeal in such a case.  Reading  s. 4(1)(i)   Cr.   P.C.,  which  defines  "Public   Prosecutor" together  with  s.  492  Cr.  P.C.  under  which  the  State Government  is empowered to appoint Public Prosecutors,  the Additional  Government Advocate when appointed as  a  Public Prosecutor  for  the  High Court in  respect  of  the  cases arising in the State of Madhya Pradesh must, in our opinion, be  held  to be a Public Prosecutor  lawfully  empowered  to present  the  appeals in the High Court  against  orders  of acquittal.   The Privy Council decision reported as  Bhagwan Das v. The King(’) cited by Shri Sarin also goes against his contention.   It is further note-worthy that this  objection was not raised in the High Court.  We are, therefore, unable to sustain the submission that the appeal against the  order of acquittal was filed in the High Court by an  unauthorised person. The   appeal  on  behalf  of  the  accused   persons   must, therefore., fail.

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Mr.  Shroff  rightly  did  not  press  the  appeal   against acquittal  of the five accused persons, which was  based  on the concurrent order by both the courts below.  In regard to Mahmood also, who having served out his sentence has already been  released,  he did not seriously press his  appeal  for enhancement  of sentences.  Otherwise too, in regard to  the prayer for enhancement of the sentences, we do not find  any cogent  grounds  for differing with the order  of  the  High Court. In-the   final  result,  both  the  appeals  fail  and   are dismissed. G. C.                             Appeals dismissed. (1) A.I.R. 1949 P.C. 263. 741