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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: C.   TOBIT AND OTHERS

DATE OF JUDGMENT: 14/02/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA SARKAR, A.K. BOSE, VIVIAN

CITATION:  1958 AIR  414            1958 SCR 1275

ACT: Criminal Procedure-Petition of appeal-If must be accompanied by certified copy of judgment or order appealed against-Code of Criminal Procedure (Act V of 1898), s. 419.

HEADNOTE: The word ’Copy’ occurring in s. 419 Of the Code of  Criminal Procedure  means a certified copy and a petition  of  appeal filed under that section must, therefore, be accompanied  by a certified copy of the judgment or order appealed against. Ram  Lal v. Ghanasham Das, A.I.R. (1923) Lah. 150,  referred to. Firm  Chota  Lal-Amba Parshad v. Firm Basdeo  Mal-Hira  Lal, A.I.R. (1926) Lah. 404, distinguished. Consequently,  where  a  State Government  filed  an  appeal against  an order of acquittal under s. 417 of the  Code  of Criminal  Procedure  with  a  plain  copy  of  the  judgment appealed against and put in a certified copy of it after the period  of limitation prescribed for the appeal had  expired and the High Court dismissed the appeal as time-barred, that order was correct and must be affirmed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 128 of 1955. Appeal  from the judgment and order dated February 8,  1955, of the Allahabad High Court in Government Appeal No. 165  of 1954,  arising out of the judgment and order dated July  24, 1953,  of  the  Court of the Civil  and  Sessions  Judge  at Gorakhpur in Sessions Trial No. 5 of 1953. G.   C. Mathur and C. P. Lal, for the appellant. S.   N. Andley, for the respondents. 1958.  February 14.  The following Judgment of the Court was delivered by DAS  C. J.-The respondents before us were put up  for  trial for  offences under ss. 147, 302, 325 and 326, Indian  Penal Code  read with s. 149 of the same Code.  On July 24,  1953, the  temporary  Civil Sessions Judge,  Gorakhpur,  acquitted

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them, The State of Uttar Pra- 162 1276 desh  apparently  felt  aggrieved  by  this  acquittal   and intended  to  appeal to the High Court under s. 417  of  the Code  of Criminal Procedure.  Under art. 157 of  the  Indian Limitation  Act  an  appeal under the  Code     of  Criminal Procedure from an order of acquittal is required to be filed within six months from the date of the order appealed  from. The  period  of limitation for appealing from the  order  of acquittal  passed  by the Sessions Judge  on  July  24,1953, therefore,  expired on January 24, 1954.  That day  being  a Sunday  the Deputy Government Advocate on January 25,  1954, filed  a.  petition of appeal on behalf of  that  State.   A plain  copy of the judgment sought to be appealed  from  was filed with that petition.  The High Court office immediately made  a note that the copy of the judgment filed along  with the  petition  of appeal did not appear to  be  a  certified copy.   After  the  judicial records of the  case  had  been received  by the High Court, an application for a  certified copy  of the judgment of the trial court was made on  behalf of  the State on February 12, 1954.  The certified copy  was received  by  the  Deputy Government  Advocate  on  February 23,1954  and  he  presented it before  the  High  Court  (in February 25, 1954, when Harish Chandra J. made an order that the certified copy be accepted and that three days’  further time  be granted to the appellant for making an  application under  s. 5 of the Indian Limitation Act for  condoning  the delay  in the filing of the certified copy.  Accordingly  an application  for  the condonation of delay was made  by  the appellant on the same day and that application was  directed to be laid before a Division Bench for necessary orders. The application came up for hearing before a Division  Bench consisting of M. C. Desai and N. U. Beg JJ.  Ai the  hearing of  that  application  learned  counsel  appearing  for  the appellant  urged that as there was, in the circumstances  of this  case,  sufficient cause for not filing  the  certified copy  along with the petition of appeal the delay should  be condoned  and  that, in any event, the filing of  the  plain copy  of  the  judgment of the trial court  along  with  the petition of appeal constituted a sufficient compliance  with the requirements                             1277 of  s.  419  of the Code of Criminal  Procedure.   By  their judgment  delivered  on December 7, 1954, both  the  learned Judges  took  the view that no case had been  made  out  for extending the period of limitation under s. 5 of the  Indian Limitation  Act and  dismissed the  application  and nothing further  need  be said on that point.  The  learned  judges, however,  differed on the question as to whether the  filing of  a  plain  copy  of the  judgment  appealed  from  was  a sufficient  compliance with the law, M. C. Desai J.  holding that it was and N. U. Beg J. taking the contrary view.   The two Judges having differed they directed the case to be laid before  the  Chief  Justice for obtaining  a  third  Judge’s opinion  on  that question.  Raghubar Dayal J. to  whom  the matter was referred, by his judgment dated January 31, 1955, expressed the opinion that the word " copy " in s. 419 meant a certified copy, and directed his opinion to be laid before the  Division  Bench.  In view of the opinion of  the  third Judge, the Division Bench held that the memorandum of appeal had not been accompanied by " a copy " within the meaning of s. 419 and that on February 25, 1954, when a certified  copy came  to  be filed the period of  limitation  for  appealing against the order of acquittal passed on July 24, 1953,  had

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already expired and that as the application for extension of the  period of limitation had been dismissed the appeal  was time barred and they accordingly dismissed the appeal.   The learned  Judges,  however,  by  the  same  order  gave   the appellant  a  certificate that the case was a  fit  one  for appeal to this Court.  Hence this appeal.  Section 419 of the Code of Criminal Procedure, under  which the appeal was filed, provides as follows:- " 419.  Every appeal shall be made in the form of a petition in  writing presented by the appellant or his  pleader,  and every  such petition shall (unless the Court to which it  is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury,  a  copy  of the heads of the  charge  recorded  under section 367. 1278 The  sole  question raised in this appeal  is  whether  this section requires a petition of appeal to be accompanied by a certified  copy of the judgment or order appealed from.   It will be noticed that the section requires " a copy " of  the judgment  to  be filed along with the  petition  of  appeal. There  can be no doubt that the ordinary dictionary  meaning of  the word " copy " is a reproduction or transcription  of an  original  writing.  As the section does not,  in  terms, require  a  certified  copy, it is urged on  behalf  of  the appellant  that  the  word  " copy "  with  reference  to  a document has only one ordinary meaning namely: a  transcript or  reproduction  of the original document  and  that  there being  nothing uncertain or ambiguous about the word "  copy ",  no  question of construction or  interpretation  of  the section  can at all arise.  It is contended that it  is  the duty  of  the  court to apply  its  aforesaid  ordinary  and grammatical meaning to the word " copy " appearing in s. 419 and  that it should be held that the filing of a plain  copy of  the  judgment along with the petition of  appeal  was  a sufficient compliance with the requirements of that section. The  matter, however, does not appear to us to be  quite  so simple.   A  "  copy " may be a plain copy, i.  e.,  an  un- official copy, or a certified copy, i. e., an official copy. If  a  certified  copy of the judgment  is  annexed  to  the petition  of appeal nobody can say that the requirements  of s. 419 have not been complied with, for a certified copy  is none the less a " copy ". That being the position a question of  construction does arise as to whether the word " copy  " used in s. 419 refers to a plain copy or to a certified copy or covers both varieties of copy.  It is well settled that " the  words  of a statute, when there is  doubt  about  their meaning,  are  to be understood in the sense in  which  they beat  harmonise  with the subject of the enactment  and  the object which the Legislature has in view.  Their meaning  is found not so much in a strictly grammatical or  etymological propriety  of language, nor even in its popular use,  as  in the  subject or in the occasion on which they are used,  and the  object to be attained.  " (Maxwell’s Interpretation  of Statutes, 10th Edition,                             1279 page 52).  In order, therefore, to come to a decision as  to the  true  meaning of a word used in a Statute  one  has  to enquire  as to the subject-matter of the enactment  and  the object which the Legislature had in view.  This leads us  to a  consideration  of some of the relevant   sections  of the Code  of  Criminal Procedure and other enactments  having  a material bearing on the question before us. Section  366 of the Code of Criminal Procedure, which is  in Chapter  XXVI headed "Of the Judgment ", requires  that  the

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judgment  in every trial in any criminal court  of  original jurisdiction  shall be pronounced in open court and  in  the language  of  the court.  Section 367  requires  every  such judgment to be written by the presiding officer (or from his dictationtion ) in the language of the court or in  English, containing  the  point  or  points  for  determination,  the decision  thereon  and the reasons for  the  decision.   The judgement  has  to  be dated land signed  by  the  presiding officer in open court.  Except as otherwise provided by law, s. 369 forbids the court, after it has signed its  judgment, from  altering or reviewing the same except to correct  mere clerical  errors.   After  the judgment  is  pronounced  and signed it has, under s. 372, to be filed with the record  of proceedings and becomes a part of the record and remains  in the custody of the officer who is in charge of the  records. Under  s. 371, when an accused is sentenced to death and  an appeal lies from such judgment as of right, the court is  to inform  him  of  the period within which he may,  if  he  so wishes,  prefer  his  appeal and when  he  is  sentenced  to imprisonment  a  copy of the findings and sentence  must  as soon  as may be after the delivery of the judgment be  given to him free of cost without any application.  This, however, is without prejudice to his right to obtain free of cost  on an  application made by him, a " copy " of the  judgment  or order  and  in  trials by jury a " copy " of  the  heads  of charge  to  the  jury.  The copy that  is  supplied  to  the accused under sub-s. (4) of s. 371 is not a full copy of the entire  judgment, but the copies supplied to him under  sub- ss. (1) and (2) of s. 371 on application made by  1280 him  are  full copies of the judgment or the  heads  of  the charge  to  the jury as the case may be.  The  copy  of  the findings’ and the sentence which is supplied to the  accused under  sub-s.  (4)  without   his asking  for  the  same  is presumably  to enable him to decide for himself  whether  he would  appeal against his conviction and the sentence.   The copies, which are supplied to the accused under sub-ss.  (1) and  (2) on his application for such copies,  are  obviously full  copies of the entire judgment or the heads of  charges as the case may be and are intended to enable him to prepare his grounds of appeal should he decide to prefer one and  to file the same along with his petition of appeal as  required by  s. 419 of the Code of Criminal Procedure.  There are  no provisions  corresponding to s. 371 for giving any  copy  of the   judgment  to  the  State  or  the  public   prosecutor representing  the  State  in case of  an  act  uittal.   If, therefore,  the  State  desires to file  an  appeal  against acquittal under s. 417 of the Code of Criminal Procedure the State  will have to -procure a copy of the judgment  or  the heads of charge in order to enable it to file the same along with  its petition of appeal and thereby to comply with  the requirements  of s. 419.  According to s. 74 of  the  Indian Evidence Act a judgment, being the Act or record of the  act of a judicial officer, would be included in the category  of public  documents.   Under s. 548 of the  Code  of  Criminal Procedure if a person affected by a judgment desires to have a copy of the judge’s charge to the jury or of any order  or deposition or other part of the record he has the right,  on applying for such copy, to be furnished therewith.  A person desirous  of such a copy has to apply for it to  the  public officer  having  the custody of it and, under s. 76  of  the Indian  Evidence Act, such public officer is bound to.  give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of  such copy that it is a true copy of such document,  that

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is  to  say, to supply to the applicant what is known  as  a certified copy.  Therefore, whether it is the accused person who applies for a copy under s. 371 , 1281 sub-ss.  (1) and (2) or it is the State which applies for  a copy,  the  copy supplied by the public officer  must  be  a certified  copy.  Then when s. 419 requires that a  copy  of the  judgment or of the heads of charge be filed along  with the petition of appeal, it is not unreasonable to hold  that it is the certified copy so obtained that must be filed. Under  arts. 154, 155 and 157 of the Indian  Limitation  Act the  petition  of  appeal has to be filed  within  the  time specified in those articles.  Obviously it may take a little time  to apply for and procure a certified copy.   In  order that  the  full  period of limitation be  available  to  the intending appellant s. 12 of the Limitation Act permits  the deduction  of the time requisite for obtaining the  copy  of the judgment or the heads of charge in ascertaining  whether the  appeal is filed within time.  A certified copy  of  the judgment  will  on  the face of it show when  the  copy  was applied for, when it was ready for delivery and when it  was actually  delivered and the court may at a glance  ascertain what  time  was requisite for obtaining the copy  so  as  to deduct  the  same  from the computation  of  the  period  of limitation.   Taking all relevant facts into  consideration, namely,  that  a St copy " of the judgment has to  be  filed along  with the petition of appeal, that the copies  of  the judgment  which the accused gets free of cost under  s.  371 (1)  and (2) read with s. 76 of the Indian Evidence Act  and which  the  State can obtain on an application  made  by  it under s. 76 of the last mentioned Act can only be  certified copies, that the time requisite for obtaining such copies is to  be  excluded  from  the computation  of  the  period  of limitation  all quite clearly indicate that the copy  to  be filed with the petition of appeal must be a certified copy. Section  419  requires  a  copy of  the  judgment  or  order appealed against to be filed not without some purpose.  That purpose becomes clear when we pass on to s. 421 of the  Code of  Criminal Procedure.  That section enjoins the court,  on receiving the petition of appeal and copy of the judgment or order  appealed  from under s. 419, to peruse the  same  and after 1282 perusing the same to do one of the two things, namely, if it finds that there is no sufficient ground for interfering, to dismiss  the  appeal summarily or when the  court  does  not dismiss  the appeal summarily, then  under s. 422  to  cause notice  to be given to the appellant or his pleader  and  to such  officer as the Provincial Cxovernment may  appoint  in this behalf, of the time and place at which such appeal will be heard and furnish such officer with a copy of the grounds of  appeal and in a case of appeal under s. 417, as  in  the present  case,  to cause a like notice to be  given  to  the accused.   The  act  of summarily rejecting  the  appeal  or admitting  it and issuing notice is necessarily  a  judicial act  and obviously it must be founded on  proper  materials. The authenticity or correctness of the copy of a judgment is also  essential  in order to enable the appellate  court  to make   interlocutory   orders   which   may   have   serious consequences.   In the case of an appeal by the  accused  he may ask for the stay of the execution of the order, e.g., of the  realisation  of the fine or he may move the  court  for bail.   Likewise in the case of an appeal by the State,  the State may ask for the accused to be apprehended and  brought before  the court under warrant of arrest.  Orders  made  on

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these applications are all judicial acts and accordingly  it is essential that the appellate court in order to take these judicial   decisions  have  proper  materials   before   it. Therefore,  it is of the utmost importance that the copy  to be  filed with the petition of appeal is a full and  correct copy of the judgment or order appealed against.  Under s. 76 of  the  Indian Evidence Act the public officer  who  is  to supply a copy is required to append a certificate in writing at the foot of such copy that it is a true copy and then  to put,  the date and to subscribe the same with his  name  and official  title.  Therefore, the production of  a  certified copy ipso facto and without anything more will show ex facie that  it is a correct copy on which the appellate court  may safely  act.   The fact that the appellate court is  by  law enjoined  to  peruse  the  copy of  the  judgment  and  take judicial  decision on it indicates that it must have  before it a correct copy of -the judgment                             1283 and  this  further indicates that the copy  required  to  be filed  with the petition of appeal under s. 419 should be  a certified  copy which will ipso facto assure  the  appellate court of its correctness. It is said that the appellate court may not summarily reject or  admit the appeal or make an inter’ locutory order  until the  record  is produced or until a certified  copy  of  the judgment or order is presented before it.  There is no doubt that  the  court can under s. 421 of the  Code  of  Criminal Procedure call for the record of the case, but the court  is not  bound to do so.  The calling for the records  in  every case  or  keeping  the  proceedings  in  abeyance  until   a certified  copy  is presented before the court is  bound  to involve  delay  and there is no apparent  reason  why  there should  be  any  delay  in  disposing  of  criminal  matters involving  the  personal liberty of the  convicted  accused. All  this inconvenience may easily be obviated if s. 419  be read and understood to require a certified copy to be  filed along with the petition of appeal. Learned  counsel  for the appellant urges that  in  case  of urgency  the  court need not wait until the  record  or  the certified copy is received, but may call upon the  appellant to adduce evidence to prove the correctness of the  judgment in  order  to  induce the court to act upon it  and  take  a judicial  decision thereon.  In the first place there is  no such procedure envisaged in the Code of Criminal  Procedure. In  the  next place adoption of such a procedure  may  cause much  delay  and in the third place no  question  ordinarily arises  under  s.  419 of proving  the  correctness  of  the judgment  under appeal in the way in which a document is  to be  proved  in order to tender it in evidence in  the  case. But  assuming  that the correctness of  the  judgment  under appeal is to be established then as soon as the appellant is out  to " prove" by oral evidence of witnesses the  contents of the original judgment so as to establish the  correctness of  the plain copy filed along with his petition  of  appeal the question will immediately arise whether such evidence is admissible  under the law.  As already stated s. 367 of  the Code of Criminal Procedure requires the judgment to be 163 1284 reduced  to writing.  Section 91 of the Indian Evidence  Act provides, inter alia, that in all cases in which any  matter is required by law to be reduced to the form of a  document- and  a judgment is so required,,no evidence shall  be  given for  the  proof  of  the terms of  such  matter  except  the document  itself  or secondary evidence of its  contents  in

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cases  in which secondary evidence is admissible  under  the earlier  provisions  of  that Act.  In the  absence  of  the production  of,  the original judgment if a witness  is  put into  a  witness box and is asked to say  whether  the  copy produced before the appellate court is a correct copy of the original judgment filed of record in the trial court he will necessarily  have to say that he read the original  judgment and  from  his  memory he can say that  the  copy  correctly reproduces  the text of the original judgment.   This  means that  he will give secondary evidence as to the contents  of the original judgment which under the law is required to  be reduced to the form of a document.  A further question will, therefore,  arise  if  such  evidence,  which  at  best   is secondary evidence, is admissible under the Indian  Evidence Act.  As already stated the judgment, which under s. 367  of the  Code  of Criminal Procedure has to be  in  writing  and under  s.  372  has  to be filed  with  the  record  of  the proceedings,  becomes,  under s. 74 of the  Indian  Evidence Act,  a  public  document.’ As the original  judgment  is  a public  document  within  the  meaning  of  s.  74,  only  a certified  copy  of  such  document and  no  other  kind  of secondary   evidence  is  admissible  under  S.  65.    This circumstance also indicates that the word " copy " in s. 419 means,  in the context, a certified copy and so it was  held in  Ram  Lat  v. Ghanasham Das (1).  The  decision  in  Firm Chhota  LalAmba  Parshad v. Firm Basdeo  Mal-Hira  Lal  (2), proceeded on its peculiar facts, namely , that no  certified copy could be obtained as the original judgment could not be traced  in the record and the decision can be  supported  on the  ground  that  the  court  had,  in  the  circumstances, dispensed with the production of a certified copy. (i) A.I.R. (1923)Lab. 150.   (2) A.I.R. (1926) Lah. 404.                             1285 Learned  counsel for the appellant next urges that the  fact that the appellate court to which the petition of appeal  is presented  is given power to dispense with the filing  of  a copy  of  the judgment appealed against indicates  that  the Legislature did not consider the c. filing of the copy to be essential  and  that  if  the filing  of  the  copy  is  not essential  and  copy can be wholly dispensed with,  a  plain copy  should be sufficient for the purpose of s. 419.   This power of dispensation had to be given to the court for  very good  reasons.   In  certain  cases  an  order  staying  the operation  of  the order sought to be appealed from  may  be immediately  necessary and the matter may be so urgent  that it  cannot brook the delay which will inevitably occur if  a certified copy of the judgment or order has to be  obtained. In  some cases it may be that a certified copy of  the  same judgment is already before the same court in an analogous or connected appeal and the filing of another certified copy of that  very  judgment may be an unnecessary  formality.   The circumstance  that the court may, in urgent cases,  dispense with  the  filing of a copy does not imply that  in  a  case where  the  court does not think fit to do so it  should  be content  with  a plain copy of the document which  ex  facie contains no guarantee as to its correctness. Reference has been made to a number of sections of the  Code of Criminal Procedure where the word " copy " has been  used and  to  ss. 425, 428, 442 and 511 which, it is  said,  talk about certified copy and on this circumstance is founded the argument   that  where  the  Legislature  insists   on   the production of a certified copy it says so expressly and that as  the word "copy" used in s. 419 is not qualified  by  the word  " certified " the inference is irresistible  that  the filing of a plain copy was intended to be sufficient for the

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purpose of that section.  Turning to the four last mentioned sections,  it will be noticed that the first three  sections 425,  428 and 442 do not really refer to any certified  copy of any document at all.  Section 425 requires that  whenever a case is decided on appeal by the High Court under  Chapter XXXI it shall certify its judgment or order to the court  by which the finding, sentence or 1286 order  appealed against was recorded or passed.   It  really means  that  the High Court is to formally  communicate  its decision  on the appeal to the court against whose  decision the  appeal  had been taken.  Likewise s. 428 requires  the court taking additional evidence to certify such evidence to the appellate court.  Section 442 requires the High Court to certify  its decision on revision to the court by which  the finding,  sentence or order revised was recorded or  passed. Lastly  s.  511 lays down the mode of proof  of  a  previous conviction  or  acquittal, namely, by the production  of  an extract  certified under the hand of the officer having  the custody  of  the records of the court to be a  copy  of  the sentence  or order.  Therefore, the four sections relied  on do  not in reality refer to certified copy of a judgment  or order  supplied to a party on his application for such  copy and  consosuently no argument such as has been sought to  be raised  is maintainable.  The question whether a copy  in  a particular  section means a plain copy or a  certified  copy must  depend on the subject or context in which the  word  " copy " is used in such section.  In many sections relied on, the  " copy " is intended to serve only as a notice  to  the person  concerned  or the public and is not intended  to  be acted  upon by a court for the purpose of making a  judicial order  thereon.  We think that N. U. Beg J. rightly  pointed out  that  the  object  and purpose  of  such  sections  are distinguishable  from  those  of s. 419 where  the  copy  is intended  to  be acted upon by the appellate court  for  the purpose of founding its judicial decision on it.  We do  not consider it desirable on the present occasion to express any opinion  as  to  whether any of  those  sections  relied  on requires a plain copy or a certified copy.  It will  suffice for  us to hold that so far as s. 419 is  concerned,  having regard  to the context and the purpose of that section,  the copy to be filed along with the petition of appeal must be a certified copy. We  have also been referred to several sections of the  Code of  Civil Procedure where the word " copy " is used.  We  do not consider it right to enter upon a 1287 discussion as to the true interpretation of the word " copy" occurring  in any of those sections for we think  that  each section  in each Act must, for its true meaning and  effect, depend on its own language, context and setting. In  the result, for reasons stated above, we agree that  the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed. Appeal dismissed.