State of Gujarat v. Ramprakash P. Puri and Ors.

Daa, J. These two criminal appeals (Nos. 60 and 63 of 1965) -W:ith certificate raise a common question and are, therefore, being -disposed of by a common judgment. The Gujarat High Court also recorded the main judgment only in Criminal Appeal No. 60 of 1%~

• The ques1ion which arises for determination is whether, where several accused persons jointly tried have been acquitted by the trial Court, the State can prefer one appeal against the acquittal of all of them. The High Court held such a joinb appeal not to be maintainable under Cr. P.C. and so holding rejected the appeal by the State without going into the merits. The Division Bench of the High Coun speaking through Raju, J. recorded a very lengthy order though the reasoning in support of the non-mai~tainability of the joint appeal is confined to a couple of pages only. The High Court in its order referred to ss. 258, 410, 417, 419 and 423 of the Code and came to the conclusion that the scheme of Chapter XXXl of the Code as disclosed by these sections and particularly by s. 419 is against the maintainability of a joint appeal by the State against an order acquitting several accused persons tried jointly. Section 419 was construed by the High Court to contain a bar against a joint appeal. The major portion of the impugned order dealt with the question of binding character of the Full Bench decision of that High Court since reported as La/u le/av. State of Gujarat(') on the Division Bench hearing the present appeals. After a lengthy discussion the Division Bench came to the conclusion that the Full Bench decision holding a joint appeal to be maintainahle in law was not binding on it.

On the view that we propose to take on the question of ~· tainability of a joint appeal against a common order acqu1tung

(I) A.J.R. 1962 Guj. 125.

several accused persons tried jointly, we do not consider it necessary to embark on a lengthy discussion on the question of binding char-ter of decisions of Full Benches and of Division Benches on future Benches of co-ordinate jurisdiction of the same High Court. We may only make a passing reference to the decisions of this Court cited at the bar in support of such binding character. I.n Maha-tfeolal Ranodia v. The Administrator Genual of West Bengal('), this Court observed as follows :

"We have noticed with some regret that when the ear-lier decision of two judges of the same High Court in Beorajan's case was cited before the learned judges who heard the present agpeal they took on themselves to say that the previous decision was wrong, instead of follow-ing the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a lar-ger Bench. Judicial decorum no less than legal propriety forms the basis.of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if jud-ges of co-ordinate jurisdiction in a High Court start over-ruling one another's decision. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench and holding the view that the earlier decision is wrong, itself gives effect to that view, the result would be utter confusion."

Other decisions cited containing similar observations are : Jai Kaur and others v. Sher Singh etc.( 2 ) and Atma Ram v. State of P111tiab and others(6 ). We are aware of a still more recent deci-sion of this Court in Jaisri Sahu v. Ra; Dewan(') in which re-facnce is made to a Privy Council decision in Bud ha Singh v. lAttu Singh('),

The question of competency of a joint appeal by several per-sons convicted by one order at a joint trial was referred for autho-ritative decision to a Full Bench of the Gujarat High Court in Lrtlu lela's case( 6). The argument before the Full Bench was that r. 6 in Chapter XXVI of the Bombay High Court Appellate Side Rules (which are applicable to the proceedings in Gujarat High Court) was inconsistent with Chapter XXXI of the Code of Cri-minal Procedure, with the result that a joint appeal to the High Court by several persons convicted at a joint trial was not main-tainable. The Full Bench on an exhaustive discussion held such

{I) [1960] 3. S.C.R. 578. (2) [1960] 3 S.C.R. 975.

(3) [1959] I S.C.R. 748. (4) [1962] 2 S.C.R. 558.

(5) I.L.R .37 All, 604 (P.C.). (6) A.T.R. 1962 Gui. 125. an appeal to be competent and did not consider r. 6 to be incon-sistent with Chapter XXXI of the Code. The decision of this Court in Rabari Ghela Jadav v. State of Bombay(') was explained and distinguished. If we agree with the principle accepted in the Full Bench decision then the present appeals would on the reasoning of that decision seem prima facie to possess merit and in the ab-sence of some other cogent reason to the contrary the appeals would have to succeed.

Chapter XXYI of the Bombay High Court Appellate Side Rules, 1960 deals with "criminal business"' and r. 6 is in the fol-lowing words :

"Joint app~al or application by persons affected by the same judgment.

¶6All persons aggrieved by a judgment or an order passed in a criminal case, may join in one appeal or ap-plication for revision, and one copy of the judgment or order complained of shall be sufficient."'

This rule, of course, does not in terms cover the case of an appeal by the State against several acwsed persons jointly tried and acquitted by the trial Court by a. common order, but if an appeal by persons jointly tried and convicted is competent, then on principle it is difficult to negative the maintainability of one appeal by the State against a common order acquitting several persons tried jointly. This rule deals with a matter of procedure and not of substantive rights and seems to be based on sound common-sense. Proccdu1:e has been described to be a hand-maid and not a mistress of law, intended to subserve und faciUtate the cause of justice and not to govern or obstruct it. Like all rules of proce-dure, this rule demands a construction which would promote this cause .. ~o construed a joint appeal, in compliance of this rule must be sustained. The power to frame this rule is specifically con-ferred on the High Court by s. 554(2)(c) Cr. P.C. and r. 6 does not seem to us to be inconsistent with any provisions of the said Code. Holding this rule to be valid, in agreement with the deci-sion of the Full Bench, the competency of a joint appeal by several accused persons convicted at one trial must be upheld. On the same reasoning a joint appeal by the State against several accuse<! persons acquitted at a joint trial has als.o to be held not to be con-trary to any provision of the Code and therefore not legally pro-hibited. Section 419 of the Code on which the High Court seems to have relied in support of the non-maintainability of a joint ap-peal by the State, Jays down inter alia that 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 other-wise directs, be accompanied by a copy of the judgment or order appeakd againot. This section does not seem to us to prohibit a joint appeal by the State against more than one accused perso11~. The contrary view taken by the High Court on the construction of this section is clearly unacceptable. Section 417 which provides for an uppeal in a case of aco_uittal empowers the State Government to direct the public prosecutor in any case to present an appeal from an order of acquittal. This section also does not suggest any bar or prohibition against presentation of a joint appeal agaimt several accused persons acquitted in a case. On the other hand. it provides for an appeal in a case, and not against an accused person, who has been acquitted. The plain reading of this section. therefore, seems to he wide enough to permit a joint appeal. Sec-tions 258, 410 and 423 of the Code also do not seem to indicate any bar as is suggested by the order of the High Court. This Court in Rabari Ghc/a .Tadav'.1· case(1), on the basis of which the judg-ment of the High Court mainly proceeds, merely lays down that the Appellate Court hearing an appeal cannot admit it only on a question of sentence and ihat such a restricted orJcr of admission being invalid, the appcilant would be entitled to in>;ist that his ~ppeal should be he,ard on the merits. This Jccisi0n. in our opinion, does no~ militate against the maintainability of a joint ap-peal. The Full Bench <)ecision of the Gujarat High Court rightly distinguished and explained this decision. As observed earlier. once we accept the Full Bench to lay down the corrc;;t ruk of Jaw. then there cannot be much difficulty in upholding the maintainabi-lity of a joint appeal by the State against several accused persons acquitted at a joint trial. There being no legal bar (at lcr,sl we are aware of none either in the Cr. P.C. or elsewhere), such an ap-peal cannot be held to sufTcr from any serious legal infinnity. And then the matter being one of mere form it calls for a liberal ap-proach requiring the appeal to be heard on the merits. To hold it to be unmaintainable on this ground wouM defeat the larger cause of justice. Unfortunately, we did not have the advantage of arguments on behalf of the respondents because they were un-represented, but on considering the scheme of the relevant p;·o-visions of the Code of Criminal Procedure, we are of the view ;li:.il the High Court was wrong in holding the joint appeal not t<1 \'C maintainable and in summarily rejecting the same.

We accordingly allow the appeal, set aside tlw order of tho High Court and rcr .it the case hack to it for decision of tht· ''ppeal on the merits.

G.C. A 11pca/ a/lowed.