A.T. Sankaralinga Mudaliar vs Narayana Mudaliar and Others

This Judgment has been overruled by : Mary Angel and Others Vs. State of Tamil Nadu, AIR 1999 SC 2245 : (1999) CriLJ 3513 :

(1999) 3 Crimes 64 : (1999) 3 JT 638 : (1999) 3 SCALE 663 : (1999) 5 SCC 209 : (1999) 3 SCR 594 : (1999) 2 UJ 1021 : (1999)

AIRSCW 2283 : (1999) 5 Supreme 370

Walter Salis Schwabe Kt., K.C., C.J.—This is a criminal revision petition against the acquittal of the accused on a charge of murder, in a

case tried by the, Sessions Judge of Tinnevelly. The ground and the only ground on which we are asked to order a retrial is that the learned Judge

did not deliver in Court his full reasons for acquitting the accused. At the end of a three weeks'' trial he left certain specific questions to the

assessors. The assessors agreed that the accused were not guilty and, in answer to a specific question, they agreed that certain witnesses for the

prosecution, who were the principal witnesses, were not worthy of belief. The acting Sessions judge then wrote a document headed ""Judgment

setting forth the findings of the assessors and adding his own finding agreeing with the assessors that the accused were not guilty and they were

acquitted. At a later date he wrote and prefixed to that judgment a full reasoned judgment dealing with the various points raised, the classes of

witnesses and the reasons he had for believing or disbelieving those witnesses. It is agreed that that is not complying with the terms of Sections 366

and 367 of the Code of Criminal Procedure. u/s 367 a judgment is to be written by the Judge containing the point or points for determination, the

decision thereon and the reasons for the decision, and the same section, Sub-Section (4) dealing with acquittals says, ""If it be a judgment of

acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty."" Now, the judgment that was delivered in

Court complied with Section 367(4), because it stated, by a reference back to the question to the assessors the offence and directed that the

accused be set at liberty. Whether that is a sufficient compliance with Section 366 or 367 is a difficult question. There is a dictum in Queen

Empress v. Hargobind Singh ILR (1892) All. 242 that it is not. The correctness of that dictum has certainly been questioned in Tilak Chandra

Sarkar v. Balisagomoff ILR (1896) Cal. 502. I do not think it is necessary in this case to express any view on that matter; because, u/s 537 of the

Code of Criminal Procedure, no finding of a Court is to be reversed on appeal or revision on account of any error, omission or irregularity in

various matters including a judgment. In my view, assuming that the method adopted by the learned Judge in this case is not a full compliance with

Sections 366 and 367, it is a mere irregularity and in my judgment, it is not open to us to set aside the acquittal on that ground alone. But this case

gives rise to another interesting question, namely, the powers in revision of this Court of setting aside this acquittal. Where there is an appeal by the

Public Prosecutor or the Crown from an acquittal, the Court sets its face against revision; but where a private prosecutor, having no power of

appeal, comes to the court in revision, it is certainly open to the Court to hear him. But it has now been laid down in a long series of cases what, on

that sort of application, should be the guiding principle to be acted upon by the Court and I think it is very clearly stated in Faujdar Thakur v. Kassi

Chowdhury (1914) L.R. 42 Cal. 612 by Jenkins C.J. There he reviewed the practice of all the High Courts in India on this point and summarised

his conclusion in these words: ""I am not prepared to say the court has no jurisdiction to enquire on revision with an acquittal, but I hold it should

ordinarily exercise this jurisdiction sparingly and only where it is urgently demanded in the interests of public justice. This view does not leave an

aggrieved complainant without remedy; it would always be open to him to move the government to appeal u/s 417, and this appears to me the

course that should be followed."" - that is to say that the private prosecutor can, if he likes, move the government to appeal. In this case the

representative of the government has told us that having considered the matter the government would not appeal. But; if he cannot get redress that

way, he can come before this Court on revision : but then the principle it that it is only to be granted ""where it is urgently demanded in the interests

of public Justice,"" Applying that to this case, how can it be said that it is urgently necessary in the interests of public justice that this acquittal should

be set aside? The case lasted three weeks; it was tried out fully; the assessors were unanimous, the judge was satisfied with their finding and

acquitted the accused with, no doubt, a desire to prevent either this charge being kept longer over the heads of persons who were in his view not

guilty and he was going to acquit, or perhaps in order to avoid the necessity of letting them out on bail to come back again thereafter to hear their

fate. He took the course which, on the face of it seems an eminently reasonable one of telling the men that they were acquitted and, in fact, gave his

full reasons for the acquittal at another time and it ended there. Now, how it can be suggested that his having done that can amount to an urgent

demand in the interests of public justice that the acquittal should be set aside, I cannot see. On these grounds, I think this petition should be

dismissed. As regards the question of costs the case will be adjourned to to-morrow.

Oldfield, J.

I agree and have nothing to add.

Coutts Trotter, J.

I agree and only wish to add this, that I am satisfied that this is a case in which we have a discretion and we need not interfere if we like; and,

speaking for myself, I cannot agree to the course suggested, namely, that people who have been tried for their lives for a month and acquitted

should be made to undergo a re-trial at the instance of a private prosecutor when the government would not cone forward and urge such a case in

the court of appeal.

ORDER

We reserved this case for further consideration on the question whether there is power in this Court to grant costs on a revision petition brought

not by the Crown but by a private prosecutor against an acquittal, which petition has failed. If there were power, it is a case in which I, speaking

for myself, would gladly grant costs, because as I have expressed in my judgment on the main point in this case, I think this is a petition which

ought never to have been brought, and it is undoubtedly hard that persons, who have been tried for their lives and acquitted, should be put to much

further expenses on frivolous grounds. However, we have to consider whether this Court has power or not and we have listened to very interesting

arguments on both sides on the question. A court may have inherent power to grant costs. That is clear, from a judgment in the House of Lords in

The Guardians of West Ham Union v. Churchwardens and Co. of St. Matthew, Bethnal Green (1896) A.C. 477 where the House of Lords I held

that they had inherent power to grant costs, and in In re Bombay Civil Fund Act 1882; Pringle v. Secretary of Stale for India (1888) 40 Ch. Dn.

288 where Cotton and Bowen L.J.J. state clearly their view that they have an inherent power to grant costs in the matter which came before them,

although there was no statutory provision enabling them to grant the costs. But, in my view, the exercise of that inherent power must be always

restricted and limited to this, that if the power of granting costs by the Court in that kind of proceedings is provided for in some way by statute, the

court cannot, by invoking its inherent powers, extend the powers which had been granted to it by the statute. Now, in this matter we sit in revision

in Criminal cases first under the Letters Patent and being constituted under the Letters Patent have powers given to us as a Court to hear Criminal

Appeals and revision petitions by the Criminal Procedure Code of 1898, That Code does provide in several instances for the payment of costs.

Unlike the Code of Civil Procedure, it has no general clause providing for costs in every case. The sections providing for costs are, among others

148, 433, 488, 526 and 545. The one and I think the only one that it is necessary to look into carefully is Section 433, because there in a

particular form of proceeding before the High Court in Criminal cases there is an express provision that the High Court may direct by whom the

costs of a reference shall be paid. The other sections are specific instances where power to grant costs is given, such as in maintenance

proceedings by a wife and in proceedings to recover stolen property. Having got those instances in which specific power is given to grant costs, in

my judgment the maxim express is uniusest exclusive allerius applies. Where in specific instances a statute gives a court power to grant costs and

the same statute gives the Court its whole criminal jurisdiction, I think the proper rule of interpretation is that expressed in the maxim I have just

quoted with the result that, as the Code gives a specific right of granting costs, it excludes any other right of granting costs. There is some authority

to the same effect in the three cases which have been quoted to us - Nellapparaju Venkataramaraju v. Mudisctti Achayya (1916) 33 I.C. 824

Mahomed Dustagir Sahib v. Mahomed Karimuddeen 2 Weir 196 Queen Empress v. Yamena Rao I.L.R.(1901) Mad. 305, all of them cases in

which this Court has refused to grant costs on the ground that it had no power do so in criminal cases, and with those judgments I agree. It is true

that the Privy Council has frequently exercised the power of granting costs in criminal cases, but the Privy Council was given that power by a

statute and so the fact that the Privy Council exercised that power under the statute does not in any way help in the solution of the question whether

this Court has inherent power or not. On these grounds, I think this petition must be dismissed, but there will be no order as to costs.

Oldfield, J.

I agree,

Coutts Trotter, J.

I am of the same opinion. It seems to me perfectly clear that we have no express statutory authority to grant costs generally in criminal matters

and moreover, as my Lord has pointed out where the Code intends to confer the power of granting costs, it does so in terms. But then it is said

that, apart from any question of the Code the court has an inherent jurisdiction to put matters right as between those who seek its aid by the

granting of costs. The Courts of Equity in England always asserted their possession of such jurisdiction and constantly used it as is pointed out in

the judgment of Lord Chancellor Hardwidke in Corporation of Bur ford v. Lenthall 2 Atk. to 550 . The Common Law Courts did not attempt to

assert their possession of such an inherent jurisdiction and it was often emphatically denied at any rate by equity lawyers, but the House of Lords in

Guardians of West Ham Union v. Churchwarden and Co. of St. Mathew, Bethnal Green (1896) A.C. 477, undoubtedly laid down that as and by

virtue of its position as the highest court in the land and not by any devolution of powers from courts of equity they had jurisdiction to deal with

costs in cases whether arising from the equity or the common law side of the court. But I think that the main reason why it is not possible for this

Court to adopt that line of reasoning and take upon itself the awarding of costs in criminal cases is this Revision is not an inherent power of this or

any other court; the whole machinery of revision is a creature of statute and has to be found within the four walls of the Code of Criminal

Procedure; and, so far as criminal cases are concerned I do not sec how we can posit? an inherent power in ourselves to supplement that purely

statutory machinery by assuming to ourselves the inherent power of supplementing it by the awarding of costs. I therefore, am of the opinion that

we have no power to do what is asked. It is for the legislature to consider whether the power of revision in cases of the kind that we have seen in

these proceedings has not outlived its usefulness or, at any rate, whether it should not be safeguarded by the arming of courts with the power, at

least in cases where revisional proceedings are taken by private prosecutors and not by the Crown, of mulcting them in proper cases by the award

of costs.