Dr. Megh Raj vs Shri Joginder Singh and other

Gurdev Singh and Khanna, JJ.—This is an appeal by Dr. Megh Raj resident of Fatehgarh Churian, brought by special leave of the Court under Sub-section (a) of Section 41(sic) of the Code of Criminal Procedure against the order of Shri R. P. Ojha, Magistrate First Class, Batala, acquitting the Respondents of the charge u/s 323 of the Indian Penal Code.

On 21st February, 1959, the Appellant. Dr. Megh Raj brought a complaint against the Respondents, S. I Joginder Singh, in charge of police station Fatehgarh Churian, and Muharrir Head Constable Pritam Singh Respondents, accusing them of offences u/s 355, 323, 343 and 504 read with Section 31 of the Indian Penal Code. He alleged that on 12th February, 1959, when he Went to the police station, Fatehgarh Churian, on being summoned S. 1 Joginder Singh who was there abused him for bringing several respectable persona with him, and on his protesting against the use of filthy language, both the Respondents, S. I. Joginder Singh and Muharrir Pritam Singh, gave him a beating, causing him several injuries detailed in the medicolegal report. Exhibit P. A. of Dr. B. R. Sud. P. W. 1, who examined him that very day. A charge only u/s 323 of the Indian Penal Code however, was framed against the accused. Both of them, while admitting that Dr. Megh Raj had visited the police station on 12th February, 1959, attempted to explain his injuries by alleging that on coming to the police station when he was arrested in connection with first information report No. 19 he ran away as he was being put in the lockup, and in the scuffle that ensued for his recapture he sustained some minor injuries.

A number of witnesses were produced before the trial Court in support of the two contending versions. The learned Magistrate after scrutinizing the entire material on the record doubted the correctness of the prosecution story and acquitted both the accused. Placing on record a certified copy of a entry from the register of deaths, which goes to show that Dr. Megh Raj Appellant died on 18th May, 1962, learned Counsel for the Respondents has raised a preliminary objection that in view of the death of the Appellant, the appeal has abated and cannot proceed.

Section 431 of the Code of Criminal Procedure which relates to the abatement of appeals, lays down:

Every appeal u/s 411-A, Sub-section (2) or Section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the Appellant.

The appeals provided under Sub-section (2) of Section 411-A and 41(sic) of the Code of Criminal Procedure are appeals against acquittals. Under the former provision, the Government is given a right to appeal both on a matter of law as well as of fact against the acquittal of a person who is tried by the High Court in exercise of its original jurisdiction. Section 417 relates to appeals against orders of acquittal passed by any Court other than a High Court in exercise of its original or appellate jurisdiction. Prior to 1955, the right to impugn an order of acquittal vested only in the Government, but by the Code of Criminal Procedure (Amendment) Act 26 of 1955, Section 417 was recast and a provision made in Sub-section (3) thereof conceding right to the complainant in a case instituted upon a private complaint to appeal from the order of acquittal, after obtaining special leave of the High Court.

On a plain reading of Section 431 of the Criminal Procedure Code, it is apparent that the death of the Appellant shall result in the abatement of a criminal appeal except where the appeal is

(a) against an order of acquittal under Sub-section (2) of Section 411-A or u/s 417 of the Criminal Procedure Code, or

(b) against a sentence of fine. From this, it follows that alt appeals preferred by an accused-person must abate on his death except where the appeal is against a sentence of fine. So far as the appeals against acquittals are concerned, it is laid down that they must also abate if the accused (who will be the Respondent in such a case) dies. The death of the Appellant in an appeal against acquittal, however, would not affect the continuation of the appeal.

The appeal with which we are dealing falls under the latter category, and having been preferred u/s 417 of the Code of Criminal Procedure is clearly saved from abatement u/s 431 of the Criminal Procedure Code.

The clear intention of the legislature in enacting Section 431 of the Code of Criminal Procedure is to permit the question of innocence or guilt of of an accused-person who is still alive to be gone into by a Court of appeal even though the complainant, who is the person aggrieved, has died after the institution of the appeal. This is for obvious reasons. The guilt of an offender is not washed off nor can it be excused merely on the ground that the person against whom the offence is committed, or who had suffered by the offence, is no longer in the realm of the living. If it were otherwise, then no prosecution for murder would be possible

The appeals against conviction, however, stand on a different footing. If an accused on his conviction is awarded a sentence, other then that of fine, naturally it will be pointless to deal with his appeal after his death because the question of his guilt or innocence would be merely of academic importance, and it would not be possible to execute his sentence even if it is upheld. Where the sentence imposed upon an accused is one of fine, the legislature has thought it expedient to allow the appeal to continue, because on the success of the appeal the sentence of fine, would be quashed and his property would be saved from liability for payment of the fine, which would otherwise continue after the death of the accused.

The Respondents'' learned Counsel Shri M. R. Mahajan, has urged that the above construction of Section 431 of the Criminal Proce-dure Code is not tenable in view of the recent decision in The State of Kerala Vs. Narayani Amma Kamala Devi, , where this provision of law has been interpreted by their Lordships of the Supreme Court. He places reliance on the following passage in that judgment (page 1531 of the report):

The Code of Criminal Procedure gives a right of appeal to the convicted person in certain cases. If, after the conviction and before an appeal has been filed the convicted person dies, there is no provision for any appeal on his behalf. What will happen when after an appeal has been filed by the convicted person, he dies, is provided for in Section 431 of the Criminal Procedure Code. That section provides that every appeal against acquittal and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the Appellant. The High Court or the Court of Session cannot, therefore, exercise its appellate jurisdiction in favour of a dead person even if an appeal has been filed by him, except in an appeal from a sentence of fine.

It is particularly on the underlined (italicised) portion of these observations that Shri Mahajan relies for support. These observations have, however, to be read in the context in which they occur. As would be evident from the opening part of the judgment of their Lordships, the question which arose for consideration before them was "Can an application for revision u/s 439 of the Code of Criminal Procedure be entertained by the High Court after the death of the accused-person against whom the order was made?" On a consideration of the various provisions of the Code of Criminal Procedure, their Lordships held that "in a proper case the High Court can exercise power of revision of an order made against an accused-person even after his death." In ariving at this conclusion, they referred to Section 431 of the Code of Criminal Procedure and pointed out that no similar provision as regards the revisional juridiction of the High Court existed in the Code of Criminal Procedure. It is true that even an obiter dictum of their Lordships of the Supreme Court is entitled to respect, yet, in our opinion, the passage from the judgment in State of Kerala v. Narayani Amma Kamala Devi(1), (supra), on which reliance is placed on behalf of the Respondents, cannot be read divorced from its context, and it does not at all lay down that an appeal against an acquittal preferred u/s 417(3) of the Code of Criminal Procedure abates on the death of the Appellant-complainant.

The death of the Appellant Dr. Megh Raj has, hower, resulted in revocation of the power of attorney of his counsel, Shri M. R. Chhibar, for conducting this appeal on his behalf, and, accordingly, Shri Chhibar cannot claim to represent him, nor are the legal representatives of the Appellant entitled to claim substitution and continue the appeal. We have, however, considered it expedient to request Shri M. R. Chhibar to assist us in the disposal of this appeal, and he has argued the case as amicus curiae.

On going through the record, we find that the appeal must, however, fail on merits. The evidence of Dr. B. R. Sud, P. W. 1, goes to show that on 12th February, 1959, when he examined the Appellant, he found a few minor injuries on his person consisting of abrasions and a lacerated wound, which was only 1/8" in length. Whereas the complainant''s case was that these injuries were caused to him without any justification by the Respondents-police officials after he was called to the police station, the defence case was that Dr. Megh Raj sustained these injuries when he attempted to escape from the custody. Ocular evidence was produced by the parties in support of their contending versions. Besides himself coming into the witness-box, Dr. Megh Raj examined Bhim Sen Sharma P. W. 4, Lakhvinder Singh, P. W. 6 and Harbans Singh P. W. 7 as witnesses of the assault, while Inayat Masih, D. W. 3, Chanan Singh, D W. 4 and F. C. Ram Singh, D. W. 11, supported the defence version. After careful scrutiny of the evidence adduced by both the parties the learned trial Magistrate came to the conclusion that a true account of the incident had been withheld by both the parties, and since a good deal of doubt remained in his mind about the correctness of the prosecution story, he had no option but to acquit the Respondents. The findings at which the trial Court arrived are not only borne out by the evidence on record but also consistent with the circumstances of the case. It was the Appellant''s case that his maltreatment by the Respondents had not only created a sensation in the town but also led to forcible dispersal of a crowd by the police, hartal in the bazar, and a deputation led by Kharaiti Lal. P. W. 5, waited upon the Haqa trial Magistrate. Strangely enough, the Haqa Magistrate was not examined nor any local paper, in which the allegations about the high-handedness of the police are alleged to have been published, was produced.

It was admitted by the complainant, Megh Raj, P. W. 2, that on the day following his arrest he was produced before a Magistrate, but Curiously enough, he neither made any written or oral complaint against the police, nor even mentioned it to the Magistrate that he had been the victim of police high-handedness.

In the present case of Harbans Singh v. The State of Punjab(2), their Lordships of the Supreme Court have laid down that in dealing with the acquittal-appeals though the High Court has full authority to go into evidence and arrive at its own conclusions, it should interfere with the order of of acquittal only if it is satisfied that the view taken by the acquitting Judge was clearly unreasonable. The trial Magistrate had the advantage of watching the demeanour of the witnesses, and we find no adequate reason for interference with his assessment of the evidence. The conclusions at which he has arrived cannot be considered to be clearly unreasonable, and in these circumstances, interference with the order of acquittal is not warranted. The appeal is, accordingly, dismissed.