Fauja Singh vs The State

Teja Singh, C.J.—The following two questions have been referred to the Full Bench:

(1) Can the High Court in an appeal by a convict & without an appeal by the State Govt. on the findings of fact at which it arrives in appeal, alter the findings of Section 423(1)(b)(2), Code of Criminal Procedure to any other finding it (sic) proper?

(2) If the answer to (1) above be in the affirmative can the High Court after altering the finding u/s 423(1)(b)(2) enhance the sentence u/s 439, Code of Criminal Procedure to any sentence it considers suitable in spite of the fact that Section 423(1)(b)(3) enjoins that in case of alteration of finding the sentence cannot be enhanced by an appeal late Court in an appeal by the convict?

Section 423, Code of Criminal Procedure, deal with powers of an Appellate Court in disposing of an appeal. It says:

(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, & hearing the Appellant or his pleader, if he appears & hearing the Appellant or his pleader, if he appears & the Public Prosecutor, if he appears, & in case of an appeal u/s 411-A Sub-section (2) or Section 417, the accused, if the appears, the Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse such order & direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty & pass sentence on him according to law:

(b) in an appeal from a convict, (1) reverse the finding a sentence & acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence or (3) with or without such reduction & with sentence, but subject to the precisions of Section 106, Sub-section (3) not so as to enhance the same:

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental order that may be just or proper.

Sub-section (2) lays down that nothing contained in this section shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him. With this we are not concerned in the present ease.

As the words of Clause (a) of Sub-section (1) show it deals with an appeal against the order of acquittal & empowers the appellate Court, if it does not dismiss the appeal, to reverse the order of acquittal & inter alia to find the accused guilty & pass sentence on him according to law. Clause (b) relates to an appeal from a conviction & says that the appellate Court can either reverse the finding & sentence, & acquit or discharge the accused, or do one of the other things mentioned therein. One of such things is to alter the finding & the other is to reduce the sentence with or without altering the finding.

Now when a person is acquitted, naturally this can only be if the finding of the Court is that he has not committed any offence. In the ease of a conviction the finding is divisible into two parts, (1) that he has committed an offence, & (1) that the offence falls within the purview of a particular section of a particular enactment. According to Clause (b) of Sub-section (1), the Appellate Court has the powers inter alia to reverse the finding or to alter it. "Reversal" in the ordinary sense connotes turning up side down & when applied to a finding of acquittal it affords no difficulty at all, because it simply means that the finding can be completely upset & the accused person can be held guilty of having committed an offence. The difficulty arises only in the case of a finding of conviction As mentioned already, the section empowers the Appellate Court not only to reverse that finding, but, if it so considers necessary to alter it. From the fact that these terms are used together & in contradistinction to each other, it should be inferred that one is quite different from the other. The reversal of the finding implies that the whole finding is upset, that is to say in place of the finding of the Court below that the accused has committed an offence & that offence is of such & such nature the Appellate Court, arrives at the finding that no offence whatsoever was committed. On the other hand when the Appellate Court alters the finding of conviction, it allows one part of it to stand & changes only the other part. Let us for the sake of an example take a case in which the accused is tried on the charge of murder, the allegation against him being that he killed his victim by causing injuries to him with a hatchet The Ses. J. convicts him u/s 326, I.P.C. On appeal by the convict, the High Court upholds that finding of the Ses J. that the accused committed an offence but being of the view that the injury caused was not grievous changes the conviction u/s 326, I.P.C. to one u/s 324, I.P.C. This would be alteration of the finding but not reversal because a part of the finding that the accused committed on offence is upheld & only the other part of it regarding the nature of the offence is changed. Counsel on both sides are agreed that alteration of finding of this kind is within the powers of the Appellate Court. Now suppose that in the very case mentioned above the High Court instead of holding that the injury was simple, agrees with the trial Court that it was grievous & at the same time takes the view that it was sufficient to cause death in the ordinary course & the accused inflicted it deliberately & with the intention of causing death & accordingly the offence fell within the purview of murder The question is whether it can alter the Appellant''s conviction from Section 326 to one u/s 302, I.P.C. The learned Advocate General argued that since by so doing the High Court would be maintaining a part of the finding of the trial Court that the accused committed as offence, the net result would only be the alteration of the finding & accordingly it would be covered by Clause (b) of Sub-section (1). The opposing counsel did not agree with the Advocate-General & contended that the appellate Court had no power to alter the finding so as to substitute conviction for a minor offence into that for a major offence. The first argument that he gave in support of his contention was that the words of the second part of Clause (b) of Sub-section (1) of Section 423 indicated that the intention of the legislature was that if the appellate Court considered it necessary to alter the conviction, that alteration should be from a major offence to a minor offence & not vice versa, otherwise it could not have laid down the condition of maintaining the sentence. He particularly pointed out the anomaly that would follow if, say for an example, conviction u/s 304 with a sentence of 5 years is altered to one u/s 302 & the sentence is maintained, because the least sentence that can be awarded u/s 302 is that of transportation for life. As regards the intention of the legislature, I am not inclined to agree with the learned Counsel because the word used is "alter" without any qualification & if we were to interpret it in the way counsel wants us to do, we would be reading certain words in the section which it does not contain. It may also be pointed out that had the legislature intended that the power of altering the finding given to the appellate Court could only be used for a limited purpose i.e. for converting a conviction for a major into one for a minor offence, they could have very easily added words to this effect to the section. As regards the condition that the sentence should be maintained the explanation is that power to enhance the sentence is given only to the High Court while Section 423 applies to all appellate Courts which include the Sessions Court, the Court of the District Magistrate & even the Court of a 1st Class Magistrate invested with powers to hear appeals from subordinate Magistrate. If the appeal is heard by the High Court & it decides to alter the finding, no doubt u/s 423 it cannot enhance the sentence, but as I shall show later on there is nothing to prevent it from using the powers given to it as a Court of revision u/s 439. No difficulty can arise even in a case where the appellate Court happens to be a Court other than the High Court because if it alters the finding & considers that this must be followed by the enhancement of the sentence also, all that it has to do is to refer the case to the High Court.

The second argument advanced by the counsel was that alteration of a finding so as to convert conviction for a minor offence into one for a major offence would virtually amount to setting aside the order of acquittal & substituting in its place an order of conviction which can only be done on an appeal by Govt. u/s 417. I am prepared to concede that where an accused person is charged with a major offence but is convicted of a minor offence it can certainly be said that even though he is not acquitted of the major offence in so many words, the mere fact that he is convicted not of that offence but of the minor offence implies his acquittal of the major offence. I am also prepared to concede that if on appeal by the convict the appellate Court alters the finding so as to convict him of the major offence instead of the minor offence of which he was convicted by the trial Court in a way it converts a finding of acquittal into one of conviction. This view is supported by the observations made by their Lordships of the Privy Council in Kisan Singh v. Emperor 50 All. 722. I do not, however, agree with counsel that the power to convert a finding of acquittal into that of conviction is denied to an appellate Court. Our attention was drawn to Clause (4) of Section 439, but that section deals with the power of the High Court as a Court of revision while Section 423 refers to the power of all appellate Courts &, in my opinion, it would be wrong to foist Clause (4) upon the latter section. This point has been considered by various High Courts in a large number of cases but there is considerable divergence of opinion. The view that I have taken is largely supported by the two Full Bench decisions one of the Lahore High Court Bawa Singh v. Emperor AIR 1941 Lah. 465 & the other of the Allahabad High Court, Zamir Qasim and Others Vs. Emperor, In the Lahore case the leading judgment was that of Dalip Singh J. & he made the following observations:

In the case contemplated in Section 423(1)(b) it is obvious that there is no question of a complete acquittal for the appeal is against a conviction & in this case, therefore, there is no necessity to annul or set aside any finding that the man is innocent or not guilty of anything at all. All that is necessary is to find the proper offence or which he could be held to be guilty on the findings of the appellate Court. Hence there is no reason to give any power to the appellate Court to reverse a finding of innocence. All that is needed is given by the words ''alter the finding'' that is to say, power is given to the appellate Court to alter the finding to whatever finding it considers on the facts found applicable to the offence committed by the accused.

Later on his Lordship observed that:

all that is taken away from the appellate Court is the power of enhancing the sentence, but no restriction is placed on the power of appellate Court to change the finding to any that it considers suitable to the purpose.

With all deference, it appears to me that this dictum is rather very widely worded & it is not correct to say that the power of the appellate Court to change the finding is unrestricted. No doubt, Section 423 does not impose any restrictions, but there are restrictions that are inherent. To this aspect of the matter I shall revert later.

Zamir Qasim and Others Vs. Emperor, was heard by a Bench of five Judges, the majority (Iqbal Ahmad C.J., Ismail & Darr JJ.) held that an appellate Court is, subject to the other provisions contained in the Code of Criminal Procedure, empowered u/s 423(1)(b)(2) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Provincial Govt. but it cannot enhance the sentence imposed by the trial Court. Most of the cases in which the opposite view was taken have been noticed & some have been discussed in the above-mentioned oases & no useful purpose will be served by discussing them here. Mulla J. who was one of the dissenting Judges in Zamir Qasim''s case, in a lengthy & learned judgment set out the anomalies that in his opinion would arise if the majority view was accepted. If I may say so with respect most of these anomalies would disappear if we bear in mind two things:

(i) that the power of the appellate Court as regards the alteration of the finding is confined only to the finding upon which is based the conviction from which the appeal is preferred, & (ii) that the powers of the appellate Court are in some respects co-extensive with those of the trial Court & are consequently restricted by the other provisions of the Code of Criminal Procedure.

As regards the first, I wish to point out that the important words of part (2) of Clause (b) of Sub-section (1) of Section 423 are "alter the finding" & the word, "the" in my opinion means the finding that the Appellant baa committed the offence of which be is convicted & no other. To make my meaning clear I would take a case in which the accused is charged with two offences. These may be offences of the same kind & the accused may have been charged with them u/s 234 or they may be of different kinds & the charges with respect to thorn may have been joined u/s 235 on the ground that they formed the same transaction. What is necessary to note is that they are distinct offences. Now suppose that the trial Court acquits the accused of one of the offences & convicts him of the other & sentences him. The convict prefers an appeal. There can be no denying the fact that the only finding which is before the appellate Court in the finding relating to the offence of which the accused is convicted & that is "the finding" within the meaning of Section 423. As regards the other offence the finding is of acquittal & the appellate Court while hearing the convict''s appeal is not concerned with it. It follows from all this that it is only the finding of conviction that can be altered by the Court & not the finding of acquittal with respect to the other offence. The latter finding can be reversed only on an appeal by the Govt. u/s 417, Code of Criminal Procedure. I would invite reference in this connection to Sarda Prasad Vs. Emperor In that case two separate charges were framed against the accused, one u/s 60(a), Excise Act, for being in possession of illicit liquor & fermented wash & the other for being in possession of implements for manufacture of illicit liquor. The trial Court held that the liquor found in the bottles recovered from the accused''s possession was not proved to be illicit &, therefore, acquitted him of the first charge, but convicted him of the second. From the order of conviction the accused preferred an appeal to the Ses. J. who came to just the contrary conclusion. He found that there was no proof that the implements which were found in the accused''s house could not have been used for any purpose other than that of manufacturing illicit liquor & accordingly held that no offence u/s 60(f) was established; but at the same time he held that the bottles contained illicit, liquor & the accused had, therefore, committed an offence u/s 60(a). In the result he set aside the Appellant''s conviction as recorded by the Magistrate but instead convicted him u/s 60(a). The learned Judges of the High Court held that the Ses. J. had no power to substitute a finding of acquittal with regard to one offence by that of conviction for Anr. offence. After analysing the different parts of Section 423 & the powers of the appellate Court under that section this is what they observed:

Now there is clearly a distinction between reversing a finding & merely altering it. Where an order of acquittal is to be converted into an order of conviction it amounts to a reversal of the order. On the other hand'' where the conviction under one section is altered to a conviction...maintaining the sentence or reducing it or altering it, it amounts merely to an alteration of the finding & not to a reversal of the finding. It is clear to us this Sub-section (1)(b) is not applicable to a case where there is an express order of acquittal & no appeal from a conviction pending before the appellate Court.

I am in agreement with these observations & if I may say so with respect, I would add that since the finding before the Ses. J., in appeal was only the finding that the Appellant had committed an offence u/s 60(f) inasmuch as he was found in possession of implements used for manufacturing illicit liquor his power was confined to the alteration of that finding but instead of altering it he reversed it, because he held that the Appellant had not committed any offence & at the same time reversed the finding of acquittal which related to the other offence by finding the accused guilty of it. This decision was approved by Dalip Singh J., in the Lahore Full Bench case, though at the same time he pointed out that the observations made by the learned Judges that their Lordships of the Privy Council had held in Kishan Singh''s case 50 All. 722, that neither an appellate Court nor a revisional Court has power to reverse the finding of acquittal & oonvert it into one of conviction, were not correct. I am aware that Iqbal Ahmad C.J., held in Zamir Qasim and Others Vs. Emperor, that Sarda Prasad Vs. Emperor was not correctly decided & he disagreed with Dalip Singh J., on this point, but it appears to me that while giving expression to this view the learned Judge was thinking of the observations that the judgment of that case contained about Kishan Singh''s case rather than the legality of the ultimate decision. In any case my own opinion is that Sarda Parsad v. Emperor, was correctly decided. As regards Kishan Singh v. Emperor 50 All. 722, all that I wish to say is that the principle laid down therein by their Lordships of the Privy Council does not go counter to the proposition that an appellate Court while hearing an appeal from a conviction can alter that finding of conviction, even though in doing so it may in some cases have to convert the finding of acquittal into one of conviction. As was rightly pointed out by Iqbal Ahmad C.J., that was a case u/s 439 & their Lordships held that in view of what was contained in Sub-section (4) of that section the High Court while acting as a Court of revision was not authorised to convert a finding of acquittal it to one of conviction. Their Lordships approved the decision of the Allahabad High Court in Emperor v. Sheo Darshan Singh 44 All. 332 but in that case too the High Court had moved on the revision side & there was no appeal from a conviction before them.

As regards the second, though the final order of the Full Bench in Zamir Qasim and Others Vs. Emperor, does not make any mention of the restrictions upon the power of the appellate Court to alter the finding of conviction, the perusal of the judgment of Iqbal Ahmad C.J. would show that he was not oblivious of them. In fact, he definitely held that the power was subject to certain restrictions. The words of the concluding para of his judgment are:

For the reasons given above, my answer to the questions referred to is as follows:

An appellate Court is, subject to the other provisions contained in the Code, empowered u/s 423(1)(b)(2) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Provincial Govt.

With a view to find out which provisions of the Code he was thinking of, we must turn to, the body of his judgment. At one place he referred to the contention that Section 423 is subject to the other provisions of the Code & that the power to alter the finding is confined to oases falling within the purview of Sections 236, 237, 238, & remarked:

It is well settled that a provision in a statute should be so construed as not to bring it into conflict with other provisions contained in the same & it must be admitted that, in this sense Section 423 is subject to, A controlled by the other provisions enacted in the Code. It follows that the words ''alter the finding'' must be construed in the light of the other provisions of the Code.

Further he maintained that the interpretation put by him upon the words did not introduce any repugnancy between Section 423 & the rest of the Code & after saying something about Sections 236, 237 & 238, he added:

All the same in order to avoid repugnancy, the phrase ''alter the finding'' should be so construed as not to load to the infringement or violation in the slightest degree, of the provisions enacted in Chap. 19. That phrase must therefore be so construed as not to vest the appellate Court with the power to substitute a finding of conviction which in view of the provisions of the Code the trial Court itself was not competent to record. In other words, the authority given to the appellate Court to ''alter the finding'' must be subject to the provisions relating to ''joinder of charges''. To put the matter in Anr. way, the appellate Court can alter a finding of acquittal into one of conviction, only in cases where, in conformity with the provisions of Sections 233 to 238 or Section 246 the trial Court itself could have convicted the Appellant as regards the offence with respect to which that appellate Court convicts him. In short, the power to alter the finding is controlled by the provisions relating to ''joinder of charges'' & can be exercised subject to the conditions & restrains prescribed & imposed by Sections 233 to 238 & Section 246 of the Code.

At the fame time, he observed that he found it impossible to accede to the argument that the ower to "alter the finding" can be exercised only in cases falling within Sections 236, 237 & 238 of the Code.

I would now proceed to examine the position with reference to each section. Section 233 lays down the general rule that for every distinct offence of which any person is accused there shall be a separate charge & every such charge, shall be tried separately Sections 234, 235, 236 & 239 are exceptions to this rule. When a person is charged with a major offence & the trial Court convicts him of a minor offence, my opinion is that on appeal by the convict the appellate Court can alter the finding of conviction so as to substitute conviction for the major offence for conviction for the minor offence. I have already shown that though this will technically mean the conversion of a finding of acquittal into one of conviction this is within the powers of the appellate Court by virtue of the words used in Section 423. Let us take a case in which the charge relates to the minor offence & the trial Court convicts the accused of it but when the case goes to the appellate Court on appeal by the convict that Court comes to the conclusion that the offence is really a major one & the trial Court was not right in recording conviction for the minor offence. There is no doubt that if it so desires it can quash the conviction & send back the case to the trial Court for retrial after amending the charge, or with the direction that the charge be amended. Can it in the alternative convict the Appellant of the major offence? I agree that to hold that the Appellant committed the major offence & not the minor offence would be covered by the words "alter the finding" within the meaning of Section 423(1)(b)(2) but at the same time I think that the conviction would be illegal, because according to law a trial Court cannot convict an accused person of an offence higher than the one with which he is charged & in this respect the powers of the appellate Court are not greater than those of the trial Court. In addition, it would seriously prejudice the accused, because he had no opportunity of meeting a case under the major offence. In Zamir Qasim and Others Vs. Emperor, Mulla J. made the following observations on this point:

Alteration of a finding of conviction by the appellate Court can take only three possible forms, viz., (1) reducing a major offence to a minor offence, (2) converting a minor offence into a major offence, & (3) substituting conviction for one offence in place of conviction for Anr. ...with regard to the second form of alteration I am definitely of the opinion that it is not permitted by the law at all. If the accused person is charged with and convicted of only a minor offence, there can be little doubt that the appellate Court cannot convert that finding of conviction into a finding of conviction for a major offence.

I am in agreement with these observations. The learned Judge also observed that he could not see any distinction in principle between a case where the appellate Court converts a minor offence into a major offence & the case in which the accused person is charged with a major offence but is acquitted thereof & is convicted by the trial Court of a minor offence. My view on this point is different & I have shown that it is supported by the weight of authority.

Sections 234 & 235 authorise the joint trial of charges relating to different offences in one case when they are offences of different kinds but are committed between a period of one year & in the other cane when they are committed by the tame person and are so connected with each other as to form the same transaction. For the reasons given above, I am of the opinion that if an accused person is convicted of one offence & acquitted of the Ors. & he prefers an appeal against his conviction, the appellate Court cannot so alter his finding of conviction as to substitute conviction for an offence of which he was acquitted by the trial Court for conviction for the offence of which he was actually convicted. Sections 236 & 237 may be taken together. The former lays down that if a single act or series of acts is of such a nature that it is doubtful which of the several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences, & any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. The latter section says that if in a case u/s 236 the accused is charged with one offence & it appears in evidence that he committed a different offence for which he might have been charged under that section he may be convicted of the offence which he is shown to have committed although he was not charged with it. Let us take illustration A to Section 236. A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust of cheating. He may be charged with theft, receiving stolen property, criminal breach of trust & cheating, or he may be charged with having committed theft, or receiving stolen property or criminal breach of trust or cheating Let us suppose that he was charged with theft, but was convicted of receiving stolen property; can the appellate Court alter the conviction for stolen property into one for theft Since the offence in essence was one & by holding that it amounted to theft A not to receiving stolen property the Court would be merely altering the finding of conviction. In my judgment the question should be answered in the affirmative. The law gives this power to the trial Court & T find no reason why the same power is not exerciseable by the appellate Court.

Section 238 deals with a case when the accused is charged with a major offence but the Court finds that the offence actually proved is of minor nature. The section says that in a case of this kind conviction for the minor offence is legal. The section also lays down that if the charge relates to a complete offence conviction may be for an attempt to commit that offence. In case of an appeal from conviction, for a minor offence coming within the purview of this section or in case of an appeal from conviction for an attempt to commit an offence can the appellate Court alter the conviction, from the minor offence to the major offence & from the attempt to commit an offence to the complete offence? Obviously the only objection that can be raised against this course is that when the trial Court records conviction for a minor offence or for an attempt to commit an offence even if its order does not say that the accused is acquitted of the major offence or of the complete offence this is implied & the alteration of the finding would mean the conversion of a finding of acquittal into one of conviction. On principle I do not see any difference between a case of this kind & the case that I have dealt in the earlier part of this order while discussing, Section 233, because the order of the appellate Courts will be nothing more than the alteration of the finding of conviction. In addition, it may be mentioned that because the accused was charged with the major offence or with the complete offence as the case may be & he had full opportunity to meet the case under that charge there can be no question of his being prejudiced If the trial Court could convict him of the offence with which he was charged, there is no reason why that power should be denied to the appellate Court.

Coming now to the second question referred to the Full Bench. This is how Section 439 reads:

(1) In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in its discretion, exercise, any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 & 428 or on a Court by Section 338, & may enhance the sentence; & when the Judges composing the Court of Revision are equally divided in opinion the case shall be disposed of in manner provided by Section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by n Magistrate acting otherwise than u/s 34, the Court shall not inflict a greater punishment for the offence which in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate, or a Magistrate of the first class.

(4) Nothing in this section applies to an enquiry made u/s 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(5) Whore under this Code an appeal lies & no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under Sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause be entitled also to show cause against his conviction.

The words of Sub-section (1) are very important & to me they mean that when the record of any proceedings is called by the High Court or is reported to it for orders or it comes to its knowledge otherwise, the High Court while disposing of those proceedings, may exercise any of the powers conferred on it as a Court of appeal by Sections 423, 426, 427 & 428 or Section 338 & may also enhance the sentence, subject of course, to what is contained in Sub-sections (2) to (6). When a case comes before a High Court on appeal the powers that it can exercise as the Court of appeal are enumerated in Section 423. These powers, as mentioned above, include in the case of appeal from conviction the power to alter the finding of conviction. When the case comes to the High Court only u/s 439 & there is no appeal by virtue of what is said in Sub-section (1) of Section 439 even then it can exercise all the powers u/s 423, including the power to alter the finding of conviction. The difference between the two cases is that as appellate Court when altering the finding of conviction the High Court must maintain the sentence as a Court of revision acting u/s 439 it can enhance the sentence subject to this fact that it cannot convert a finding of acquittal into one of conviction because this is expressly laid down in Sub-section (4). The question is whether while hearing an appeal the High Court can also use the powers that it has as a Court of revision. I do not find anything either in Section 439 or in Section 423 which can prevent it from doing so. As I read the words of Section 439 the impression that I form is that the intention of the legislature was that the High Court as a Court of revision should possess much higher powers than it can exercise as a Court of appeal & it is for this reason that it is expressly provided in Sub-section (1) that the Court may in its discretion exercise any of the powers conferred on a Court of appeal by Section 423 etc & may enhance the sentence. It is true that as a Court of appeal the High Court while altering the finding cannot enhance the sentence but this power it can exercise as a Court of revision. It was stressed before us that because of Sub-section (4) of Section 439 when the High Court acts as a Court of revision it cannot alter a finding of acquittal into that of conviction except on an appeal u/s 417, Code of Criminal Procedure. This is no doubt correct & when the only thing before the High Court is a revision it is bound by the provisions of Sub-section (4), but when in addition to the revision there is before the High Court also an appeal by the convict its power to alter the finding of conviction is not controlled by the said sub-section. It follows from this that in cases of an appeal by a convict the High Court can alter the finding, even though by doing so it converts the finding of acquittal into that of conviction & by the exercise of the powers given to it by Section 439 it can enhance the sentence also. The view is supported inter alia by the Full Bench decision of the Lahore High Court in Bawa Singh v. Emperor AIR 1941 Lah. 465 referred to above & Ranjha v. Emperor AIR 1948 Lah. 74 . In the Full Bench case Dalip Singh J. discussed a large number of authority bearing on the point & held that it is open to an appellate Court in an appeal from a conviction by a convict, say for example, u/s 302, Penal Code, but convicted u/s 304 Part I, Penal Code to alter the conviction from one u/s 304 Part I to one u/s 302 Penal Code & then in the exercise of the powers conferred by Section 439(1) to enhance the sentence to one of death. A different view was taken by two branches of the Allahabad High Court in Mohammad Sharif and Another Vs. Rex, There seems to be a discrepancy in this citation. - Ed. In the first case the learned Judges observed that the view that they were taking was supported by the Full Bench decision of their Court in Emperor v. Zamir Qasim AIR 1944 All. 37 but with all deference, this is not the case, because the majority of the Judges who constituted the Full Bench held that an appellate Court is empowered u/s 423 to alter a finding of acquittal into one of conviction even though no appeal, has been preferred by the Provincial Govt. It is true that they also hold that the power to alter the finding was subject to the condition that the appellate Court could not enhance the sentence imposed by the trial Court but they were merely considering Section 423 & they did not decide that if the Court so desires it can use its revisional powers u/s 439 & enhance the sentence after giving a notice to the accused. The learned Judges also referred to Kisan Singh''s case 50 All. 722 but in that case their Lordships of the Privy Council wore dealing only with a revision application. In the second case the learned Judges were of the view that two processes, i.e. of altering the finding & enhancing the sentence could not be absolutely simultaneous & where a finding is altered first & then the sentence is enhanced in effect the High Court revises its own order. I take the liberty of differing from this view and follow that taken by the Lahore High Court in Bawa Singh v. Emperor. When a cast is before the High Court on an appeal by the convict & it also decides to proceed as a Court of revision it has all the combined powers given to it by Sections 423 & 439 & these powers include the power to alter the finding & to enhance the sentence imposed by the trial Court, & when it does enhance the sentence, it is the sentence awarded by the trial Court.

In the result I would answer both the questions referred to the Full Bench in the affirmative subject to this proviso that as regards the alteration of the finding u/s 423(1)(b)(2) the power of the High Court as the Court of Appeal is subject generally to other provisions of the Code of Criminal Procedure.

Kesho Ram Passey, J.

I agree

Gurnam Singh, J.

Following two questions have been referred to the Full Beach: [After stating the two questions as in Para 1, his Lordship proceeded:] In order to determine the question referred to the Full Bench it is necessary to make a careful analysis of Section 423, Code of Criminal Procedure. This section reads as follows: [Section 423 is quoted for which see Para 2.] The question hinges on the legal implication of the expression "alter the finding" used in Section 423(1)(b)(2), Code of Criminal Procedure Sub-clause (b) refers to an appeal from conviction. It, therefore, has to be determined whether in such an appeal the expression will include the power to alter the finding in a manner so as to convert a finding of acquittal into one of conviction. At first sight it appears that the powers of the appellate Court to alter the finding are unlimited & thus include the powers of converting acquittal whether express or implied, into conviction. But the careful reading of the section shows that the Legislature did not & could not have intended to give such unrestricted powers. This section has to be road subject to other provisions of the Code contained in Sections 233 to 239 & Section 246, Code of Criminal Procedure. It appears to me that the expression "alter the finding" is controlled by the provisions relating to joinder of charges mentioned above & can be exorcised subject to limitation prescribed therein. The only alterations permissible under law are those provided by Sections 236 & 238 of the Code. The powers of alteration can operate only within the limits prescribed by law contained in those sections. The powers of the appellate Court, being co-extensive with that of the trial Court the former, therefore, cannot exceed the powers of the latter. The words "alter the finding" should be considered in the context in which they occur. In Section 423(1)(b) the appellate Court is given two kinds of powers i.e. powers of reversal & "alteration". The word "finding" appearing after the word "reverse" must have the same meaning as the word occurring after the word "alter". It may be noted that sub Clause (b) of the relevant section opens with the words "appeal from conviction". The very conception of the "finding" within the meaning of sub Clause (1) of Clause (b) is one of conviction. The words "appeal from conviction" clearly preclude an idea of an order of acquittal. The words "finding & sentence" must refer to finding of conviction. It, therefore, follows that the words "alter the finding" & "maintaining the sentence" mean a sentence from conviction. It cannot moan the finding to which no sentence is attached. The words "the finding & sentence" must be read together. The appellate Court is given power to "alter the finding, to maintain the sentence or reduce the same". In the case of an acquittal "alter the finding" & "maintaining the sentence" would be meaningless as no sentence is attached to order of acquittal. If a person charged with murder u/s 302, Penal Code, is acquitted of that charge but convicted for culpable homicide not amounting to murder, he is given no sentence under the former charge. The normal sentence under that offence being either death or transportation for life this sentence is not given to him. How is it then to be maintained in the event of "alteration of the finding". The Legislature could have never intended this. Apart from this the enhancement of the sentence is prohibited by Section 423, Code of Criminal Procedure itself.

In the Code of Criminal Procedure of 1861 no right of appeal against acquittal was given to the Crown. Section 407 of that Code provided that there shall be no appeal from a judgment of acquittal passed by any criminal Court. Inspite of this total prohibition Section 419 of the same Code provided that:

the appellate Court after perusing the proceedings of the lower Court & after hearing the plff. or his counsel or agent if they appear, may alter or reverse the finding & sentence or order of such Court but not so as to enhance any punishment that shall have been awarded.

It can be reasonably inferred from these provisions of the Code that the Legislature never contemplated that this altering the finding would give power to the appellate Court to convert acquittal into conviction. An appeal from such order of acquittal was barred. The right of appeal to the Govt. was for the first time given by Section 272, Code of Criminal Procedure (Act X [10] of 1872). In that section also it was provided that "in no other case shall there be an appeal from a judgment of acquittal passed in any criminal Court". Section 280 of that Code provided that the appellate Court may alter or reverse the finding & sentence or order of such a Court. These provisions of the old Code clearly indicate that the power of alteration given to the appellate Court did not entitle that Court to set aside the order of acquittal. There is no reason to interpret the word "alter" in the present Code in any different way than the same word found in the old Code.

The relevant section itself clearly indicates the intention of the Legislature regarding the scope of the word "alter". This word has always been used in the section in contradistinction to the word "reverse". "Alteration" is a process of limited scope than "reversal". The meanings of these two words are explained in the Full Bench judgment of the Lahore High Court, Bawa Singh v. Emperor AIR 1941 Lah. 465. It is as follows:

It is necessary to bear in mind the distinction between the words "alter" & "reverse" as used in Section 423, Code of Criminal Procedure. The ordinary meaning of the word ''reverse'' is to ''annul'' or turn into something completely opposite in character; whereas ''alter'' is a less radical expression & means change in form without changing the underlying character of the thing to be changed.

Keeping this interpretation of these words in view it follows that when an appellate Court changes a finding of acquittal into that of conviction, it docs not merely alter the finding but reverses it. The relevant Section (423) itself gives clear indication to this interpretation. In Clause (a) are described the powers of the appellate Court where in appeal the Court reverses the order of acquittal; whereas Clause (b) as already mentioned deals with appeals from conviction. The matter was considered in Sarda Prasad Vs. Emperor . It was held that:

It is clear to us that Sub-section (1)(b)(2) of Section 423, Code of Criminal Procedure is not applicable to a case where there is an express order of acquittal & no appeal from conviction is pending before the appellate Court. In such a case the appellate Court, has no power to reverse the finding at all. It cannot by convicting the accused of the offence of which he has been acquitted, reverse the finding, by regarding it as if it were merely an alteration of finding.

This case was considered by Full. Bench of the Allahabad High Court later in Zamir Qasim and Others Vs. Emperor, Its did not find favour with the majority view expressed in that judgment. In AIR 1941 Lah. 465 the observation made in Sarda Prasad Vs. Emperor referred to above was approved by Dalip Singh J, who wrote the leading judgment. Dalip Singh J., however, makes a distinction between "complete" and "incomplete acquittal." This distinction to my mind does not exist It is conceded that in case of "complete acquittal" the appellate Court would have no power to convert it into conviction by altering the finding. But in case of "incomplete acquittal" the appellate Court would be competent to do so. The argument is that when a person is found guilty of some offence even though he is acquitted of the major offence, the Court is empowered by altering the finding to convict him of that offence of which he was acquitted. According to this argument, the man is found guilty. It is a matter of convicting him under the right section. I cannot persuade myself to agree with the argument if I may say so with great respect. When a person is acquitted of the charge of murder & is convicted of a minor offence of culpable homicide not amounting to murder, the Court in fact finds him innocent of the former charge If in such a case the appellate Court by the process of alteration of finding convicts him of murder it would be converting the finding of innocence regarding murder to that of guilt. Their Lordships of the Privy Council in Kishan Singh v. Emperor AIR 1928 P.C. 254 considered this aspect of the case i.e. whether there was any distinction between "complete" & "incomplete" acquittal. During the course of their judgment their Lordships observed at page 257 that

their Lordships'' attention was drawn to a decision of the Madras High Court in K. Bali Reddi v. Emperor 37 Mad. 119 in which amongst other matters it was decided that Section 439, Sub-section (4) must be construed as referring to cases where the trial has ended in a complete acquittal.

The reason of that decision was that any other construction would be inconsistent with the power to "alter the finding" given to the Court as a Court of revision by virtue of its power to exercise the powers conferred on a Court of appeal by Section 423(b)....

It is not necessary on the present occasion for their Lordships to express any opinion whether the facts of the cited case would justify the decision at which the learned Judges arrived. Their Lordships, however, do think it necessary to say that if the learned Judges of the High Court of Madras intended to hold that the prohibition in Section 439, Sub-section (4), refers only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges of offences, & not to a case such as the present, where the accused has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, their Lordships are unable to agree with that part of their decision. The words of the sub section are clear & there can be no doubt as to their meaning. There is no justification for the qualification which the learned Judges in the cited case attached to the sub-section.

18a. It was argued by the learned Advocate-General that their Lordships were considering the case on the revisional side. No doubt this was so. This however, doe3 not make any difference in the meaning of the expression ''complete acquittal" and "incomplete acquittal. "Whatever form of acquittal it is, it amounts to acquittal. It, therefore, follows that if a person is acquitted of the charge of murder & he is convicted of a lesser offence, the appellate Court in case of changing his conviction in an appeal against conviction, would not be merely altering the finding but would be reversing the-findings of acquittal into that of conviction. This aspect of the case was considered in Zamir Qasim and Others Vs. Emperor, by Mulla J. In his learned judgment Mulla J. considered the question in detail & arrived at the following conclusiors:

(a) The process of altering the finding contemplated by Section 423(1)(b)(2) far from being unrestricted is very limited in scope for it must be related to Sections 236, 237 & 238, Code of Criminal Procedure and must operate within the limits prescribed in those sections.

(b) This process must stop whenever it conies up against a finding of acquittal.

(c) A finding of acquittal can be converted into a finding of conviction only in an appeal from acquittal u/s 417, Code of Criminal Procedure.

I am in respectful agreement with the conclusions arrived at by Mulla J. Section 417, Code of Criminal Procedure provides an appeal against an acquittal. It reads as follows;

The Provincial Govt. may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

The legislature in their wisdom have given the power of appeal to the Provincial Govt. They have further safeguarded the right of the acquitted person by giving powers of hearing of such appeals only to the High Court. The intention of the Legislature is, therefore, clear that where a person is acquitted of an offence, his acquittal cannot be set aside except on appeal by the Govt. as provided by Section 417 of the Code. If therefore in an appeal by the convict against his conviction the appellate Court assumes the power of converting his acquittal into conviction, the accused would be deprived of the safeguard provided by the Legislature. Apart from this it is to be kept in mind that Section 423, Code of Criminal Procedure relates to all appellate Courts. If the word "alter" is given a wider meaning the subordinate appellate Courts will have the powers of converting acquittal into conviction, inspite of the fact that the Legislature expressly denied this right to the lower appellate Court. All this indicates that the Legislature could not have intended to give such unrestricted meaning to this word. It is meant to be used in a limited scope.

Again the expression used in Section 423(1)(b)(2) is "to alter the finding & maintaining the sentence." The appellate Court, therefore, is not given the power of enhancing the sentence even in the event of its altering the finding. If a wider meaning is given to the word, it would lead to absurd results. Take the present case as an illustration. The convict was charged u/s 302, Penal Code but was convicted u/s 304(II) Penal Code & was sentenced to 10 years'' R.I. If unrestricted meanings are given to the words "alter the finding" the Court can change his conviction from 304(II) to that of 302, Penal Code; legal sentence under the latter section is either death or transportation for life. The provisions of this section make it imperative on the Court to maintain the sentence even in the event of alteration of finding. In such an event the sentence is obviously not warranted by law. To regularise this sentence the Court has to look to some other section of the Code. It is suggested that the Court should then act u/s 439 Code of Criminal Procedure & enhance the sentence. II the Legislature intended to give the power of enhancement of the sentence, it could have easily provided in the same section. But the Legislature on the other hand has expressly denied this right to the appellate Court. This indicates that the expression in Section 423(1)(b)(2) ''alter the finding maintaining the sentence" refers to alteration from major to minor offence. This power is given in the sections relating to joinder of charges already mentioned. Besides this fits in with "maintaining the sentence or reduce the sentence." Apart from this, Section 423, Code of Criminal Procedure expressly prohibits the appellate Court to enhance the sentence. It would, therefore, be violating the mandatory provisions of the section if the appellate Court by altering the finding of acquittal into conviction, enhances the sentence u/s 439, Code of Criminal Procedure in exercise of its revisional jurisdiction. If the Legislature had otherwise intended they could have easily made a provision for such enhancement of the sentence u/s 423; but instead of so doing, they have positively prohibited the appellate Court from enhancing the sentence. It is no doubt true that High Court while dealing with the appeal of the convict against his conviction can enhance the sentence under its revisional powers provided by Section 439, Code of Criminal Procedure. But this can be done only on the basis of the trial Court & not as a result of an alteration of finding by the appellate Court. The alteration of the finding with a view to enhance the sentence is expressly prohibited by Section 423, Code of Criminal Procedure. It is clear that the High Court in the exercise of its appellate powers is not competent to alter a finding so as to enhance a sentence imposed by the trial Court. It is also clear that in the exercise of its revisional jurisdiction the High Court can only enhance a sentence but cannot alter so as to convert acquittal into conviction. The Legislature could not have intended the simultaneous use of both the appellate & the revisional powers to the prejudice of the accused. Where the High Court alters the finding so as to change the offence from minor to major, it cannot u/s 423, Code of Criminal Procedure enhance the sentence. It is expressly prohibited by the section. When the High Court acting u/s 423 alters the finding from one offence to Anr. it in fact substitutes its own finding in place of the finding of the subordinate Court Thus when enhancing the sentence u/s 439, Code of Criminal Procedure after the alteration u/s 423, Code of Criminal Procedure the High Court revises its own order passed u/s 423, Code of Criminal Procedure. This is not allowed by Section 439, Code of Criminal Procedure. This section gives powers to the High Court for revising the orders of the subordinate Courts. I am, therefore, of the view that the appellate Court cannot enhance the sentence u/s 439, Code of Criminal Procedure after altering the finding u/s 423, Code of Criminal Procedure.

I am clearly of the view that in an appeal by the convict the appellate Court is not empowered to convert a finding of acquittal whether express or implied into that of conviction. In case of necessity arising in a particular case it can reverse the finding but within the scope of Sections 236, 237 & 238, Code of Criminal Procedure.

My answer to the first question is in the affirmative subject to the limitation prescribed in sections for joinder of charges. But in no case finding of acquittal whether express or implied can be converted into conviction by the appellate Court by acting u/s 423(1)(b)(2), Code of Criminal Procedure. I would answer the second question in the negative.

By Court

The case will now go back to the Bench for decision on merits subject to the expression of opinion by the majority.