In Re: Illuru Lakshmiah and Another

Somasundaram, J.—Cr. R. O. Nos. 1379 and 1395/1949. These two revision petitions arise out of C. O. No. 25 of 1948 on the file of the

Sub Divisional Magistrate, Adoni. The petitioners in Cr. R. O. No. 1379 are the first and second accused in the case and the petitioners in Cr. R.

O. No. 1395 are the third and fourth accused in the case. There were nine accused in all in that case and excepting the four accused the rest were

acquitted. They were all tried on three charges, the first charge being an attempt to transport millets without a permit from a village called Halaharvi

in Beilary District to Kurnool District in violation of the notification mentioned in that charge, The second charge is for the same transport without a

permit from the same village which is said to be in Alur taluk to Asparbi village in the same taluk and this is said to be in contravention of the

notification mentioned in that charge, The third charge is causing the lorry in which these millets were taken to carry the foodgrains from Beilary

District to Kurnool to be driven during night which is said to be contrary to the G. O. mentioned in the charge. The first Court convicted all the four

accused on the first charge and sentenced them, the first and second accused to six months rigorous imprisonment and third and fourth accused to

four months rigorous imprisonment. It may be stated that the third and fourth accused are the driver and conductor of the lorry whereas the first

and second accused are the persons who are said to be taking these food-grains. The trial Court acquitted accused 3 and 4 on the second charge

which was for taking the commodity from one village to another without a permit as the petitioners are convicted on the first charge. So far as the

first and second accused are concerned, they were acquitted of the third charge, i.e., taking during night. The third and fourth accused, the driver

and the conductor were convicted of the third charge and given the same sentence, the sentences to run concurrently. All the four accused

preferred appeals to the Sessions Court, the appeal preferred by the first and second accused being C. A. nO 73 of 1949 while C. A. no. 66 of

1949 was preferred by the third and fourth accused. In appeal, the learned Sessions Judge acquitted all the appellants of the first charge and

following certain rulings of this Court altered the finding and convicted the accused under the second charge of which, as already stated, they were

acquitted by the trial Court on the ground of their having been convicted under the first charge. So far the third and fourth accused are concerned,

the Sessions Judge confirmed the conviction on the third charge also. The learned Judge while altering the finding, maintained the sentence of six

months passed on the first and second accused and the sentence of four months passed on the third and fourth accused. These revisions are

against the judgments in the two appeals.

On the merits, there is very little to be said in favour of the first and second accused and the only question that was argued so far as they are

concerned is that the appellate Court erred in finding the petitioners guilty under the second charge when they were acquitted of the fame by the

trial Court and the lower appellate Court has no jurisdiction to convert the acquittal into a conviction u/s 423(1)(b)(2), Criminal P. C. So far as

accused 3 and 4 are concerned, the same point is raised so far as their conviction on the second charge is concerned,

Before I deal with this point, it is better I dispose of the case of accused 3 and 4 so far as the conviction under the third charge is concerned

which is already stated, driving the lorry having foodgrains from Bellary District during the night. It is said to be a violation of G. O. No. 893 dated

3-4-1947. As a matter of fact, it is in pursuance of this G. O. that the Collector and District Magistrate of Bellary passed an order on 15-7-1947

prohibiting the carrying of foodgrains during night, i. e., between 7 P.M. and 6 A.M. on certain roads which included the road on which the

petitioners were driving. This notification was published in the District Gazette Extraordinary on 30-7-1947. The occurrence was on 28-7-1947. It

is obvious therefore, that the notification itself was long after the occurrence and therefore accused 3 and 4 could not be said to have violated the

provisions of the notification which was not in force on the date on which the occurrence took place, Accused 3 and 4 must therefore be acquitted

of this charge i.e., the third charge framed against them.

Now I will take up the contention that the lower appellate Court u/s 428 (1) (b) (2) cannot alter the finding of acquittal into one of conviction. It

must be mentioned that Clause (b) of Section 493(1) deals with appeals against convictions while Clause (a) deals with appeals against acquittals

preferred by the State. u/s 423 (1) (b) (1) the appellate Court can reverse the finding and sentence and acquit or discharge the accused or order

him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or commit him for trial. It is under Sub-clause (2) that

the lower appellate Court is given power to alter the finding, maintaining the sentence or with or without altering the finding, reduce the sentence.

We are not concerned with Sub-clause (a) and therefore it is unnecessary to refer to it. the question for consideration now is what is meant by

alter the finding, maintaining the sentence"" and in what cases and under what circumstances can this power be exercised by the appellate Court.

Section 423, Criminal P. C. deals with the powers of the appellate Court, not only with the powers of the High Court hearing the appeals but also

with the powers of subordinate Courts which hear the appeals. This question came up for consideration in several-cases both in our High Contt as

well as in the High Courts of other states. The earliest decision and perhaps the leading decision which is referred to in subsequent decisions. is

Queen Empress v. Jabanulla, 23 Cal. 975. In the above decision Banerjee J. had to concede that the interpretation of the words ""alter the finding,

maintaining the sentence"" is not free from limitation but is subject to some restrictions in particular cases. At page 979, the learned Judge states as

follows :

Section 123, Clause (b) has no restriction imposed upon it. There is under that clause, only one restriction to the power of the appellate Court on

an appeal from a conviction and that is that it cannot enhance the sentence. It is possible to imagine cases in which this restriction may stand in the

way of the appellate Court''s altering the finding. Thus, if an accused person is charged with having murdered A, and also with having caused

grievous hurt to him, and is acquitted of the former offence but convicted of the latter and sentenced to seven years rigorous imprisonment by the

first Court, the appellate Court cannot, on the appeal of the accused, alter the finding into one of guilty of murder, because as it cannot enhance,

the sentence, the result will be that a person convicted of murder, for which the only punishment is either death or transportation for life, will be

punished merely with imprisonment for seven years a sentence which is not in accordance with law. That, however, is not the case here and so we

need not consider it further. But in a case like this, in which no such difficulty arises, I think the appellate Court can, in an appeal from a conviction,

alter the finding of the lower Court and find the appellant guilty of any offence of which he may have been acquitted by the Court,

This was cited before Sir Arnold White C. J. in Sami Aiyar v. Emperor, 26 Mad. 478 but was simply distinguished on the ground that the

appellate tribunal in that case, the High Court, was a tribunal which had jurisdiction to set aside an acquittal. He held that the words ""reverse the

finding and sentence"" in Section 423 (1) (b) (1) mean reverse the finding upon which a conviction is based and do not empower the appellate

tribunal to reverse and set aside an order of acquittal. Apart from the fact that this judgment does not refer to the words ""alter the finding"" there is

no discussion of the points and it cannot therefore be of sufficient authority for the contention that alteration of the finding cannot mean alteration of

the finding of acquittal into one of conviction. In Padmanabha Panji Kannayya v. Emperor, 33 Mad. 261 Munro and Abdur Rahim JJ, were

considering a case where the accused were charged under Sections 467 and 468, Penal Code. The Sessions Judge convicted the accused of

those offences but the learned Judges held that the offences under those sections were not made out but the evidence disclosed at best that they

were guilty only of abetment of those offences. It was contended before them that they could convict the accused of abetment of the offences. But

they held that u/s 433, Criminal P. C. the appellate Court has power to alter a finding and that that power cannot be used arbitrarily but only in

accordance with other provisions of the Code, and they say that those provisions are to be found in Sections 237 and 236, Criminal P. O. and that

neither of those two sections cover a case like the one before them, They held following the ruling in Reg. v. Chandnur, 11 Bom. H.C.R. 240 that

it was not open to a Court to find a man guilty of the abetment of an offence on a charge of the offence itself. But subsequently there were several

oases which held that if the facts relied on could support a charge for that offence, there is no objection to an accused being convicted for an

abetment of an offence even if he is charged with the substantive offence. Vide decisions cited under Note 8 to Section 236, Criminal P. C. in the

A. I. R. Commentaries pages 1416 of vol. II, 1946 edition. In Appanna v. Makalakshmi, 34 Mad. 546 Munro and Krishnaswami Aiyar JJ.

expressed their agreement with the decision in Queen-Empress v. Jabanulla, 23 Cal. 975 and also observed that the Calcutta case cannot be

distinguished in the manner in which it is sought to be distinguished in Sami Aiyar v. Emperor, 36 Mad. 478 As pointed out above, they also refer

to the fact that in Sami Aiyar v. Emperor, 26 Mad. 478 there is no reference to the wording of the Section 493 (1) (b) (2). In Appanna v.

Mahalakshmi, 34 Mad. 546 the Court framed two charges under Sections 148 and 326, I. P. C. acquitted the accused u/s 146 but convicted

them u/s 325. The accused then appealed to the Sessions Judge who was of the opinion that the accused could have been convicted u/s 147 but

thought he could not interfere with the acquittal. The learned Judges held that the view of the Sessions Judge is clearly wrong and the appellate

Court may ""alter the finding, maintaining the sentence"" and that there is nothing to restrict the finding which could be altered to a finding of

conviction. They therefore set aside the acquittal and directed a rehearing of the appeal. In Hanumappa v. Emperor, 35 Mad. 248 the accused

were charged under Sections 148, 302, 326 and 149, I. P. C. The trial Court acquitted all the accused of murder and of rioting and convicted all

the accused of murder and of rioting and convicted the accused of hurt and grievous hurt. An appeal was preferred by some of the convicted

accused to the High Court. Sundara Aiyar and Ayling JJ. after reviewing the evidence found that the evidence showed that all the accused were

members of an unlawful assembly and were guilty of rioting and that they were all responsible for the injuries inflicted on several prosecution

witnesses in the course of the fight. They found specific acts were not proved and after acquitting one accused, they altered the conviction of the

other accused by finding them guilty of offences u/s 147, 325 and 326 read with Section 149, I. P. C. Dealing with the contention of the counsel

for the appellants that it was not competent for them to convict the accused of being members of an unlawful assembly or of rioting and hold them

constructively guilty of the offence of causing grievous hurt as they were acquitted of those offences by the lower Court, they say that u/s 423 (1)

(b) (3) the appellate Court has the power to alter the finding of the lower Court maintaining the sentence. A further contention that this provision

entitles the Court to convict an accused of an offence of which he is acquitted is restricted only to cases falling u/s 397 and 238, Criminal P. C.

was also repelled.

They say:

The finding which an appellate Court may alter u/s 423 (b) may relate either to an offence with which the accused was apparently charged in the

lower Court or to one of which he might be convicted without a distinct charge. In cases not falling under Sections 237 and 238, Criminal P. C. no

doubt the appellate Court cannot convict a parson of an offence with which he was not charged in the first Court but where he has been charged

and the first Court has recorded a finding on the charge, there is no reason for holding that the appellate Court cannot alter the finding. There is

obviously no injustice in doing so.

The learned Judges expressed their views in accordance with Queen-Empress v. Jabanulla, 23 Cal. 975. The next decision is In re Baliredai, 37

Mad. 119. In that case, five accused were charged with rioting and murder. The Sessions Judge found them guilty of simple rioting and capable

homicide not amounting to murder and convicted them under Sections 147 and 304, I. P. C. The accused preferred an appeal to the High Court

and the Court as a Court of revisional jurisdiction gave notice to show cause why they should not be convicted of murder and be sentenced for

that offence. The Bench, consisting of Benson and Sundara Aiyar JJ. followed the ruling in Appanna v. Mahalakshmi, 84 Mad. 546 and Queen

Empress v. Jabanulla, 23 cal. 979 Referring to the Contention that u/s 439, Criminal P. C., the Court cannot convert a finding of acquittal into one

of conviction, they say that Section 423 (b) has no restriction and the only restriction under that clause is that the Court of appeal cannot enhance

the sentence. They state at p. 123 as follows:

The effect of the two sections (meaning 423 and 439, Criminal P. C.) read together is that the High Court when hearing an appeal against a

conviction may, u/s 423 (b) alter the finding and then as a Court of revision may u/s 439 enhance the sent once so as to make it appropriate to the

altered finding.

Dealing with Section 439 (4) they say it applies only to a complete acquittal and not a partial acquittal. To the same effect is the decision of the Full

Bench of the Lahore High Court in Bava Singh v. The Crown, 28 Lah. 129 In Allahabad also, a Full Bench consisting of five Judges held by a

majority, Mulla and Hamilton JJ. dissenting that the Court of appeal is empowered u/s 423 (1) (b) (2) to alter the finding of acquittal into one of

conviction--See Emperor v. Zamir Quasim, ILR (1944) ALL. 403.

The main decision on which the learned counsel for the petitioners relies ia support of his contention is a decision of the Privy Council in Suhan

Singh v. Emperor, 50 ALL. 722. That is a case where the Sessions Judge tried an accused on a charge of murder but convicted him only u/s 304,

Penal Code. On behalf of the Local Government an application for revision of the judgment of the learned Sessions Judge was filed and in that it

was sought to enhance the sentence passed on the accused by converting the finding into one u/s 802, Penal Code. The High Court converted the

finding to one u/s 302 and sentenced the accused to death. Their Lordships of the Privy Council held that the conviction u/s 304, Penal Court,

amounted to an acquittal u/s 302 and that

In view of the provision contained in Section 439 (4) that nothing in this section shall be deemed to authorise a High Court to convert a finding of

acquittal into one of conviction, the learned Judges of the High Court who were dealing only with the application for revision (underlining there in

italics) is mine) had no jurisdiction to convert the learned Judge''s finding of acquittal on the charge of murder into one of conviction of murder"",

The decision in In Re Bali Reddi, 37 Mad. 119 was cited before their Lordships and referring to that, their Lordships state as follows :

''''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 (4) refers only to a case where the trial has ended in a complete acquittal of the

accused in respect of all charges or offences and not to a case such as the present, where the accused has been aquitted of the charge of murder,

but convicted of the minor offence of culpable homicide and not amounting to murder, their Lordships are unable to agree with that part of the

decision. The words of the sub-section are clear and 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 this sub-section"". From this observation of their Lordships of the Privy Council it is contended that

the decisions of the Madras High Court holding that u/s 493 (1) (b) (2), the appellate Court can alter the finding of acquittal, are no longer good

law and he relies on a decision of Sulaiman C. J. and Bennett J. in Sarda Prasad Vs. Emperor and Panu Nayak and Others Vs. Chintai Mallik, .

The other decisions Padmanabha Panji Kannayya v. Emperor, 33 Mad. 264 and Emperor v. Sheodarsahan Singh, 44 ALL. 332 which are in

support of his view are earlier than the Privy Council decision in Kishan Singh v. Emperor, 50 ALL. 722 whereas subsequent to the Privy Council

decision in Bawa Singh v. The Crown, ILR (1942) Lah. 129 the learned Judges held following the view expressed earlier by our High Court and in

Queen Empress v. Jabonullah, 23 Cal 975 that the appellate Court has such power. The question now is whether on account of the decisions of

the Privy Council, the earlier decisions of our High Court in Appanna. v. Mahalakshmi, 34 Mad. 545 Hanumappa v. Emperor, 35 Mad. 243 and

In Re Balireddi, 37 Mad. 119 are no longer good law. [6] The decision of the Privy Council in Kishan Singh v. Emperor, 50 ALL. 722 is clearly a

case wherein Section 423 (1) (b) (2) did not come in for consideration at all. It was a case where the accused who was convicted u/s 304, Penal

Code, did not appeal and the State Government too did not prefer an appeal against acquittal of the accused for the offence u/s 309. The State, on

the other hand, chose to move the High Court in its revisional jurisdiction and Bought to enhance the sentence by getting an alteration also in the

find-ing of acquittal of the offence u/s 302. The Privy Council, therefore, was dealing only with the powers of the High Court under 439. They

were not dealing with the powers of an appellate Court. The two powers are distinct and separate. The appellate Court u/s 423 cannot enhance

the sentence whereas the revisional Court can enhance the sentence. The revisional Court can-not alter the finding of acquittal into one of

conviction except where it exercises the power of an appellate Court, whereas to an appellate Court an express power was given ""to alter the

finding maintaining the sentence"". Now what is the meaning to be given to this phrase ""alter the finding"". It is stated that the alteration of finding

means only the finding from one conviction to another conviction in cases where such a change is permissible. Such a course will be legally

sustainable only in cases which fall within the purview of Sections 236 and 238, Criminal P. O., though of course Hanumappa v. Emperor, 35

Mad. 243 has held that it need not be restricted to these provisions. Even assuming such a course is permissible only in a case which falls under the

above sections, when the trial Court convicts an accused of a certain offence, it means an implied acqittal of the other offences of which he could

be tried or convicted under the provisions of those sections. Once it is an acquittal, either express or implied by the trial Court, if it is said that it

cannot be altered except by an appeal against acquittal, there is no case or class of cases to which the alteration of finding can apply The phrase

will be merely a dead letter in the section. As pointed out by Iqbal Ahmed C. J. in Emperor v. Zamir Quasim, ILR (1914) ALL. 403 ''

It is the sentence passed against the accused which alone matters. The law no doubt attaches sanctity to acquittals but there is no invasion of that

sanctity if, within the framework of the sentence, a finding of acquittal is converted into one of conviction"",

Therefore so long as the sentence is maintained, it is of little importance and it causes no preju. dice whatsoever to the accused if the appellate

Court alters the finding. Alteration implies a change According to the dictionary, it means ""a change in character"" or ""to make different"". A change

must necessarily therefore be to some other offence of which he was either being charged in the lower Court and acquitted or of which he could be

charged under the provisions of pg. 236 and 238, Criminal P. C. and an acquittal is implied though no definite finding in respect of it is given by the

first Court. Their Lordships of the Privy Council in Kishaneingh v. Emperor, 60 ALL. 722 were dealing only with the revisional jurisdiction of the

High Court and not with the appellate jurisdiction of Courts. In my view the decision of the Privy Council has not affected the law which prevailed

before that decision with regard to the interpretation of Section 423 (1) (b) (2) and as these decisions particularly those in Appanna v.

Mahalakshmi, 34 Mad. 545 ; Hanumappa v. Emperor, 35 Mad 243 and Re Basireddi, 37 Mad. 119 are decisions by a Bench of this Court they

are binding on me. I have indicated my view also which is in accord with the view taken in the above decisions. I do not therefore think it

necessary to post this case before a Bench. As already stated, accused 3 and 4 are acquitted of the third charge only. The conviction of the four

accused on the second charge is confirmed. The sentence of Accused 2 is by no means excessive. Their petition is therefore dismissed. As regards

A-3 and A-4 their sentence is reduced to period undergone.

Crl. R. C. No. 1380 of 1949: -- This petition is preferred by accused l and 2 in C. C. No. 26 of 1948. The petitioners are the same as the

petitioners in Crl. R. C. No. 1879, though the charge is different, viz., that in this case the charge is for having purchased millets without a permit.

On the merits there is nothing to be said and no illegality has been pointed out with regard to the conviction. The conviction and sentence are

confirmed and the petition is dismissed.

Crl R. C. Nos. 1381 and 1388 of 1949:--These two revision petitions are preferred by the first and second accused in C. C. No. 33 on the file

of the Sub-divisional Magistrate of Adoni who convicted them of offences under Food Control Orders. The only point is about the alteration of the

finding by the appellate Court. As I have held in Crl. R. C. nOS. 1379 and 1395 that it is permissible to alter the finding, the conviction and

sentence of the petitioner in Crl. R. C. No. 1361 is confirmed. the conviction of the two accused is confirmed but their sentence is reduced to the

period already undergone.

Crl. R. C. No 1382 of 1949: -- This revision arises out of C. C. no. 34. I find no reason to interfere either with the conviction. But the sentence

is reduced to period undergone.

Crl. R. C. No. 1389 of 1949:--This levision arises out of C. C. No. 31. The only question in this case is one of sentence. The conviction is

confirmed and the sentence is reduced to the period already undergone.

Crl R. C. No. 1390 of 1949:--This revision is by the second accused and the third accused in C. C. no. 23 on the file of the Sub Divisional

Magistrate of Adoni. The question in this case is one of sentence. The conviction of accused 2 and 3 are confirmed but the sentences are reduced

to the period already undergone.