State of Kerala vs Ussain

This criminal appeal, by the State against acquittal, came up before us on reference because it was felt that the objection to the maintainability of the appeal, based on various decisions, including U.J.S. Chopra Vs. State of Bombay, requires deeper consideration.

The order of acquittal was challenged by the de facto complainant in Crl. R.P. No. 515 of 1987 before this Court. Accused and the State were the Respondents. The revision application was admitted and notice given to the Respondents. First Respondent (accused) appeared through counsel and the second Respondent, State, through Public Prosecutor. After hearing all concerned, the criminal revision petition was dismissed on merits on 20th November 1987, though without a detailed consideration. Even at that time, this appeal filed by the State was pending. But none of the parties or the office of the High Court informed the court on the judicial side about it. That has resulted in prejudice and failure of Justice also. This is not a solitary instance. This Court on the judicial side had occasion to warn all concerned, including the office, about such lapses in many other cases. Proceedings against the same decision will have to be sent to the bench together or atleast the court should be informed that such proceedings are also pending. Lest there will be conflicting decisions and failure of justice, which cannot be repaired.

The preliminary point that is posed for consideration is whether, in the light of the revisional order of this Court, the order of acquittal by the trial court has now any independent existence enabling appellate or revisional jurisdiction to be exercised by this Court over it, or whether it has been superseded by of merged in the revisional order of this Court. In the latter contingency, this Court may not be entitled to sit in judgment, whether on the appellate or revisional side, over the decision of this Court itself through Anr. Bench.

The majority decision in U.J.S. Chopra Vs. State of Bombay, followed in many later decisions laid to rest all possible controversies on the matter and settled the law on the point clearly, though the direct question that came up for consideration, in that case was whether an accused, whose appeal against conviction was dismissed summarily, could show cause against conviction, as well again, when, in a subsequent appeal by the State for enhancement of sentence, he was called upon to show cause against enhancement.

As clearly indicated in Section 401 of the Code of Criminal Procedure, the High Court, in exercise of its revisional powers, can exercise any of the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 or the court of session u/s 307 subject to certain restrictions. When the aid of the High Court is invoked on the revisional side, it is done because the High Court is a superior court and it can interfere for the purpose of rectifying the errors of the court below. Though the limit of that jurisdiction is prescribed, the jurisdiction, which is exercised, is part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising the powers conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court. which is being invoked and exercised in a wider and larger sense. If there are two modes of invoking the jurisdiction of the High Court and one of these modes has been chosen and exhausted effectively, it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. That is necessary to prevent abuse of the process of courts as also to respect and accord finality to its own decisions Chopra''s case and Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, .

A judgment, pronounced by the High Court in exercise of its appellate or revisional jurisdiction, after issuing notice to the opposite party and after a full hearing in the presence of both the parties, would certainly be arrived at after due consideration of the evidence and all the arguments and would, therefore, be a judgment. Such judgment, when pronounced, would replace the judgment of the lower court, thus constituting the judgment of the High Court, the only final judgment to be executed in accordance with law by the court below. It is now well settled that, whether it be on the civil side or criminal side, the decision of the subordinate court will merge in the decision of the appellate court and will be superseded by it if the latter court has fully heard the matter after giving notice to the Respondent and has disposed of the appeal or application on the merits. It is the decision of the appellate or revisional court, in these circumstances, which is operative, and that of the trial court becomes extinct and is not available for challenge in appeal or revision U.J.S. Chopra Vs. State of Bombay, , Vyankatrao Khushalrao Sawarkar Vs. Pandurang Janbaji Gurao and Another, , Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, and Kantilal Khodabhai Patel Vs. Chiba Bava Bhandari, These aspects were considered and followed by a Full Bench of this Court in Kannan and Others Vs. Narayani and Others,

When, however, an appeal presented by a convicted person is summarily dismissed or a revision application made by him is dismissed summarily or ''in limine'' without hearing him or his pleader, what the High Court does is it refuses to entertain the appeal or the criminal revision and the order passed by the High Court "dismissed or rejected" cannot be said to be expression of the opinion of time court arrived at after due consideration of the evidence and all the arguments. It would only be refusal to admit the appeal or revision. Normally it will be only after the appeal or revision is admitted that notice will be issued to the opposite party. The position may not be different even if the Appellant, revision Petitioner or counsel is given a hearing before the appeal or revision is summarily dismissed. At that stage, what is considered by the court is only a prima facie case for interference in order to admit the appeal or revision to issue notice to the opposite side for a final hearing. In all these cases also, the decision, dismissing the appeal or revision, will amount to a judgment and it will be binding on the Appellant or the revision Petitioner. That may preclude him from filing Anr. appeal or revision for the same purpose. But it will not amount to a judgment replacing the judgment of the lower court. The action of the High Court, in such cases, will only amount to refusal to admit the appeal or revision and issue notice to the opposite party. Though that decision also will be a final decision of the High Court not subject to ie view or revision even by itself, it would not have the effect of replacing the judgment of the lower court or its merger in or super session by the decision of the High Court. In such, a case, the decision of the lower court will continue to have independent existence and in that event, it will be subject to the exercise of the appellate or revisional jurisdiction of the High Court as an independent decision at the instance of the State or an interested party, who is not bound by the decision and who is having a right of appeal or revision.

Now, under the new Code, when Sections 377 and 393 are considered together, the State has a right of appeal to the High Court for enhancement of sentence in any case of conviction on a trial and that right is unaffected even by the disposal on merits after notice and hearing of an appeal against conviction filed by the accused. In such an appeal in spite of the decision in his appeal against conviction, the accused is having the right u/s 377(3) to show cause not only against enhancement of sentence, but against conviction also and plead for an acquittal. The object is to discourage unmerited appeals or revisions for enhancement of sentence. The provision for appeal against acquittal in Section 378 is also unaffected by the finality provided in Section 393. Notwithstanding the final disposal of any appeal against conviction in any case, the appellate court can entertain and dispose of on the merits an appeal against acquittal arising out of the same case. But these exemptions are available only in cases where the decision in the appeal against conviction did not conclude the question of sentence or acquittal. Take for instance a case in which the accused was tried for offences punishable under Sections 302 and 201 of the Indian Penal Code but convicted and sentenced only for an offence under the second part of Section 304 and acquitted of the other offences. The dismissal of an appeal against conviction filed by the accused may not be a bar to an appeal by the State for enhancement of sentence for the offence u/s 304(2) provided the question whether the sentence has to be reduced, confirmed or enhanced was not decided on the merits in the earlier appeal. So also, the previous decision may not bar an appeal u/s 378 against acquittal for the offences under Sections 302 and 201. But, if those acquittals were also the subject-matter of appeal or revision and heard and finally decided after notice and hearing all concerned, Section 393 will not save a further right of appeal or revision. In an appeal for enhancement of sentence alone u/s 377, the propriety of the conviction cannot be challenged and inadequacy of sentence alone can be urged. If adequacy of the sentence is concluded by the decision in the appeal against conviction after hearing both sides that is also concluded. Correctness of the acquittal not considered and decided in the appeal against conviction alone could be decided in appeal against acquittal in the same case if the appeal against conviction was heard and decided after notice to all and hearing them. None of these questions will arise in this case when the revision was against acquittal and it was confirmed on the merits after hearing all concerned after notice to them. Though the finality u/s 393 is only to appellate orders and judgments and not to revisional orders of the High Court, the principle underlying finality in the section is applicable to the revisional orders of the High Court also.

In cases where the appeal or revision is admitted and notice issued to the opposite party and the High Court, after hearing both sides, maintains the conviction with or without modifying the sentence, it would replace the judgment of the lower court. Then there would be no scope for the High Court to exercise further appellate, or revisional jurisdiction at the instance of anybody or suo motu from the judgment or order of the lower court, which has been re placed, merged and superseded, unless the matter is covered by Sections 377 or 378 or the situation is such that the revisional jurisdiction, which is unaffected by the finality in Section 393, is legally available for exercise. When no stitch further appeal or revision is maintainable at the instance of anybody or suo motu, there will be no opportunity to give the accused a chance to show cause against enhancement of sentence and as a corollary it follows that there is no question of showing cause against conviction as provided in Section 377(3). In other words, when a judgment or order is pronounced in appealer revision, after notice and full hearing in the presence of all parties, except as provided in Section 393 or in exercise of the revisional jurisdiction, if available, there is no question of entertaining Anr. appeal or revision or issuing a notice for enhancement. The decision is otherwise binding on the court and all concerned. The contrary could happen only when the judgment or order of the lower court subsists and is not replaced. But what is stated above will have to be understood subject to the provisions of Section 393 of the new Code, which saves, from finality of judgments and orders of appellate courts in appeal, the right of appeal under Sections 377 and 378 as well as the reference and revisional jurisdiction of the High Court under Chapter XXX. That is only in cases where such appeals or revisions could be had in view of the decision already rendered.

There may not be any problem to appeals or revisions saved from finality by Section" 393 even if the decision of the High Court is on the merits after notice to all concerned and after hearing them. In other cases, if the exemptions u/s 393 are likely to be affected by the decision of the High Court in appeal or revision on the merits after notice and hearing, atleast before judgment in such cases is pronounced, the jurisdiction of the High Court should be invoked u/s 377, 378 or Chapter XXX, as the case may be, and the decision which would otherwise affect the right of invoking such jurisdiction avoided by giving information also about it. Such information to the High Court on the judicial side could help in having all such matters heard and decided together. Unlike the final disposal of an appeal against conviction in which the question of reduction or enhancement of the sentence was not considered and decided, the dismissal of an appeal or revision against acquittal on the merits after notice to all concerned and hearing them, in confirmation of the acquittal, will not save an appeal or revision against acquittal u/s 393. Even assuming, as argued before us, that the criminal revision petition against acquittal did not get a detailed consideration on the merits and the fate would have been different if the present appeal was also heard along with it, the position may not change. The criminal revision petition against acquittal was considered and decided on the merits after notice to the State Mid the accused and after hearing them also. That is a decision of the High Court and we are not exercising appellate or revisional jurisdiction over it. The matter came to us only by reference. Our hands are tied by the conclusiveness of the decision. We are avoiding consideration on the merits fearing that in doing so, we will be laying down bad law and precedents.

Even though there is no rule of constructive res judicata applicable in criminal proceedings, there is the principle of finality of judgments and orders inherent in every system and it is no provided in Sections 362 and 393 of the Code. That finality should be extended not only to the question of confirming the conviction or acquittal, but also to the question as to the adequacy of sentence, whether the sentence, which is passed upon the accused by the lower court, should be reduced, confirmed or enhanced. We are aware that now the finality is only subject to the right of appeal u/s 377 and the revisional powers saved u/s 393. But, in spite of such exemptions, the decision in a particular appeal against conviction may affect the claim for enhancement of sentence as the question of sentence itself may be concluded because of the nature of consideration and decision. That may only be in cases where the appeal or revision was not dismissed summarily or ''in limine'' without notice but decided on the merits after notice to all and hearing them also and the question of reduction, confirmation or enhancement of the sentence also was considered and decided. Real distinction is not whether the jurisdiction exercised was appellate or revisional, but how it was exercised and to what extent it affects a subsequent exercise under the appellate or revisional powers saved u/s 393. Here none of these questions will arise. There is no conviction for any offence and the appeal is not for enhancement of sentence u/s 377. The appeal is only u/s 378 against acquittal. Such an appeal is saved u/s 393 only when the previous decision on the merits or summarily or ''in limine'' was against conviction and the acquittal is not affected by that decision. When the previous appeal or revision itself was against acquittal and the acquittal was finally confirmed on the merits as in this case, there is no question of a second appeal or revision against acquittal being saved u/s 393.

In this case, the revisional order was on merits, after notice to all concerned and after hearing all of them. Criminal appeal is, therefore, dismissed.