The Empress of India vs Judoonath Gangooly

Jackson, J.—During the argument we disposed of the first part of the objection taken by Mr. Ghose, who has, at our request, carefully and feelingly advocated the case on behalf of the prisoner. That objection was, that we had not before us an appeal such as is contemplated by Section 272 of the Criminal Procedure Code, inasmuch as the petition of appeal had not been preferred by the Government "prosecutor or other officer, specially or generally appointed in this behalf." It appeared, and still appears to us, that, under the authority conveyed by the Secretary''s letter to the Legal Remembrancer, the appeal was duly made by one of the Government pleaders, and has been regularly and properly sustained before us by the counsel instructed by, and appearing on behalf of, the Legal Remembrancer.

Mr. Ghose next contended, that in the first place Section 272 was not meant to apply, and did not apply to cases where the accused person has been tried and acquitted by the verdict of a jury; and in the next place that an appeal would not lie, inasmuch as there has not been any operative judgment of acquittal, the prisoner not having been set at liberty, but having been convicted of a minor offence arising out of the same set of facts on which he was charged with murder. We observe that one of these points, viz., what is included in a judgment of acquittal has been adverted to though not expressly decided by Phear, J., in the case of Queen v. Koonjo Leth 11 B.L.R. 14. But irrespective of that expression of opinion, we ourselves do not entertain the least doubt upon this subject. It appears abundantly from the various sections of the Code of Criminal Procedure relating to judgments, that the judgment passed by the Court of Session following the verdict of a jury which acquits is, undoubtedly, a judgment of acquittal. The Legislature has allowed an appeal in cases of acquittal by the Local Government, u/s 272, in the widest terms, and without any limitation whatever. Then as to the contention that there was no acquittal in this case, it appears manifestly from the record that, as regards the particular charge of murder, the prisoner was acquitted, and ordered to be discharged or set at liberty; and that but for the finding of the jury and the sentence of the Court in respect of the other offence included in the charge, the prisoner would, so far as the charge of murder was concerned, have been set at liberty on his acquittal. He was charged with the offence of murder, which is an offence distinct from the offence of culpable homicide not amounting to murder. The Judge not having thought fit to refer the case u/s 263, the judgment stood as a judgment of acquittal. The Local Government is charged with the responsibility of considering in such cases, whether the public interests require that an appeal should be preferred, and as in the exercise of its judgment it has thought fit to prefer this appeal, we think the appeal lies. It remains to consider what decision we ought to arrive at upon the appeal so preferred, and I confess that I should have greatly desired that the learned Sessions Judge who tried the case in the Court below had thought right to set out in the proceedings the grounds upon which he abstained from doing that which the law enjoins him to do u/s 263, and not imposed upon the Judges of the High Court the onerous and painful duty of passing the proper sentence in the case. (The learned Judge proceeded to consider the evidence, and held that the accused was guilty of murder and sentenced him to death.)