(1) The question for decision in this revision petition is, whether a Sessions Judge acts illegally if he accepts the express acquiescence of the accused appellant in the Order of conviction appealed against, while disposing of an appeal under S. 423 of the Code of Criminal Procedure?
(2) The circumstances under which the contention has been raised are not in dispute. The petitioner Smt. Parvathama Hiremath is the Publisher, Printer and Editor of a Kannada Weekly newspaper by name 'Veeramathe'. In the issue dated 26-1-1959 she published an article against the respondent who, according to the evidence, is a reputed dealer in watcher and clocks in the City of Bangalore. The article contained serious imputations against the business-morale and integrity of the respondent. It alleged that he had been evading taxes and It alleged that he had been evading taxes and involved in fifteen cases pending against him. It concluded with an announcement that 'Veeramathe' had appointed her own C.I.D. to investigate how the respondent had amassed huge fortune. The latter filed a complaint in the Court of the Additional First Class Magistrate, Bangalore charging the petitioner with an offence punishable under S. 501 of the Indian Penal Code. At the trial, the petitioner claimed that the article was only a fair comment on the complaints received by her from the public against the respondent (complainant) and that it had been published in good faith for public good. After a careful consideration of the evidence adduced by the parties and the authorities cited for them, the learned Magistrate came to the conclusion that the imputations 'are per se defamatory' and 'cannot be justified on any ground.' He further concluded that 'the accused had not exercised due care and caution' and that the use of the 'the wild and unrestrained language x x x x x in the way as stated in the Kannada language in the article, connotes malicious and vindictive intent.' He held that she was not protected by any of the exceptions to S. 499 of the Indian Penal Code. He found her guilty of the offence punishable under S. 501 of the Indian Penal Code and sentenced her to pay a fine of Rs. 500, in default to undergo simple imprisonment for three months. He expressly stated that the sentence of fine world meet the ends of justice as the accused was a woman.
(3)The Petitioner challenged the order of conviction and sentence in Criminal Appeal No. 132 of 1962 before the Sessions Judge, Bangalore, Mr. S.K. Venkataranga Iyengar was the Advocate for the appellant (Petitioner). At the hearing of the appeal on 18-1-1965, the accused and her advocate were present in Court. The former offered an unconditional apology which was not acceptable to the respondent. The Advocate confined his arguments only to a plea for mercy and the respondent's advocate and the Public Prosecutor for the State had 'no serious objection' to it. The learned Sessions Judge was 'of the opinion that having regard to all the circumstances of the case, it is expedient to release the accused-appellant on probation of good conduct and directed her to enter into a bond in a sum of Rs. 1,000 and be of good behavior during a period of one year.
(4) It is now argued for the petitioner that having entertained the appeal and set it down for hearing, it was obligatory on the Sessions Judge to have determine the correctness of the order of conviction as the provisions of Ss. 421 to 423 of the Code of Criminal Procedure do not permit an appellant to concede to the conviction, or the Court of appeal to accept such concession whether made by the party, his advocate or by both. Mr. Devadass appearing for the respondent submitted that the offence with which the accused had been charged was Non recognizable and that it was therefore, open to the accused to acquiesce in the order of conviction and plead for mercy. The learned Government Pleader Mr. Ramachandran Rao canvassed for the view that the accused could waive his right to urge any of the points in his appeal and his advocate would be within his authority to consent to any point in the appeal as recognised in Bansilal Gangaram v. Emperor, AIR 1928 Bom 241.
(5) So the two points that require determination in this case are: (1) whether an accused can concede tot he order of his conviction during the course of the hearing of his appeal and (2) if so, whether the Code of criminal Procedure or any other law imposes any restriction on the powers of the Court of appeal to accept such concession in disposing of the appeal.
(6) While considering the first point, it would be necessary to determine the nature of the accused's right in a Criminal appeal. Section 404 of the Code of Criminal Procedure lays down that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. The right of appeal, therefore, is neither a fundamental nor an inherent right in an accused as contended by the learned advocate for the petitioner. It is a statutory right and its exercise must be in conformity with the provisions of law conferring such right. Chapter XXXI of the Code of Criminal Procedure provides for appeals and so far as this case is concerned, Sections 421 to 423 are relevant. The petitioners appeal had been duly entertained by the Sessions Judge and notices as contemplated by S. 422 had been issued to the parties. Under S.4 23, the Court is bound to hear the appellant or his pleader if he appears in Court when the case is fixed and called for hearing. It is open to the appellant's pleader to urge such points as he thinks fit in support of his appeal. If the pleader considers that certain points raised in the memorandum of appeal have no substance or cannot be supported reasonably from the evidence on record, it is certainly open to him to argue only such points as his opinion are best fitted to serve the interests of his client and secure for him the benefit of the appeal. In England, Rule 23 of the Criminal Appeal Rules, 1960 even permits an appellant to abandon his appeal by giving notice of abandonment, but once the appellant is permitted to abandon his appeal, the Court 'will not entertain applications for withdrawal of notices of abandonment unless something amounting to mistake or fraud is alleged, which, if established, would enable the Court to say that the notice of abandonment should be regarded as a nullity' See R. v. Moore, (1957) 2 All ER 703. There is however no corresponding provision intervened he Code of Criminal Procedure. It is unnecessary for the purpose of this petition to consider this aspect of the appellant's right under the Code.
(7) It cannot be disputed that a arty having a right of appeal can waive that right or confine his claim to such relief on he thinks fit
'Every one has a right to waiver and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.'
(See page 376 of Maxell on Interpretation of Statues, Eleventh Edition). This right was recognised by the Calcutta High Court in Re Chender Nath Deb, 5 Cal LR 372 in which the Sessions Judge expressed his opinion relating to the enhancement of sentence before the appeal was admitted. The appellant's advocate prays for withdrawal of the appeal but the Sessions Judge declined to allow his to do so on the ground that there was no provision in the Code. In the appeal the conviction was confirmed and the sentence was enhanced. In allowing the revision petition filed by the accused, their Lordships laid down-
'It seems to us that every privilege given to a party by the law may be waived at the option of the party. A right to appeal, is a privilege given by law and the party concerned is at liberty to insist upon or abstain from the exercise of that right. The Sessions Judge ought not to have insisted upon the appeal being admitted.
x x x x
(8) Conceding to an order of conviction during the course of the hearing of an appeal may be likened to pleading guilty to a charge during the course of a criminal trial. Sections 255 and 271(2) of the Code permit an accused respectively before a Magistrate and the Sessions Judge in original trials to plead guilty to the charge but both these provisions leave it to the discretion of the court concerned to convict the accused on such plea. The discretion to accept or reject such plea must be exercised by the court judicially. The Legislature seems to have case a duty on the court to consider the facts and records before it in arriving at such decision. There is undoubtedly some principle of public policy underlying these provisions. Circumstances of poverty, ignorance and illiteracy do disable persons before courts from securing legal assistance and the probabilities of external influence inducing an accused to plead guilty cannot be altogether eliminated. The duty cast on the court is intended to safeguard the interest of the accused as far as the law can provide and the sincerity and vigilance of the presiding Magistrate or Judge can guarantee. So if the accused can concede to his guilt even before he is adjudged to be guilty by the court, it would b unreasonable to think that the law denied to him that right after he is held to be guilty by the trial Court.
(9) The next question would be, does the law impose any limitations on the powers of a court of appeal in acting on such concession whether made by an accused, or his pleader? Section 423 itself which deals with the powers of the appellate court in disposing of an appeal provides an answer to this question. It reads thus:
'423 (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, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 411-A sub-section (2) or Section 417, the accused, if he appears, the court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
x x x x'
The several judicial processes involved in the disposal of an appeal, as envisaged by this Section, enjoin on the appellate court the following duties and obligations: (1) It has to peruse the records of the case; (2) it must hear the appellant or his pleader, if he appears; (3) it must hear the Public Prosecutor, if he appears and (4) it can dismiss the appeal if it consider that there is no sufficient ground for interfering and if there is sufficient ground for interference pass any of the Orders mentioned in Cls. (a) to (d) of sub-section (1) of that Section. So, apart from hearing the appellant or his pleader and the Public Prosecutor, whoever might appear at the hearing, the Court must peruse the records before it decides to dismiss the appeal or interfere with the order appealed against-
The duty to hear the parties is coupled with the objection to peruse the records. In other words, the decision in the appeal has to be reached after scrutinising the records in the light of and along with the submissions made by the parties. It seems to me, therefore, that the law does not permit a mechanical acceptance of any argument, admission or concession made by or for the accused in the course of he hearing of the appeal; the decision to accept or reject it must be taken by the Court and that too after perusing the records and hearing the parties. The very principle of public policy which seems to underlie acceptance of the plea of a guilt seems to form the basis of the obligation imposed upon the court of appeal. It is thus open to an appellate court to accept the concession made on behalf of an accused if it thinks it fit to do so after perusing the records of the case before it.
(10) The learned advocate for the petitioner submitted that the accused could consent to nothing in a criminal case and sought to support this proposition by relying on the decision of the Lahore High Court in Allu v. Emperor AIR 1924 Lah 104. That was a case in which there had been a breach of the mandatory provision of Section 353 of the Code as the deposition recorded in the counter case had been brought on record, at the request of the accused, as defence evidence without examining the witnesses in the case. It was ruled that neither the accused nor his counsel can validate a course of procedure which the law does not authorise, nor consent to a procedure which the law does not lay down. In re K.K Ummar, AIR 1923 Mad 32 the depositions recorded in the case previously were brought on record without examining the witnesses at the de novo trial Ordered by the Successor Judge. It was held that the deviation from the rule of procedure that no evidence can be recorded against a prisoner except in his presence vitiated the trial and that 'the common understanding in the provision that a prisoner can consent to nothing is referred to in connection with consent to an irregularity similar to that now under consideration.' The same principle has been laid down in Reg v. Bertrand, (1867) 1 PC 520 also relied upon by Mr. Javali. The decision in Rangappa Goundan v. Emperor : AIR1936Mad426 related to reception of post mortem notes in evidence with the consent of the counsel could not relieve the prosecution from the burden of proving the results of the autopsy by examining the Medical Officer. My attention was drawn next to the decision in Emperor v. Jaswant Rai and Co, AIR 1925 Lah 85 in which the trial Court convicted the accused without recording any evidence and the plea of the accused, on the admissions of the counsel who requested for decision of the legal issues arising under Section 87 of the Indian companies Act 1913. Their Lordships set aside the order of conviction in appeal on the ground that the trial was a travesty of justice. Lastly reliance was placed on the decision of the Lahore High Court in Emperor v. Ghula Mohammad, AIR 1942 Lah 296 (FB)in which the Full Bench opined that the court is not bound to dismiss the appeal when the appellant intimates his desire to withdraw the appeal during the course of the disposal of the appeal.
(11) It is thus obvious that none of the decisions cited for the petitioners has any bearing on the precise point at issue. The other set of decisions cited by Mr. Javal are equally unhelpful in deciding the instant point. The Supreme Court in R.G. Jadav v. State of Bombay, : 1960CriLJ1156 dealt with the powers of the court of appeal and laid down that such court has no power to direct that the appeal shall be heard only on the point of sentence. Their Lordships referred to the decisions of the Privy Council in Emperor v. Dahu Raut in which the opinion expressed was that when an appeal is not dismissed summarily, it has to be heard an appeal from conviction, the appellate court is under a duty to examine the conclusions of all the findings of the trial court, while assessing the guilt of the accused. Mention may also be made of the decision of the Bombay High Court in AIR 1928 Bom 241 relied upon by the learned Government Pleader. In that case the accused's advocate conceded during the hearing of an appeal that one of the bottles attached from the accused contained cocoaine. It was contended before the High Court that the Sessions Judge should not have acted upon the admission. Their Lordships repelled the contention on the ground that the advocate had made the admission in the best exercise of his judgment and discretion and that its acceptance was not unreasonable and had not resulted in any prejudice to the accused.
(12) It is obvious from the foregoing discussion that most of the decisions cited for the petitioner lay down one uniform rule and that is an accused cannot by his consent validate or authorise a violating of or departure from the procedure prescribed by law. In the present case, there has been neither any violation of nor departure from any provision of law relating to procedure. There is full compliance with the provisions contained in Section 422 and 423 of the Code. The accused and her advocate were both present at the hearing. It is not even alleged that reasonable opportunity of full hearing was denied. It is not the case of the petitioner that her advocate conceded to the order of conviction under any fraud, mistake or collusion. In fact, the petitioner herself seems to have personally offered before the court an unconditional apology and from the judgment, it appears that the learned Judge felt that the 'appellant was repentant for having defamed the complainant'.
(13) In these circumstances when the appellant for her benefit concedes to the order of conviction expressly and openly during the course of the hearing of the appeal, all that has to be ascertained is whether the appellate court fulfilled its obligations imposed on it by Section 423 of the Code. The judgment is written in six paragraphs. The first paragraph refers to the complaint, the charge, the plea of the accused and the number of witnesses examined by each party. The second paragraph refers to the judgment of the trial Court, its findings that the imputations are per se defamatory not falling under any of the exceptions to Section 499 I.P.C., the order of conviction and the reasons that weighed with it in sentencing the accused only to payment of fine of Rs. 500. The remaining three paragraphs of the judgment refer to what happened at the hearing of the appeal and why the Judge was inclined to accept the appellant's plea for mercy. With these details, though briefly embodied in the judgment, I am unable to hold that the Sessions Judge had not applied his mind to the facts of the case and exercised his discretion judicially in accepting the appellant's concession to the order of conviction. I have no hesitation in concluding that there has been substantial compliance with the requirements of Section 423 of the Code.
(14) Lastly the learned advocate for the petitioner contended that the contents of the judgment of the appellate court were not in conformity with the provisions of Section 367 of the Code and that the case should be remanded for disposal according to law. The grievance urged is that the judgment does not contain the points for determination, the findings and the reasons therefor. He sought to draw sustenance for this argument from the decision of the Calcutta High Court in Abdul Gani v. Emperor : AIR1943Cal465 , in which their Lordships held that the judgment of the Additional Sessions Judge of Faridpur was not in accordance with law as it was silent about the nature of the offence and the case of the prosecution, but dealt with the case of the defence only 'by seeking to answer in a somewhat desultory and disjointed manner, the argument of the defence Pleader's. Section 367 deals with the language of the judgment and its contents. To confine myself only to the relevant point, the judgment 'shall contain the point or points for determination, the decision thereon and the reasons for the decision; x x It shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.' I have already mentioned that the judgment in this case briefly refers to the facts and to the conclusions arrived at by the learned Magistrate, including the order of conviction and sentence. The need for raising the point or points for determination as contemplated by this section arises where a point or points are raised by the parties to the appeal for decision of the court. The question of assigning reasons will arise where a decision on a disputed point is required to be recorded. Where, as in this case, no point against the trial Court's conclusion of the guilt of the accused is raised for the consideration of the court. In the words of the learned Sessions Judge, the appellant's learned advocate confined the appeal 'only to mercy' in the sense that he suggested that the accused be released on probation of good conduct instead of having to pay the fine imposed: I have already indicated that the judge has substantially complied with the requirements of Section 423 of the Code. Under such circumstances the law does not require him to record in writing all the grounds and reasons that inclined him to accept the appellant's stand. I have gone through the whole article published by the petitioner and the judgment of the Magistrate. The article is per se defamatory. The language used in the article, the number and the nature of imputations which are held to be unfounded and the concluding threat of a special C.I.D. of 'Veeramathe' being appointed to make further investigation are, to say the least about the petitioner, a gross abuse of the freedom of the press which she possesses as an Editor, Printer and Publisher.
(15) I have given full consideration to all the arguments advanced by the petitioners advocate and the decisions relied upon by him in support of his contentions. I cannot agree that an accused has a fundamental or inherent right of appeal. The right of appeal, even in Criminal cases, is a statutory right as mentioned in Section 404 of the Code. It has to be exercised in accordance with the provisions of law conferring such right and the provisions contained in the Code of Criminal Procedure generally. The dictum that an accused can consent to nothing is restrictive in its operation; it means that an accused cannot legalise or validate by consent any departure from or violation of procedure prescribed by law. It is open to him to admit anything or waive his right but the provisions of the Code impose an obligation on the Courts to consider in each case whether it would be reasonable and proper to accept and set upon any such admission having regard to all the facts and circumstances of the case. The Court may in its best discretion accept or reject it but all acceptance must be based on sound judicial discretion. So far as the accused's rights in a Court of appeal are concerned, he is entitled to a reasonable opportunity of being fully heard and it is for him to make or not to make any admission. In fact, he need not concede to anything but if he does the Court of appeal must peruse the records of the case and decide whether it could reasonably the case and decide whether it could reasonably accept such admission without any prejudice or injustice to the accused. The acceptance by Court ought not to be mechanical but must be judicial in the sense that such acceptance is made with full consciousness of and after due compliance with its legal obligations under S. 423 of the Code.
(16) I am satisfied that the concession made for and by the petitioner in the Court of appeal was accepted by the Sessions Judge properly after substantial compliance with the requirements of law and for the benefit of the petitioner. Therefore, I see no merit in this case and dismiss the petition.
(17) Petition dismissed