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Zamir Qasim and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1944All137
AppellantZamir Qasim and ors.
RespondentEmperor
Excerpt:
- - , clearly provides to that effect. now, there is clearly a distinction between reversing a finding and merely altering it. further, it is well settled that, even in the absence of an appeal by the provincial government, it is open to the high court under section 439 to set aside an acquittal and order a re-trial :vide sarda prasad v. it is, to my mind, perfectly clear that the word 'reverse' has been used to connote complete annulment or effacement. the words 'maintaining the sentence' which find a place after the words 'alter the finding' do, in my judgment, clearly indicate that the altered finding must t also be a finding of conviction; 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.....orderismail and mulla, jj.1. in the case of zamir qasim a point of law has arisen which relates to the interpretation of section 428(1)(b)(2), criminal p.c., which says that the appellate court may in an appeal from a conviction alter the finding, maintaining the sentence, or with or without altering the finding reduce the sentence. it has been argued by learned counsel for the crown that in case the charges under sections 120b and 457, penal code, are not made out against zamir qasim, it is open to this court to convict him either under section 411 or section 414, penal code. he was charged of these offences along with others in the court below. the learned sessions judge, however, found him guilty under two counts only, namely, sections 120b and 457, penal code. there is no specific.....
Judgment:
ORDER

Ismail and Mulla, JJ.

1. In the case of Zamir Qasim a point of law has arisen which relates to the interpretation of Section 428(1)(b)(2), Criminal P.C., which says that the appellate Court may in an appeal from a conviction alter the finding, maintaining the sentence, or with or without altering the finding reduce the sentence. It has been argued by learned Counsel for the Crown that in case the charges under Sections 120B and 457, Penal Code, are not made out against Zamir Qasim, it is open to this Court to convict him either under Section 411 or Section 414, Penal Code. He was charged of these offences along with others in the Court below. The learned Sessions Judge, however, found him guilty under two counts only, namely, Sections 120B and 457, Penal Code. There is no specific order of acquittal with respect to other charges, but from the language of the charge and the finding of the learned1 Judge of the Court below with respect to that charge, it is manifest that in his judgment the appellant Zamir Qasim was not guilty of an offence under Section 411 or Section 414, PenalJCode. It is urged on behalf of Zamir Qasim that he must be deemed to have been acquitted of those charges by implication.

2. The question for consideration is whether this Court is empowered to convert the finding of an acquittal into one of conviction. This matter has given rise to some divergence of judicial opinion. A large number of cases have been cited before us by the learned Assistant Government Advocate. We propose referring to a few of them. The first case in point is Queen-Empress y. Jabanullah ('96) 23 Cal. 975. Banerjee J., in course of his judgment observed:

Section 423, Clause (b) has no such 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 Courts 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.... 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 that Court.

This case was followed in Emperor v. Sardar (12) 34 All. 115. In that case there was no specific order of acquittal by the trial Court. The learned Judge, however, held that in appeal it was permissible for him to convert the finding of acquittal into one of conviction. The same view was taken in Dulli v. Emperor ('18) 5 A.I.R. 1918 All. 65. In that case there was a specific order of acquittal :' see also Raghunath v. Emperor : AIR1933All565 and Emperor v. Jagannath : AIR1937All353 . The following observations of the learned Judges in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 are significant:

The case in Raghunath v. Emperor : AIR1933All565 , decided by a Bench of which one of us was a member, was very similar to the case before us.... It was held by this Court that it was open to the High Court under Section 423, Criminal P.C., to convict the accused under Section 147, Penal Code, inasmuch as there was no acquittal on the charge under that section, but merely an omission to record a conviction.

3. The distinction pointed out by the learned Judges does not appear to be very material in view of the observations in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254. Their Lordships observed:

The learned Judge did not record an express finding of acquittal in respect of the charge of murder, but their Lordships are of opinion that the conclusion at which the learned Judge arrived amounted to an acquittal in respect of that charge.... The appeal, therefore, must be decided upon the assumption that the appellant was acquitted of the charge, of murder and that he was convicted of the offence punishable under Section 304, Penal Code.

The view of law laid down in Queen-Empress v. Jabanullah ('96) 23 Cal. 975 has been followed in Calcutta, Madras, Patna and Oudh, viz., Lakhansingh v. Emperor ('34) 21 A.I.R. 1934 Oudh. 200, Hanuman Sarma v. Emperor : AIR1932Cal723 , Dhanpat Singh v. Emperor ('17) 4 A.I.R. 1917 Pat. 625, Mahangu Singh v. Emperor ('18) 5 A.I.R. 1918 Pat. 257, Golla Hanumappa v. Emperor ('12) 35 Mad. 243 etc. See also Sia Ram v. Emperor Cr. Ref. No. 128 of 1941. In view of the authorities cited above, we would have had no hesitation in accepting the contention put forward by learned Counsel for the Crown. Some difficulty, however, has arisen in view of certain observations made by their Lordships of the Judicial Committee and in one case by this High Court, which will be noticed presently. It has been argued on behalf of the appellant that Section 423 (1)(b)(2) empowers the Court of appeal to alter the finding only in cases of conviction as would be manifest from the language of the section itself. It is urged that the finding may be altered in only two sets of circumstances, (1) where the finding of the trial Court may be altered by the appellate Court while maintaining the sentence inflicted by the trial Court in consequence of that finding and secondly, with or without altering the finding of the trial Court, it may reduce the sentence. In either of these cases there must be a sentence which may be either maintained or reduced. A sentence can be passed only upon conviction. In the present case it is urged that as no sentence was passed with respect to Section 411 or Section 414, Penal Code, it is therefore not possible to alter the finding so as to reverse the order of acquittal and substitute it by an order of conviction. It is contended that the only manner in which an order of acquittal may be set aside is provided by Section 417, Criminal P.C. In other respects an order of acquittal is final and cannot be interfered with by any Court. In support of this contention reliance has been placed on the observations of a Bench of this Court in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487. In that case it was remarked:

We cannot, however, change the conviction into a conviction of murder. Sheodarshan Singh was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.

These observations were made in an application in revision. Section 439(4), Criminal P.C., clearly provides to that effect. The last sentence which says that the only method by which an order of conviction may be set aside is by an appeal by the Government may be regarded as obiter. Their Lordships of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 cited above, quoted with approval the observations of the learned Judges in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487 and remarked:

Their Lordships are of opinion that the above is a correct statement of the law it is indeed no more than a repetition of the provisions of the material sections of the Criminal Procedure Code.

It is argued that the observations of their Lordships are wide enough to cover the present case and that unless an appeal is made under Section 417, the order of acquittal must be maintained. This question was subject of discussion in Sarda Prasad v. Emperor : AIR1937All240 , decided by Sulaiman C.J., and Bennet J. This case undoubtedly goes the whole length in favour of the contention of learned Counsel for the appellant. At p. 146 the learned Judges said:

Sub-section (1)(b) on the other hand refers to the case where there is an appeal from a conviction and is sub-divided into three parts : (1) under which the appellate Court can reverse the finding or 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 committed for trial (2) or alter the finding, maintaining the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence. Now, there is clearly a distinction between reversing a finding and 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 under some other section, maintaining the sentence or reducing it or altering it, it amounts merely to an alteration of the finding and not to a reversal of the finding. It is clear to us that Sub-section (1)(b) is not applicable to a case where there is an express order of acquittal and no appeal from a conviction 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 the finding.

It is manifest that the learned Judges were of opinion that the alteration of the finding is limited to cases which may be covered by Sections 236, 237 and 238, Criminal P.C., and which do not involve the reversal of an order of acquittal. Such questions often arise in appeals before this Court and the Courts below. We consider it desirable that there should be an authoritative pronouncement on this question by a larger Bench. We, therefore, order that this matter may be placed before the Hon'ble the Chief Justice for constitution of a larger Bench for the decision of the following point: Whether a Court of appeal is empowered under Section 423(1)(b)(2) to alter a finding of acquittal into one of conviction. The case of Zamir Qasim and others will be put up for delivery of judgment after the decision of the reference by the Full Bench.

Iqbal Ahmad, C.J.

4. The question refer, red for decision to this Full Bench is:

Whether a Court of appeal is empowered under Section 423(1)(b)(2) to alter a finding of acquittal into one of conviction.

5. A mass of case law has clustered round the question and, at present, there is considerable divergence of judicial opinion on the point. A number of cases were cited at the bar during the course of argument, but I shall, as far as possible, avoid a detailed reference to those cases. I adopt this course for two reasons. In the first place, most of the cases have been noticed in the course of their judgment by my brother Judges constituting this Bench, and, in the second place, the answer to the question depends upon the consideration of a few sections of the Code of Criminal Procedure and the interpretation of those sections does not, to my mind, present any insuperable difficulty. Chapter 31, Criminal P.C., provides about criminal appeals and specifies the cases in which, and the Courts to which, appeals may be preferred by convicted persons or persons aggrieved by orders referred to in Sections 406 and 406A of that Chapter. The provision, about appeal by the Provincial Government in case of acquittal is made by Section 417 which lays down that

the Provincial Government 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.

Section 418 specifies the 'matters' to which criminal appeals may relate and Section 421 empowers the appellate Courts to summarily dismiss such appeals. If an appeal is not dismissed summarily, notice of the same had, in view of Section 422, to be issued to the appellant or his pleader and to the Crown counsel and, in case of an appeal by the Provincial Government against acquittal, notice has to be given to the accused. Section 423 then defines the powers of the appellate Court in disposing of appeals of which notices have been issued and runs as follows:

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 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,

(a) in an appeal from an order of acquittal, reverse such order and 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 and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) 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 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 and with or without altering the finding, alter the nature of the sentence, but subject to the provisions 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.

(2) Nothing herein contained shall authorize 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.

6. It is not, and cannot be, disputed that Section 423 is self-contained and exhaustive and that the powers of the appellate Courts in dealing with criminal appeals are co-extensive with, and controlled by, the provisions of that section. The answer to the question under reference must, therefore, depend on the interpretation of the relevant provision of that section. That provision is contained in Sub-section (1)(b)(2) which empowers the appellate Court in an appeal from a conviction to 'alter the finding, maintaining the sentence or with or without altering the finding, reduce the sentence.' The words used are of clear and definite import and, if the matter were not complicated by conflicting judicial pronouncements, I would have had no difficulty in holding that the power of the appellate Court to 'alter the finding', subject to the other provisions of the Code, knows of no limitation save one and only one, viz., that while altering the finding the appellate Court cannot enhance the sentence passed on the appellant. The reason for this salutary check is not far to seek. The Legislature, in its discretion, thought fit to entrust the High Court alone with the power to enhance sentences while exercising its revisional jurisdiction under Section 439. Appellate powers under the Code are, however, possessed by a large number of other Courts, such as the Courts of Sessions Judges, District Magistrate etc., and the Legislature evidently did not consider it expedient to vest those Courts with the powers, to enhance the sentence. Section 423, therefore, enacts the limitation just noticed.

7. It is, however, urged that the power to 'alter the finding' is fettered in one other respect, viz., that a Court is not competent, while exercising its appellate powers in case of an appeal against a conviction, to alter a finding of acquittal into one of conviction. That the limitation contended for has not been imposed by express words admits of no doubt, but it is contended that such limitation (1) is envisaged by Section 417; (2) is manifest from the use of the word 'alter' in contradistinction to the word 'reverse' in Section 423; and (8) is implicit in the provisions enacted by Sections 236, 237 and 288. By Section 417 the Provincial Government is given the right to appeal against an original or appellate order of acquittal passed by any Court other than a High Court. It is pointed out that Section 417 is applicable not only to cases in which the trial has ended in complete acquittal, but also to cases where an accused has been convicted with respect to some and acquitted with respect to other charges framed against him. It is then urged that, as specific provision about appeal against an acquittal is contained in the Code, it is not permissible, in the absence of such an appeal, to interfere or tamper with an order of acquittal.

8. It must be conceded that Section 417 is applicable not only to the case of a complete but also of a partial/acquittal. I am, however, unable to appreciate as to how Section 417 can be requisitioned to import a limitation in the words of Section 423(1)(b)(2)-a limitation which is not there. The fact that a right of appeal against an order of acquittal is given by Section 417 furnishes no justification for the argument that, in the absence of such an appeal, the order cannot, under any circumstances, be touched or varied. It is one thing to give a right of appeal to an individual or to an authority and it is quite another to empower a Court to do something, which it could do if an appeal was preferred, even though no such appeal has been preferred. Section 439 is an apt illustration on the point. That section, subject to the restriction imposed by Sub-section (4), empowers the High Court to exercise the powers of an appellate Court even though no appeal has been preferred. In cases of conviction, it is open to the High Court to set aside the conviction and acquit the accused even though he preferred no appeal against his conviction. Further, it is well settled that, even in the absence of an appeal by the Provincial Government, it is open to the High Court under Section 439 to set aside an acquittal and order a re-trial : vide Sarda Prasad v. Emperor : AIR1937All240 . It is thus manifest that the mere omission of the Provincial Government to appeal against an order of acquittal does not, in all cases, attach finality to that order, and such order is liable to be set aside by the High Court in the exercise of its revisional jurisdiction. The contention that the omission to file an appeal under Section 417 rendess an order of acquittal immune from attack is, therefore, not sustainable.

9. The question still remains whether it is the privilege of the High Court alone to interfere in the exercise of its revisional jurisdiction, with orders of acquittal, or whether Section 423(1)(b)(2) not only extends that privilege to all appellate Courts but gives those Courts the additional power, in appropriate cases,, to substitute, while dealing with appeals from convictions, a finding of conviction for a finding of acquittal. 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.

10. As the Legislature has used the words 'reverse' and 'alter' in the various clauses of Section 423, it must be taken for granted that the two words were used in contra, distinction to each other and in two different senses. It is, to my mind, perfectly clear that the word 'reverse' has been used to connote complete annulment or effacement. The words 'reverse the finding and sentence' in Sub-clause (1) of Section 423(1)(b) must, therefore, mean total obliteration of the finding of conviction recorded and the sentence imposed by the trial Court. This is not disputed. The controversy has, however, hovered over the question as to the precise meaning of the expression 'alter the finding, maintaining the sentence' in Sub-clause (2) of Clause (b). The word 'alter' is, as pointed out in the Full Bench case of the Lahore High Court in Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465 a less radical expression than the word 'reverse' and means 'change in form, without changing the underlying character of the thing to be changed.' I agree that the words 'the finding' in the above expression must refer to the finding of conviction recorded by the trial Court. The only question that then remains is what does the word 'alter' in the context in which it occurs mean? The words 'maintaining the sentence' which find a place after the words 'alter the finding' do, in my judgment, clearly indicate that the altered finding must t also be a finding of conviction; otherwise it would be impossible to maintain the sentence. The question is then narrowed down to this : Whether, in the process of alteration permitted by Sub-clause (2) of Clause (b), it is open to an appellate Court to substitute a finding of conviction for a finding of acquittal recorded by the trial Court. As the power to 'alter the finding' is not circumscribed by any words of limitation and as there is nothing in Clause (b) of Section 423 to prohibit the appellate Court from going behind a finding of acquittal, the answer to the question just noted must, in my opinion, be in the affirmative. The Legislature has, by Sub-section (4) of Section 439, debarred the High ' Court from converting 'a finding of acquittal into one of conviction.' If the Legislature had intended to impose a similar restriction on the power of an appellate Court while dealing with an appeal from conviction, nothing would have been easier than to enact a similar provision in Sub-clause (2) of Clause (b) of Section 423. The absence of such a provision in that sub-clause is, to my mind, proof positive of the fact that, subject to the other provisions of the Code, the Legislature did intend to empower an appellate Court to convert a finding of acquittal into one of conviction, even though the finding of acquittal had not been appealed against.

11. It is, however, maintained that Section 423 is subject to the other provisions of the Code and that the power to 'alter the finding is confined to cases falling within the purview of Sections 236, 237 and 238, and the exercise of that power is not permissible in any other case. 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 and it must be admitted that, in this sense, Section 423 is subject to, and 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. I am however, clear that the interpretation put by me upon these words does, in no way, introduce any repugnancy between Section 423 and the rest of the Code. Sections 236, 287 and 238 are included in chap. 19 of the Code which makes provision about 'charge.' 'Charge' is an integral and indispensable part (except in summons cases) of a criminal trial and detailed provisions as regards the form, language and particulars of a charge as also with respect to 'joinder of charges' are contained in that chapter. This provision has been made with a view to ensure that an accused person is not prejudiced at the trial. But it must be noted in this connexion that the provisions contain, ed in chap. 19 have reference to, and are primarily for the guidance of, trial Courts and not of appellate Courts, for the simple reason that an appeal is the outcome of a concluded and not of an unfinished trial. It follows that the provisions of Chap. 19 can furnish no clue to the construction of Section 423, which defines the powers of appellate Courts and, in particular, those provisions can be no guide to the interpretation of the words 'alter the finding,' as a trial Court records either a finding of conviction or of acquittal and is not concerned with the alteration of one finding into another.

12. All the same, in order to avoid repugnancy, the phrase 'alter the finding' should be so construed as not to lead to the infringement or violation, in the slightest degree, of the provisions enacted in chap. 19. That phrase must, therefore, be so interpreted as not to vest the appellate Court with the power to substitute a finding of conviction which, in view of the provisions of Chap. 19, 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 another 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 the appellate Court convicts him. In short, the power to 'alter the finding' is controlled by the provisions relating to 'joinder of charges' and can be exercised subject to the conditions and restraints prescribed and imposed by Sections 233 to 238 and Section 246 of the Code.

13. I, however, find it impossible to accede to the argument that the power to 'alter the finding' can be exercised only in cases falling within Sections 236, 287 and 238 of the Code. If the power of the appellate Court was intended to be restricted in the manner suggested, I would have expected the Legislature to use the words 'in cases falling within the purview of Sections 236, 237 and 238,' or words to that effect, before the words 'alter the finding.' The absence of such words points to the conclusion that the power to substitute a finding of conviction for a finding of acquittal may be exercised even in cases that are beyond the scope of the three sections just mentioned. A close examination of Sections 233 to 238 also leads to the same conclusion. Section 233 embodies the cardinal principle that for every distinct offence there must be a separate charge and such charge, must be tried separately. Sections 234, 235 and 236 enact exceptions to that rule and specify the cases in which departure from that rule can be made and more than one charge can form the subject of one and the same trial. The fundamental principle underlying these four sections (viz., Sections 283 to 286), however, is that an accused person can be convicted of a particular offence only if he was charged with the same. Exceptions to this principle are then laid down by Sections 287 and 288 which empower the trial Court, in cases specified therein, to convict an accused person with respect to an offence even though he was not charged with the same.

14. It is true that, in cases falling within the scope of Sections 237 and 238, the exercise of the power to 'alter the finding' can never occasion interference with a finding of acquittal. Nevertheless; it is conceded that the appellate Court can convert the finding of conviction appealed against into a finding of conviction for another offence with respect to which the accused might have been convicted by the trial Court under those sections. The Legislature has, thus, admittedly given to the appellate and trial Courts co-extensive powers so far as cases falling within Sections 237 and 238 are concerned. Let us now take Section 236 which runs as follows:

If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and 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.

It is admitted that, if, in pursuance of the provisions of this section, an accused is charged, whether in the alternative or not, and tried with respect to a number of offences and is convicted by the trial Court only with respect to one of such offences, it is open to the appellate Court to substitute, for the finding of conviction recorded by the trial Court, a finding of conviction with respect to any other offence that formed the subject of charge, even though the trial Court did not convict him as regards that offence. This admission, again, concedes to the appellate Court powers identical with those of the trial Court. But it is urged that in the given case the power to 'alter the finding' just noticed can be exercised by the appellate Court only if the trial Court had not, either expressly or by necessary implication, acquitted the accused of the offence for which the appellate Court convicts him. This argument necessarily leads to the conclusion that the power of the appellate Court, in the matter of alteration of finding, must depend upon the action or omission of the trial Court. It will be enlarged if the trial, Court has not acquitted the accused with respect to the offence which, in the opinion of the appellate Court, the accused is proved to have committed; it will be curtailed if the trial Court acquitted the accused as regards that offence. Now, in the absence of some clear and specific words to that effect, I cannot Credit the Legislature with such an intention. The absurdity of the contention advanced can be illustrated by reference to illust. (a) to Section 286. Take a case where A is charged with theft and receiving stolen property. The trial Court convicts him of the offence of theft. The appellate Court, on a consideration of the evidence, comes to the conclusion that A was not guilty of theft but of receiving stolen property. On this finding, the appellate Court cannot sustain the conviction on the charge of theft and the question will then arise whether or not that Court can substitute, for the finding recorded by the trial Court, a finding that A was guilty of receiving stolen property. According to the argument just noticed, it can effect substitution only if the trial Court had not acquitted A of the offence of receiving stolen property, otherwise it cannot. Neither Section 423 nor any other section in the Code does, to my mind, furnish justification for such a startling argument.

15. I now turn to Sections 234 and 285. In accordance with Section 234, an accused person may be charged with, and tried at one trial for, three offences of the same kind that are alleged to have been committed within the space of a year. Take a case where A is tried with respect to two offences of the same kind and the trial Court convicts him with respect to only one of such offences and either omits to record a finding with respect to the other offence or acquits him of that offence. A appeals and the appellate Court comes to the conclusion that A was not guilty of the offence of which he was convicted by the trial Court but was guilty of the other offence. It cannot be denied that, in such a case, justice dictates that the appellate Court, while setting aside the conviction as regards the offence of which A was convicted, should convict him of the other offence which, in its opinion, he is proved to have committed. If however Section 423(1)(b)(2) is to be confined in its operation only to cases under Sections 286, 287 and 288, the appellate Court would be powerless and a proved offender will go unpunished. I cannot persuade myself to believe that the Legislature could have seriously intended such a result. Again, take, illust. (a) to Section 235 which is as follows:

A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged with, and convicted of, offences under Sections 225 and 333, Penal Code.

In the given case, the trial Court convicts A under Section 333 and either omits to record a finding as regards the charge under Section 225 or acquits A under that charge. On appeal by A the appellate Court comes to the conclusion that A was guilty under Section 225 but not under Section 333. According to the restricted interpretation that is sought to be put on behalf of the accused on the words 'alter the finding,' the appellate Court, while acquitting A under Section 333, will be powerless and cannot convict him under Section 225. In the absence of binding authority or clear and unambiguous provision in the statute, I cannot assent to an interpretation that leads to such obvious anomalies.

16. There is yet another consideration that brings out an obvious anomaly which would result by the adoption of the restricted interpretation put upon the words in question. Cases in which an accused person is tried by a Magistrate for more than one offence at one and the same trial and is convicted of some and acquitted of the other offences, are of frequent occurrence. In such a case, the appeal against conviction must lie to the Sessions Judge and the appeal against the order of acquittal must lie to the High Court. What is to happen if appeals both against conviction and against acquittal are filed? If the two Courts entertain and decide the respective appeals, there is the danger of the accused being seriously prejudiced. The Sessions Judge may come to the conclusion that the accused was rightly convicted and dismiss his appeal. The High Court, on the other hand, may come to the conclusion that the accused was wrongly convicted of the offence which forms the subject of appeal before the Sessions Judge and was wrongly acquitted of the offence which is the subject of appeal by the Provincial Government. The High Court, in view of its finding, must necessarily set aside the order of acquittal and convict the accused of the offence of which he was acquitted by the Magistrate. The result would be that the accused will stand convicted with respect to more offences than, in the opinion of the High Court, he had committed. It was suggested that this anomaly can be avoided by the transfer of the appeal from the Court of the Sessions Judge to the High Court and then disposing of both the appeals together. The inconvenience of such a course can better be imagined than described. Apart from the fact that this procedure means unfairness to the Sessions Judges, we must adjudge the thing on its own merits. Suppose no application for transfer is made by the accused. Will it be proper for this Court to force a transfer on him by moving suo motu? Further, as, according to the rules of this Court, appeals against order of acquittal are to be heard by a bench of two Judges, the appeals transferred from the Courts of Sessions Judges, even though congnizable by a Single Judge, will necessarily have to be heard and disposed of by the same bench of Judges. It is needless to observe that an interpretation of a clause in a statute that is productive of such confusion and inconvenience cannot, in the absence of compelling phraseology, be adopted.

17. I appreciate that such interpretation as is calculated to prejudice an accused person should, as far as possible, be avoided. But the interpretation that I put on the phrase in question cannot, under any circumstances, prejudice him. The Code affords to an accused person, who is tried for a number of offences at one and the same trial, full opportunity to defend himself and to produce such evidence in proof of his innocence as is available to him. All that the appellate Court is empowered to do is to alter the finding of conviction by substituting for it another finding of conviction with respect to an offence for which the trial Court could have convicted the appellant but had wrongly acquitted him. In so doing, the appellate Court will necessarily consider the entire evidence upon the record and do what, according to its judgment, the trial Court should have done. By resorting to this procedure, which, in my opinion, is justified by the phraseology of Section 423, the appellate Court can, in no case, transgress the provisions of Ch. 19. There can, therefore, be no question of an appellant being prejudiced, the more so, as Section 423 ordains that the appellate Court cannot, while altering the finding, enhance the sentence.

18. The view that I take is in consonance with the decision of the Calcutta High Court in Queen-Empress y. Jabanullah ('96) 23 Cal. 975. This ease was, speaking generally, followed by all the High Courts and no discordant note was struck till the decision of their Lordships of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254. Even after the last mentioned decision, a Bench of this Court in the year 1933, in Raghunath v. Emperor : AIR1933All565 followed the decision in Queen-Empress y. Jabanullah ('96) 23 Cal. 975 and, while noticing that case made the following observation:

The whole trend of authorities is in one direction and not a single ease has been cited before us in which a dissentient view has been expressed. In our opinion the Privy Council ruling in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 does not shake the authority of the ruling cited, as it does not intrepret the powers of an appellate Court under Section 423, Criminal P.C., but interprets the revisional powers of the High Court under Section 439 of the same Code.

Three years later another Bench of this Court consisting of Sulaiman C.J. and Bennet J., however, took the contrary view in Jado Rahim v. Emperor ('38) 25 A.I.R. 1938 Sind. 202 and held that an appellate Court can, under no circumstances, convict an accused of an offence of which he has been acquitted by the trial Court. The learned Judges, in the course of their judgment, observed as follows:

The position has been considered by their Lordships of the Privy Council recently in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254. Their Lordships approved of the ruling of this Court in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487 that neither an appellate Court nor a revisional Court has power to reverse the finding of acquittal and convert it into one of conviction.

Similar view was taken in 1938 by the Chief Court of Sind in Jado Rahim v. Emperor ('38) 25 A.I.R. 1938 Sind. 202. On the other hand, the Oudh Chief Court in the year 1934 in Lakhansingh v. Emperor ('34) 21 A.I.R. 1934 Oudh. 200 and a Full Bench of the Lahore High Court in the year 1941 in Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465 followed the decision in Queen-Empress v. Jabanullah ('96) 23 Cal. 975. Identical view was taken by a Bench of this Court consisting of Allsop and Verma JJ. in Sia Ram v. Emperor Cr. Ref. No. 128 of 1941 decided on 25th August 1941. Now the decision of the Privy Council in 50 ALL. 7226 has, in my judgment, no bearing on the question that has been referred for decision to the present Full Bench. In that case Kishan Singh was-tried by a Sessions Judge on a charge of murder under Section 302, Penal Code. He was convicted by the Sessions Judge under Section 304 of culpable homicide not amounting to murder and was sentenced to five years' rigorous imprisonment. The Local Government did not file an appeal but applied in revision on the grounds that Kishan Singh should have been convicted of murder and that tie sentence was inadequate. The High Court allowed the application in revision and convicted Kishan Singh of murder and sentenced him to death. Kishan Singh then appealed to His Majesty in Council. Even though the Sessions Judge had not recorded an express finding of acquittal in respect to the charge under Section 302, their Lordships held that the conclusion at which the Judge had arrived amounted to an acquittal in respect of that charge. Their Lordships then proceeded to consider whether it was open to the High Court, in the exercise of its revisional jurisdiction, to set aside the acquittal under Section 802 and to convict Kishan Singh under that section and held that the High Court had no jurisdiction to do so. Their Lordships summarised their conclusion as follows:

Their Lordships are of opinion that in view of the provision contained in Section 439, Sub-section (4) - that nothing in that section shallibe deemed to authorize 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, had no jurisdiction to convert the learned trial Judge's finding of acquittal on the charge of murder into one of conviction of murder.

In the course of their judgment, their Lordships approved of the decision of this Court in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487. In that ease Sheo Darshan Singh was charged before the Sessions Judge with both murder and culpable homicide not amounting to murder. He was acquitted on the former charge and convicted on the latter. On a perusal of the Sessions statement, notice was sent to Sheo Darshan Singh to show cause why he should not be convicted of murder and punished accordingly. On the return of the notice it was held by this Court that this Court had no power, except through the medium of an appeal on behalf of the Local Government, to convert the acquittal into a conviction. The learned Judges in the course of their judgment observed as follows:

We cannot, however, change the conviction into a conviction for murder. Sheo Darshan Singh was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.

In Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 their Lordships observed that:

The above is a correct statement of the law; it is indeed no more than a repetition of the provisions of the material sections of the Code of Criminal Procedure.

19. It would be noted that the only question that engaged the attention of this Court in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487 and of their Lordships of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 was whether it was open to the High Court, in the exercise of its re visional jurisdiction, to convert a finding of acquittal into one of conviction. Neither this Court nor their Lordships of the Judicial Committee had, in the two cases, to consider the scope of the power vested in an appellate Court by Section 423(1)(b)(2). Indeed, while noticing the case in In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258, their Lordships refrained from making any pronouncement about the extent of the powers conferred on a Court of appeal by Section 423(b). These two cases, therefore, are no authority for the contention that an appellate Court can, under no circumstances, substitute a finding of conviction for a finding of acquittal. In arriving at this conclusion, I have not overlooked the observation in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487 that

the only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.

These observations must be taken in conjunction with the facts of the case in which they were made. The learned Judges in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487, were concerned with the powers of the High Court under Section 439 and as Sub-section (4) of that section prohibits the conversion of a finding of acquittal into one of conviction the learned Judges rightly pointed out - if I may say so with respect - that a revisional Court -could not, in the absence of an appeal by the Local Government, overcome the bar enacted by Sub-section (4). Reference may be made in this connexion to the decision of this Court in Raghunath v. Emperor : AIR1933All565 in which it was held that the Privy Council ruling in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 does not interpret the powers of an appellate Court under Section 423, Criminal P.C., but interprets the revisional powers of the High Court under Section 439 of the same Code.

20. For the reasons given above, my answer to the question referred is as follows: An appellate Court is, subject to the other provisions contained in the Code, empowered under Section 423(1)(b)(2) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Provincial Government. This power is, however, subject to the condition that the appellate Court cannot enhance the sentence imposed by the trial Court In the view that I take I must hold that the case in 1937 A. L. J. 143U was wrongly decided and I am unable to agree with the observations to the contrary contained in the judgment of Dalip Singh J. in Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465. Before closing this judgment, I desire to make it perfectly plain that the larger question, whether a High Court, when dealing with an appeal by an accused person against his conviction and sentence on a particular charge, can, while substituting a finding of conviction for a finding of acquittal, enhance the sentence by exercising the power given by Section 489, does not arise in the present case and I refrain from expressing an opinion on that question.

Ismail, J.

21. The question for consideration by the Pull Bench is not free from difficulty. The power of a Court of appeal under Section 423(1)(b)(2) has been subject of discussion in numerous cases which have been noticed at length in the elaborate judgment of my brother Mulla J. The leading case in Queen-Empress v. Jabanullah ('96) 23 Cal. 975 has been consistently followed until recently by this Court as well as other Courts in India. In some cases effort was made to distinguish it, for example in Sami Ayya v. Emperor ('03) 26 Mad. 478, but in a later case of the same Court, 34 Mad. 54619 the decision in 26 Mad. 47818 was not approved. The view of law laid down in Appana v. Pithani Mahalakshmi ('11) 34 Mad. 545 goes the whole length in favour of the contention put forward on behalf of Crown to the effect that a Court of appeal is empowered under Section 423(1)(b)(2), Criminal P.C., to alter a finding of acquittal into one of conviction. A contrary opinion, however, was taken for the first time in this High Court in Sarda Prasad v. Emperor : AIR1937All240 . In that case the learned Judges, Sulaiman C.J. and Bennet J., definitely held that Sub-section (1)(b)(2) is not applicable to a case where there is an order of acquittal. In such a case the appellate Court has no power to reverse the finding of acquittal. According to the learned Judges the only power conferred upon a Court of appeal under that sub-section is to alter the conviction under one section to a conviction under some other section maintaining the sentence or reducing it or altering it. If the latter view is accepted, it follows that a Court of appeal may alter the finding only in cases falling within Sections 236, 237 and 238 of the Code.

22. There is no doubt that some sanctity should be attached to an order of acquittal, but it cannot be disputed that it is liable to be set aside in more than one way. Under Section 417 of the Code, the Provincial Government may appeal to the High Court against an order of acquittal. This Court may reverse the order and may either convict the accused or may order a retrial. Even when there is no appeal the High Court is empowered under Section 439 of the Code to set aside an order of acquittal but is not authorised to convert a finding of acquittal into one of conviction. Subject to this reservation it may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428. The revisional powers may be exercised on the application of a party or suo motu. The powers of a Court of appeal are defined in Section 423 of the Code. It is contended on behalf of Crown that under Sub-section (1)(b)(2), it is open to the Court to alter the finding of conviction under one section and substitute it by a finding of conviction under another section, although the appellant may have been acquitted under the latter. It is conceded that this power is not unrestricted and is control1 led by other provisions of the Act. The subsection itself lays down that the Court may either maintain the sentence or reduce it. It follows that the sentence cannot be enhanced. It is also necessary that the accused must have been charged with the offence of which he is convicted by the appellate Court; for example if an accused person has been charged with offences under sections A and B and found guilty by the trial Court of the offence under A and acquitted under B, the appellate Court may acquit him of the offence under A and may convict him under B. In such a case the accused must have had full opportunity of meeting both charges. The appellate Court on an examination of the entire record may disagree with the conclusions of the Court below and may in its discretion convict him of the charge of which he has been acquitted. I find no provision in the Code which limits the power of a Court of appeal in this respect. On the other hand, if the accused has been charged with only one offence and found guilty by the trial Court of that offence, the appellate Court will not be empowered to convict him of any other offence, except as provided by Section 238, Criminal P.C. As pointed out in the Pull Bench case of the Lahore High Court in Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465, the word 'alter' is a less radical expression than the word 'reverse' and means 'change in form, without changing the underlying character of the thing to be changed.' Conviction under one section in place of another is no more than a change in form as long as the sentence is not enhanced.

23. It is argued with some force that in convicting an accused person of an offence of which he has been acquitted a Court in effect reverses the order of acquittal. It may no doubt have that effect but if it was intended to limit the power of a Court of appeal in that respect, we would expect that the Legislature would have made it clear in the section itself or elsewhere. The Legislature deemed it necessary to lay down certain restrictions on the power of a Court of appeal and has made specific provisions for them. I see no justification for introducing further restrictions which are not to be found either in the section or elsewhere in the Code. In some cases it may not be possible to alter the finding; for example from Section 825, Penal Code to Section 802, Penal Code. Although the Court of appeal may be satisfied that the appellant is guilty of the capital offence, it cannot convict him of that offence without enhancing the sentence which the sub-section does not authorize. As stated above, the power under Sub-section (1)(b)(2) is controlled by other provisions of the Code and Schedule 2 of the Code provides punishments for each offence under the Penal Code. It will serve no useful purpose to review all the authorities on the point as they have been noticed and commented upon elsewhere. Upon a careful examination of those authorities and the judgments of my learned brothers, I answer the question referred to the Pull Bench in the affirmative.

Mulla, J.

24. The question for consideration by the Full Bench is:

Whether a Court of appeal is empowered under Section 423 (1)(b)(2), Criminal P.C., to alter a finding of acquittal into one of conviction

The question as framed is not confined to any particular case. It would ordinarily arise in a case in which an accused person is charged with and tried for more than one offence and is convicted of one but acquitted of another. If he appeals from his conviction, the appellate Court upon a consideration of the evidence may come to the conclusion that the conviction cannot be maintained but may at the same time be of the opinion that the offence of which he has been acquitted has been established. The question would then arise : Whether the power given to the appellate Court by Section 423(1)(b)(2) to alter the finding, maintaining the sentence, extends far enough to enable the Court to set aside the finding of acquittal recorded by the trial Court and to substitute a finding of conviction for the offence for the finding of conviction for a different offence from which the appeal is preferred and which cannot be maintained? The same question may, however, arise in a slightly different form even in a case in which an accused person is charged with and tried for only one offence. It is open to the trial Court under Section 238, Criminal P.C., to convict him of a minor offence instead of the offence with which he is charged. Such a conviction would necessarily imply his acquittal of the major offence with which he was charged even though no express order of acquittal is recorded as laid down by their Lordships of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254. The question would then arise: If he appeals from his conviction for the minor offence, whether the appellate Court can alter that finding of conviction by substituting for it a finding of conviction for the major offence of which he was acquitted by the trial Court

25. There is apparently a large volume of authorities not only of this Court but also of other High Courts in support of the broad view that in an appeal from conviction the whole case is thrown open for the consideration of the appellate Court and Section 423(1)(b)(2) gives an unrestricted power to the appellate Court to alter the finding of conviction in any manner that it thinks fit, even though such an alteration might involve the reversal of a finding of acquittal and the substitution therefor of a finding of conviction. In order to determine the question before the Pull Bench it would be necessary to consider this view in all its implications in order to see if it can be accepted upon a true interpretation of the wording of Section 423(1)(b)(2) in its context.

26. It is not necessary to encumber my judgment with all the cases cited at the bar in support of this view and I shall therefore confine myself to some of the more important ones. The leading case on the point which has generally been referred to with approval in all subsequent cases is that of Queen-Empress v. Jabanullah ('96) 23 Cal. 975. In that case Jabanulla and several others were tried for offences under Sections 148,326 and 302/149, Penal Code. The trial Judge found that no common object was established and he therefore acquitted all the accused persons excepting Jabanulla and one other whom he convicted under Section 326, Penal Code, alone on the basis of the evidence tending to connect them directly and individually with that offence. In appeal the High Court found that the evidence tending to connect the two appellants directly and individually with the offence under Section 326, Penal Code, was not reliable and their conviction could not therefore be maintained on that basis, but at the same time it came to the conclusion that it had been established by the evidence that the appellants were members of an unlawful assembly with a common unlawful object and the offence under Section 326 having been committed in the prosecution of the common object of the unlawful assembly, they were guilty of that offence by virtue of the operation of Section 149, Penal Code. The acquittal by the trial Judge under Section 148, Penal Code, and his finding that there was no unlawful assembly stood in the way of the application of Section 149, Penal Code. For the purpose of convicting the appellants under Section 326, Penal Code, the learned Judges-who heard the appeal (O'Kinealy J. and Banerjee J.) agreed in putting aside the obstacle of acquittal and convicting the appellants under Section 326/149, Penal Code, held that Section 423(1)(b) gave them the power to do so. It may be noted that what the learned Judges really did in that case was to maintain the finding of conviction under Section 326 recorded by the trial Judge though on different grounds. They have made general observations however relating to the scope of Section 423(1)(b) which no doubt support the view that the existence of a finding of acquittal places no restriction at all on the power 'of altering the finding' given to the appellate Court. The only restriction on that power which they recognized was that in some cases it may not be legally possible to maintain the sentence imposed by the trial Court. Banerjee J. stated his conclusions as follows:

Section 423, Clause (b), has no such 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 that Court.

It is permissible to observe that this interpretation of the scope of Section 423(1)(b) is based upon the assumption that the words 'alter the finding' are words of unrestricted scope and not upon an analysis of the language of the statute in its context. The learned Judge himself found that the rule laid down by him was unworkable in some cases but be did not allow this significant circumstance to affect J his conclusion. Pursuing the illustration taken by him a step further, it would appear that if an accused person is charged with murder but convicted of culpable homicide not amounting to murder with a sentence of say ten years' rigorous imprisonment, it is not possible for the appellate Court to alter the finding to that of conviction for murder, because the sentence of ten years imposed upon him by the trial Court which cannot be enhanced in appeal would be an illegal sentence for murder, but if he is given a sentence of transportation for life, which is a possible sentence under Section 304 as well as under Section 802, the difficulty is removed and the alteration becomes possible. It is obvious that if this view is correct, it must be held that the Legislature authorised the appellate Court by words of unrestricted scope to alter the finding of conviction appealed from to a finding of conviction for any other offence, even in spite of a finding of acquittal in respect of that offence, but made the exercise of that authority in some cases dependent upon an incident, namely, the imposition by the trial Court of a sufficient sentence. With all respect to the learned Judge I think this could not have been the intention of the Legislature. Again, it is pertinent to observe that upon this view a finding of acquittal however wrongly recorded by the trial Court in favour of an accused person is safe as long as a finding of conviction recorded against him at the same time is maintained by the appellate Court, for in that case there would be no question of altering the finding and, if in such a case the finding, of acquittal is set aside, there will be no sentence to maintain; but the same finding of acquittal is liable to reversal if the finding of conviction from which the appeal is preferred is found to be erroneous and unsustainable. This position is also not free from anomaly. There are other considerations also which militate against the view taken in this case of the scope of the power to alter the finding contained in Section 423(1)(b)(2) and I will set them out in detail when I proceed to analyse Section 423 in order to find its true meaning. Here I shall only mention a few more cases in which this view has been accepted and approved. This case was consistently followed as an authority in the Calcutta High Court and the last case of that Court, which was cited at the Bar, was that in Hanuman Sarma v. Emperor : AIR1932Cal723 . In that case an accused person was tried on two charges under Sections 354 and 376 and was convicted of the former offence but acquitted of the latter. The High Court in appeal altered the finding of conviction under Section 854 to a finding of conviction under Section 376/511, Penal Code. Mallik J. based his decision on the fact that the finding of acquittal under Section 376 did not involve an acquittal under Section 376/511 and he was not, therefore, reversing any finding of acquittal in the process of alteration. The other learned Judge, Remfry J., however, observed as follows:

Under Section 423, Clause (b), the Court can alter a finding and there is no express provision limiting that power, and it cannot be implied that, because Section 439 is subject to a proviso, Section 423 is similarly limited, especially as under Section 439 the Court can increase the sentence, whereas under Section 423, Clause (b), it can only do so in one way. If the words 'alter the finding' were limited, as it is suggested, their scope would be very restricted. In my opinion the words are not so limited and an appeal by a convicted person entails the possibility that the Court may alter the finding and convict him of an offence of which the lower Court acquitted him.

It will be noted that the conclusion arrived at by the learned Judge is based entirely upon the fact that there is no express provision limiting the power of alteration contained in Section 423, Clause (b), and that no restriction could be implied from any other provision of the Code. In the Madras High Court in 34 Mad. 54519 the accused person was tried on two charges under Sections 148 and 325. The trying Magistrate acquitted him of the former offence but convicted him of the latter. The Sessions Judge in appeal found that the offence of rioting had been established and the appellant was consequently guilty under Section 147, Penal Code, but he said that he could not interfere with the finding of acquittal recorded by the trying Court in respect of the charge under Section 148. In revision the High Court held:

Under Section 423(b)(2), Criminal P.C., the appellate Court may alter the finding maintaining the sentence and there is nothing to restrict the finding which may be altered to a finding of conviction. We agree with the decision in Queen-Empress v. Jabanullah ('96) 23 Cal. 975 which cannot, we think, with respect, be distinguished in the manner in which it was sought to be distinguished in Sami Ayya v. Emperor ('03) 26 Mad. 478.

In the case last mentioned the accused were charged with and tried for being members of an unlawful assembly, rioting, hurt and theft in the Court of a Magistrate of the second class who acquitted them all of the charge of theft but recorded a finding of conviction on all other charges. On appeal by the accused the Deputy Magistrate thought that the offence of theft had been established and he, therefore, came to the conclusion that it was a case of dacoity and so he committed the case ' to the Court of Session. The accused persons applied to the High Court in revision. Sir Arnold White C.J., held:

I am of opinion that, under Section 423, Criminal P.C., the Deputy Magistrate had no power to reverse the acquittal on the charge of theft It seems to me the words 'reverse the finding and sentence' an Clause (1)(b) mean reverse the finding upon which a conviction is based, and do not empower the appellate tribunal (or at any rate an appellate tribunal other than the High Court) to reverse or set aside an acquittal. The case in Queen-Empress v. Jabanullah ('96) 23 Cal. 975 to which my attention has been called by the Public Prosecutor is distinguishable on the ground that the appellate tribunal in that case (the High Court) was a tribunal which had jurisdiction to set aside an acquittal.

27. The next case of the Madras High Court to which reference may be made is that of Golla Hanumappa v. Emperor ('12) 35 Mad. 243. In that case the learned Judges held:

Under Section 423, Clause (b), Criminal P.C., an appellate Court has the power to alter the finding of the lower Court maintaining the sentence. It is urged that this provision entitles the Court to convict an accused of an offence of which he is acquitted only in cases falling under Sections 237 and 236, Criminal P.C. We see no reason to adopt this qualification of the plain words of Section 423. Sections 237 and 238, Criminal P.C., provide that in the cases to which they apply an accused person may be convicted of an offence with which he is not charged. The finding which an appellate Court may alter under Section 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 oases not falling under Sections 237 and 238, Criminal P.C., no doubt the appellate Court cannot convict a person 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: Queen-Empress v. Jabanullah ('96) 23 Cal. 975 followed.

28. It will be noticed that in this case the learned Judges did recognize at least some limitation on the power of altering the finding contained in Section 423(1)(b)(2), namely, that the appellate Court cannot convict the appellant of any offence with which he is not charged in the first Court, though they go on to say that this difficulty is removed where the accused person is charged with an offence and is acquitted thereof and in such a case the appellate Court can reverse the finding of acquittal. With due respect to the learned Judges, I venture to think that they proceeded upon the assumption that the words 'alter the finding' in Section 423(1)(b)(2) were wide enough to include the reversal of a finding of acquittal and they did not try to analyse the provisions of the Code which, in my judgment, furnish a very good reason for holding the opposite view. The last case of the Madras High Court to which reference need be made is that in In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258. In this case the accused persons were tried on two charges under Sections 148 and 802, Penal Code. The trial Judge convicted them under Sections 147 and 304, Penal Code. They appealed from that conviction and the High Court gave them notice to show cause why they should not be convicted under. Section 302. In the end the High Court convicted ' them under that section holding as follows:

Section 423, Clause (b), Criminal P.C., gives power to the High Court when hearing an appeal against a conviction to alter the finding and Section 439 gives power to enhance the sentence so as to make it appropriate to the 'altered finding' and Section 439, Sub-section (4), which enacts that 'nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction,' must be construed1 as referring to cases where the trial has ended in a complete acquittal; 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 power conferred on a Court of Appeal by Section 423, Clause (b).

This case was cited before their Lordships of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 to which I shall refer in greater detail later on. Their Lordships disapproved of the principle enunciated by the learned Judges of the Madras High Court 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 or offences. In Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254, which their Lordships had to consider, the accused was charged with murder under Section 302 but was convicted by the Sessions Judge only under Section 304, Penal Code. The Local Government applied for revision of the judgment of the Sessions Judge and prayed for the alteration of the conviction of the accused under Section 304 to a conviction under Section 302. Their Lordships held, firstly, that the conviction of the accused by the Sessions Judge under Section 304, though he was charged under Section 302, amounted to his acquittal on the latter charge, although the Judge did not record an express finding of acquittal and, secondly, that in view of Sub-section (4) of Section 439, the High Court had no jurisdiction in the exercise of its revisional jurisdiction lo convert a finding of acquittal into one of conviction. Their Lordships approved the statement of the law on this point by a Bench of the Allahabad High Court in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487 which ran as follows:

We cannot, however, change the conviction into a conviction for murder. Sheo Darshan was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.

This statement of the law was made by the learned Judges of the Allahabad High Court in a case in which the accused person was charged with both murder and culpable homicide not amounting to murder and was acquitted of the former charge and convicted of the latter. On a perusal of the Sessions statement, a notice was issued by the High Court to the accused to show cause why he should not be convicted of murder and punished accordingly. When the case in In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258 was cited before their Lordships of the Privy Council, apparently to support the view that the High Court could convert a finding of acquittal into one of conviction, their Lordships pointed out that in In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258 the accused had appealed from his conviction and that was a fact which distinguished it from the case in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254. Their Lordships were not concerned with the correctness or otherwise of the decision in In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258, but it is significant that they did not say that in view of the fact that the Madras High Court in In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258 had an appeal from conviction by the accused before them there was no legal bar to the reversal of a finding of acquittal. On the other hand, I cannot help feeling that they seem to have expressed some doubt by observing:

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.

29. In the Patna High Court in Dhanpat Singh v. Emperor ('17) 4 A.I.R. 1917 Pat. 625, the question of the power of the-appellate Court to convert a finding of acquittal into one of conviction under Section 423(1)(b)(2), was considered and a guarded view was expressed as follows:

The question is not free from difficulty, inasmuch as there is no doubt that the general intention of the Code is that an acquittal shall stand until appealed against by the Local Government under Section 417. On the other hand, the provisions of Clause (b), Sub-section (1) of Section 423 are very wide and enable a Court in disposing of an appeal from a conviction to alter the finding. There is no express restriction of this provision to the effect that a finding of acquittal cannot be converted into a finding of conviction upon the facts which have resulted in a conviction in the first Court under another provision of the law.

30. Another case of that Court which may be referred to here is that in Mahangu Singh v. Emperor ('18) 5 A.I.R. 1918 Pat. 257. In that case the accused were charged under Sections 147 and 353, Penal Code. The trying Magistrate, however, convicted them only under Section 323 with which they had not been charged. On appeal the Sessions Judge set aside the conviction under Section 323, Penal Code, but substituted for it a conviction under Section 147, Penal Code. The accused applied to the High Court in revision and it was held on the authority in Queen-Empress v. Jabanullah ('96) 23 Cal. 975 that the Sessions Judge had power to set aside the finding of acquittal under Section 147, Penal Code, and to record a conviction instead. The latest case of the Patna High Court is that in Emperor v. Barka Jetha Majhi ('42) 29 A.I.R. 1942 Pat. 190. In that case the accused were charged under Sections 148, 326 and 302/149, Penal Code. The trial Judge convicted them under Sections 826 and 148, Penal Code, but acquitted them of the charge under Sections 302/149, Penal Code. In appeal it was held:

It is unnecessary to consider in this case the larger question whether the appellate Court has power to set aside the finding of fact of acquittal on one count while hearing an appeal against the conviction on the other charge. In the present case that question does not arise because the learned Sessions Judge has not acquitted the accused upon any finding of fact which we are setting aside, but he has acquitted the accused' upon an erroneous view of the law.

31. In the Oudh Chief Court also it was held in Lakhansingh v. Emperor ('34) 21 A.I.R. 1934 Oudh. 200 that the appellate Court, if it finds that conviction under Section 399 cannot be sustained, may alter the finding to one of conviction under Section 402, setting aside the acquittal under the latter section. In the Allahabad High Court a similar view was held on the authority in Queen-Empress v. Jabanullah ('96) 23 Cal. 975, Emperor v. Sardar (12) 34 All. 115, Dulli v. Emperor ('18) 5 A.I.R. 1918 All. 65 and Janki Prasad v. Emperor : AIR1926All700 , but it appears that some doubts arose about the soundness of that view in consequence of the case in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 which went up before their Lordships of the Privy Council and which has already been referred to above. In Moti Bam v. Emperor : AIR1936All758 four accused persons were charged with and tried for an offence under Section 304, Penal Code. Two of them including Moti Ram were convicted under Section 325, Penal Code. They appealed to the Sessions Judge because the trial had been held by an Assistant Sessions Judge who had imposed a sentence of two years only. The Sessions Judge came to the conclusion that the charge under Section 304 had been established and he therefore ordered a retrial. The two accused were again tried on a charge under Section 304 by the Assistant Sessions Judge and were convicted. They again appealed to the Sessions Judge who allowed the appeal of one of them but maintained the conviction of the other, namely, Moti Ram who then applied in revision to the High Court. Allsop J. held:

I agree that the learned Sessions Judge had no authority to set aside the acquittal under Section 304, Penal Code. Their Lordships of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254, have clearly laid down that where a man is tried of a more serious offence and is convicted of less serious one he must be held to have been acquitted of the more serious offence and that the acquittal cannot be set aside except upon an appeal filed by the Local Government.

32. In Emperor v. Jagannath : AIR1937All353 the accused persons were charged in the alternative with offences under Sections 366, 366A and 498, Penal Code. The trial Judge convicted them under Section 366A and did not record any finding of conviction or acquittal in respect of the other charges. The High Court on appeal found that no offence either under Section 366 or Section 366A had been established, but an offence under Section 498 had been made out. A question then arose whether the appellate Court was empowered to alter the finding of conviction under Section 366A to that of conviction under Section 498. From the findings of the Sessions Judge it appeared that the ingredients of Section 498 were proved and it was apparently by an oversight that he omitted to convict the accused under that section. In these circumstances the High Court held that it was open to the appellate Court under Section 423(1)(b), Criminal P.C., to alter the conviction under Section 366A, Penal Code, into a conviction in the alternative under Section 498, Penal Code, inasmuch as there was no acquittal on the charge under Section 498 but merely an omission to record a conviction. It is noticeable that the learned Judges did not hold definitely that it was open to the appellate Court to convert a finding of acquittal into one of conviction but relied on the fact that there was no acquittal which they were setting aside. It is permissible to infer that they had some doubt as to whether the appellate Court can alter the finding of conviction appealed from in such a way as to convert a finding of acquittal into one of conviction.

33. I now come to the case in Sarda Prasad v. Emperor : AIR1937All240 in which the Allahabad High Court held definitely for the first time quite contrary to the prevailing view based upon the authority in Queen-Empress v. Jabanullah ('96) 23 Cal. 975 that the appellate Court is not empowered by Section 423(1)(b)(2) to alter the finding of conviction appealed from in such a way as to set aside a finding of acquittal recorded by the trial Court in favour of the accused. In that case the accused was charged with and tried for two separate offences, one under Section 60(a) and the other under Section 60(f), U.P. Excise Act. The trying Magistrate convicted him under Section 60(f) but acquitted him under Section 60(a). On appeal the Sessions Judge set aside the conviction under Section 60(f) but at the same time recorded a conviction under Section 60(a) reversing the finding of acquittal by the trying Magistrate. Sulaiman C.J. and Bennet J. before whom the matter came up in revision, held:

There can be no doubt that the powers of an appellate Court are confined to Chap. 31, Criminal P.C., Section 423 of which is applicable to this case. That section is divided into two sub-parts. Sub-section (1)(a) refers to a case where there is an appeal from an order of acquittal, in which case an appellate Court can reverse the order and direct further enquiry or retrial or find him guilty and pass sentence according to law. That would obviously be the case where the Government have under Section 417 appealed from an acquittal.

Sub-section (1)(b) on the other hand refers to the case where there is an appeal from a conviction, and is sub-divided into three parts (1) under which the appellate Court can reverse the finding or 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 committed for trial; (2) or alter the finding, maintaining the sentence; or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence. Now there is clearly a distinction between reversing a finding and 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 under some other section maintaining the sentence or reducing it or altering it, it amounts merely to an alteration of the finding and not to a reversal of the finding. It is clear to us that Sub-section (1)(b) is not applicable to a case where there is an express order of acquittal and no appeal from a conviction 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 the finding.

In this ease the learned Judges also referred to the case in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 and interpreted it to mean that their Lordships of the Privy Council by approving the view of this Court in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487 intended to lay down that neither an appellate Court nor a revisional Court has power to reverse the finding of acquittal and convert it into one of conviction. A similar view was taken by the Rangoon High Court in Paw Tha U v. Emperor ('35) 22 A.I.R. 1985 Rang. 512. In that case the accused was charged under Sections 302 and 392 read with Section 114. The Sessions Judge convicted him under Sections 302/114 but acquitted him of the charge under Section 302. On appeal the High Court found that there was no evidence to sustain the charge under Section 302 but it could justify a conviction under Section 379/511. It was held, however, that the accused having been acquitted by the trial Court under Section 392 the appellate Court was not empowered to set aside that acquittal and to record a conviction under Section 379/511. The same view has been expressed very definitely and forcefully by the Sind Judicial Commissioner's Court in Jado Rahim v. Emperor ('38) 25 A.I.R. 1938 Sind. 202. In that case the accused was charged with murder under Section 302 but was convicted by the Sessions Judge only under Section 304, Penal Code. On appeal by him the learned Judges of the Judicial Commissioner's Court hearing the appeal came to the conclusion that there was sufficient evidence to sustain the charge under Section 302 and the question arose whether it was open to the appellate Court to set aside the implied acquittal of the accused by the trial Judge under Section 302 and then to alter his conviction under Section 304 to a conviction under Section 302. Having considered this question, the learned Judicial Commissioners expressed their view as follows:

It is difficult to read into Section 423(1)(b) the power to convert an acquittal into a conviction on an appeal against a conviction. We think the words 'alter the finding, maintaining sentence' occurring in Section 423(1)(b)(2) must be read as a whole, and we could not in this case, for instance, alter the rinding from one of a conviction under Section 304 to one of a conviction under Section 302, Penal Code, and maintain the sentence because we could not for an offence under Section 302, Penal Code, maintain a sentence of ten years' rigorous imprisonment. And even if the Judge in this ease had imposed a sentence of transportation for life, we do not think we could for that reason have altered the finding from a conviction under Section 304 to a conviction under Section 302, Penal Code, and then as a Court of revision have enhanced the punishment to one of death under Section 439, Criminal P.C., because we do not think the exercise of these powers can turn upon chance. We do not think the exercise of these powers can depend upon the chance that in a case under Section 304(1) the Judge has imposed the maximum penalty under the section. We think the better view to take is that Clause (b) of Section 423(1), Criminal P.C., does not apply to cases of acquittal, partial or total, but to cases of conviction, and that Clause (a) applies to cases of acquittal; and that if the appellate powers of the Court are to be exercised to convert an acquittal into a conviction, then they should be exercised on an appeal against an acquittal under Section 423(1)(a) and not on an appeal against a conviction under Section 423(1)(b), Criminal P.C., which is the case here.

34. After this conflict of judicial opinion, the question was considered by a Full Bench of the Lahore High Court in Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465.In that case the accused was charged under Section 302, Penal Code, with the offence of murder but was convicted under Section 304, part 1, Penal Code, and sentenced to six years' rigorous imprisonment. He appealed and the High Court issued notice to him to show cause why the conviction should not be altered to one under Section 302, Penal Code. The question for determination was whether in the absence of an appeal by the Provincial Government, it is competent for the High Court to set aside an order of acquittal under Section 302, either suo motu or on the application of the complainant. The Pull Bench held that the High Court is competent in the appellate jurisdiction to alter the finding from Section 304, Part 1, to a finding that the conviction should be under Section 302, and in the exercise of its revisional jurisdiction under Section 439, Criminal P.C., the High Court may then pass a sentence of death or transportation for life as the merits of the case may require. The leading judgment in that case was given by Dalip Singh J. who upon an analysis of Section 423, Criminal P.C., arrived at the conclusion that the word 'alter' in Sub-section (1)(b) was used in its natural meaning and justified the alteration of the finding appealed from to any other finding that the Court considers proper on the findings of fact at which it arrives in appeal. He has given three reasons for arriving at that conclusion.

Firstly, if it were intended that the word 'alter' should not include a reversal of an acquittal in the sense in which it is used in the illustration above, nothing was easier than for the Legislature to have inserted a clause in Section 423 similar to Clause (4) in Section 439.

Secondly, the result of any such reading would lead to such remarkable result that I doubt if the Legislature would ever have contemplated any such reading at all.

Thirdly, it seems to me that the more correct way of looking at the matter to discover the meaning put to the word 'alter' is to be found in considering the reason why in Clauses (a) and (c) and Sub-section (2) of Section 423 it was necessary to give a power both of reversal and alteration whereas it was unnecessary to give a power of reversal in the ease contemplated in Section 423(b). In the case of an appeal from an acquittal it is obvious that the appeal might be directed against both a complete acquittal and a partial acquittal; that is to say, a man might be charged under Section 302 and completely acquitted of any offence, or a man might be charged under Section 302 and convicted, say, under Section 304. In the former case, where there was a complete acquittal, it will be necessary to give the appellate Court power to reverse the acquittal, that is to say, set aside the finding that the man is innocent and find him guilty. In the second case it is not necessary to set aside any finding hat the man is innocent, for ex hypothesi the man has been found guilty of an offence. All that is necessary is for the appellate Court to determine of what offence he is to be found guilty and for this purpose all that is necessary is for power to be given to the appellate Court to alter the finding, thereby ensuring that the man shall be found guilty of the offence of which he really is guilty according to the findings of the appellate Court.

35. I shall discuss these reasons when I come to analyse Section 423. It is sufficient here to state that in spite of a broad view taken by him, as shown above, the learned Judge when he came to consider the case in Sarda Prasad v. Emperor : AIR1937All240 did not find anything wrong with that decision and observed as follows:

The first ruling is one reported in Sarda Prasad v. Emperor : AIR1937All240 in that case it was pointed out by Sulaiman C.J. that to the facts of that case the power conferred under Section 423(b) on the appellate Court did not apply. The facts of that case were as follows. A man was charged under two separate charges under Section 60 (a), Excise Act, (1) for being in possession of illicit liquor and fermented wash and (2) for being found in possession of implements for manufacture of illicit liquor. The learned Magistrate acquitted the accused of the charge under Section 60(a) holding that the liquor, in the bottle was not proved to be illicit liquor. He convicted him under Section 60(f) of the same Act for being found in possession of implements for the manufacture of illicit liquor. On appeal by the accused to the learned Sessions Judge from his conviction under Section 60(f), the learned Sessions Judge came to the contrary conclusion. He found that the offence under Section 60(f) was not proved, but that the offence under Section 60(a) was proved. It was rightly pointed out by the learned Judges, if I may say so with all respect, that the appellate Court had no power to do so. This was not an alteration of the finding under Section 60(f), but was a reversal of the acquittal under Section 60(a), and this the appellate Court had no power to do.

With great respect to the learned Judge, I find myself entirely unable to reconcile the broad view stated by him in the earlier portion of his judgment regarding the wide scope of the power of alteration given by Section 423(1)(b)(2) with his ultimate conclusion that the case in Sarda Prasad v. Emperor : AIR1937All240 was rightly decided. There are two other mistakes in his judgment which may here be pointed out. In giving the third reason in support of his conclusion he has stated that it was necessary for the Legislature to give a power both of reversal and alteration in Clauses (a) and (c) and Sub-section (2). A perusal of Clause (a) would, however, show that there is no mention of alteration in that clause. Again, I find that in referring to the case in Jado Rahim v. Emperor ('38) 25 A.I.R. 1938 Sind. 202 the learned Judge observed that

the Judicial Commissioners of the Sind Court appear to have doubted the correctness of the previous rulings on the subject, but they expressed no final -decision.

On the other hand I have quoted extensively from their judgment to show that they have held very definitely that the appellate Court has no power under Section 423(1)(b) to convert a finding of acquittal into one of conviction and that a finding of acquittal can be set aside only in an appeal from acquittal under Section 417, Criminal P.C.

36. Having the two opposite views before me, I shall now proceed to state my own conclusions and the reasons upon which they are based. In order to determine the question under consideration it is necessary to make a careful analysis of Section 423, Criminal P.C., which is the only section to which one must turn in order to find the nature and extent of the powers conferred upon the appellate Court. Any power which the appellate Court can exercise must be deduced from the language of that section either directly or by necessary implication. Section 423 runs as follows:

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 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-

(a) in an appeal from an order of acquittal, reverse such order and 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 and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) 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 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 and with or without altering the finding, alter the nature of the sentence, but subject to the provisions 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.

It is to be observed that in this section the Legislature has taken great care to set out in detail every power which the appellate Court can exercise. Clause (a) deals exclusively with an appeal from an order of acquittal and sets out the various powers which the appellate Court may exercise in dealing with such an appeal. In my judgment this clause clearly indicates that the Legislature has prescribed a special procedure which must be resorted to if an order of acquittal is sought to be set aside. Clause (b) sets out the powers of the appellate Court in dealing with an appeal from a conviction. It provides firstly, that the appellate Court may reverse the finding and sentence and acquit or discharge the accused. It may also order the accused to be retried by a Court of competent jurisdiction or committed for trial. Secondly it provides that the appellate Court may alter the finding, maintaining the sentence, or with or without altering the finding reduce the sentence. The whole question turns upon the true interpretation of this sub-clause. On the one hand it is contended that the words 'alter the finding' are absolutely unrestricted in their scope and hence they empower the appellate Court while altering the finding to substitute for it a finding of conviction for any other offence, even though the accused may have been acquitted of that offence by the trial Court. The other possible view is that the power of alteration given by this sub-clause cannot be so extended as to include the power of setting aside a finding of acquittal. For the reasons which I shall presently state in detail I have, no hesitation in holding that the latter view is the correct one. It will be noticed that the word 'alter' has been used in Section 423 always in juxtaposition with reverse and this clearly implies that alteration is a process of a much more limited scope than reversal. It has to be borne in mind that the power of alteration given by Section 423(1)(b)(2) is confined to the finding from which the appeal has been preferred. In Clause (b)(1) it is provided that in an appeal from a conviction the appellate Court can reverse the finding which clearly means the finding from which an appeal has been preferred. The same words 'the finding' have been used in (b)(2) and they most clearly refer only to the finding of conviction from which an appeal has been preferred. Upon the plain meaning of the language used in (b)(2), it is evident that there is no direct power given to the appellate Court to interfere by alteration with any finding other than the finding from which the appeal is preferred. It is contended, however, that the word 'alter' used in (b)(2) must be interpreted in its broadest sense and in that sense it would go far enough to include a change of the finding of conviction appealed from into a finding of conviction for any other offence which appears to the appellate Court to have been established by the evidence. Now, it appears to me that even in its broadest sense the word 'alter' as it is used in common parlance means a change which does not altogether destroy the essence and form of the thing which is altered. The argument that the word 'alter' is to be taken in its broadest sense so that the process of alteration is unrestricted is to my mind fallacious. It is obvious that Section 423 deals not only with a case in which an accused person is tried for a single offence and convicted thereof, but also with a case in which he is charged with more than one offence and is convicted of one but acquitted of the other. The normal case, if I may so call it, is however the case of an accused person being charged with and tried for only one offence. Section 233, Criminal P.C., provides that:

For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239.

This is the general rule laid down in the Code and it is obvious that this rule must control the provisions of Section 423, Criminal P.C. According to this rule, an accused person is generally charged with and tried for only one offence. The law has however permitted some exceptions which are to be found in Sections 234, 235 and 236. It is, therefore, clear that the cafes in which an accused person is charged with and tried for more than one offence at the same trial are exceptional cases. Let us first consider the application of the process of alteration permitted by (b)(2) to the normal case in which an accused person is tried for one offence only and is convicted thereof. It is evident that in such a case this process can never come into conflict with a finding of acquittal. In such a case it is not open to the appellate Court to convict the accused person of any other offence with which he was not charged and for which he was not tried unless the ease falls within the purview of Sections 236 and 237 of the Code. It is evident therefore that the power of alteration is controlled by Section 233, Criminal P.C., for otherwise there could be no bar to the conviction of the accused for any offence other than that with which he was charged if the process of alteration is supposed to be absolutely unrestricted. This is in my judgment sufficient to show that the words 'alter the finding' used in (b)(2) must be read as being subject to other provisions of the Code and it is idle to contend that they are words of unrestricted scope. There may be no express words of restriction but restriction is necessarily implied in other provisions of the Code which lay down general principles applicable to criminal cases. Once it is found that the process of alteration must be controlled by other provisions of the Code, it becomes necessary to determine the limits within which it is permitted by the law to operate. The Legislature cannot be deemed to have used the words 'alter the finding' without attaching a definite meaning to them. In my judgment that definite meaning is to be found in Sections 236, 237 and 238, Criminal P.C. In those sections the law has made definite provisions for alteration and the extent to which it can proceed. Section 236 provides that:

If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or arty of such offences, and 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.

This is followed by Section 237 which permits the appellate Court in a case falling within the purview of Section 236 to convict the accused of an offence which he is shown to have committed, although he was not charged with it. This is an alteration of the general rule laid down in Section 233 that an accused person must be charged with every distinct offence alleged to have been committed by him and he must be tried for it. Then we come to Section 238 which sets out three cages in which the law permits an alteration. It runs as follows:

238. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(2A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

I have not the slightest hesitation in holding that the only alterations permissible under the law are those provided for by Sections 237 and 288, Criminal P.C., and I am further clear in my mind that when the law has made definite provisions for alteration in these sections and has then proceeded to confer upon the appellate Court in Section 423 (1)(b)(a) the power to alter the finding, maintaining the e sentence, the process of alteration must be related to these sections and must operate within the limits prescribed therein. Now, I find that in the normal case, that is, the ease in which an accused person is tried only for one offence and convicted thereof, all the alterations permitted by the law can be made without ever coming into conflict with a finding of acquittal. The appellate Court can alter the finding appealed from by convicting the accused of an offence which is a minor offence in relation to the one with which he was charged within the meaning of Section 238(1). It can also alter the finding appealed from by reducing the offence of which the accused has been found guilty to a minor offence within the meaning of Section 238(2). It can also alter the finding appealed from by convicting the accused of an attempt to commit the offence for which he was tried and convicted by the trial Court. Lastly, in a case falling within the purview of Section 236, Criminal P.C., it can alter the finding appealed from by convicting the accused of another offence with which he was not charged. All this can be done by the appellate Court in the normal case and Section 423 is primarily concerned with such a case. No question of setting aside a finding of acquittal ever arises at all. Let us now turn to consider the application of this process to the exceptional case in which an accused person is charged with and tried for more than one offence at the same trial and is convicted of one but acquitted of the other offence. Such a case may fall within the purview of Section 234, Criminal P.C., which runs as follows:

234. (1) When a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last of such offences, whether in respect of the same person or not he may be charged with and tried at one trial for any number of them not exceeding three.

Let us now take an illustration. An accused person may be charged under Section 234 with having committed criminal breach of trust in respect of a sum of Rs. 100 on 1st January 1944, and also with having committed the same offence in respect of a sum of Rs. 5000 on 1st June 1944. If he is acquitted on the latter charge and convicted on the former, will it be open to the appellate Court, if it finds that the conviction is not sustainable, to alter the finding by convicting him on the other charge of which he has been acquitted by the trial Court, if it is of the opinion that the evidence was sufficient to establish that charge? If the words 'alter the finding' are to be taken in their broadest sense as meaning the substitution for the finding appealed from a finding of conviction for any other offence which is proved to have been committed by the accused, then the answer to the question must be in the affirmative. It is evident, however, that the answer must be in the negative. The two offences with which the accused person was charged were entirely independent offences and they were brought together in the same trial only by virtue of the operation of Section 234. They might have been committed in respect of two different persons. They must have depended for proof upon different facts and separate evidence. It has again to be borne in mind that the accused person could have been tried separately for each one of those offences and in that case if he had been acquitted of one his acquittal could not possibly be set aside except upon an appeal from acquittal under Section 417, Criminal P.C. It is obvious, therefore, that it is not within the power of the appellate Court in such a ease to alter the finding in the broadest sense of that expression by substituting for the finding of conviction appealed from a finding of conviction on the charge of which the accused person has been acquitted by the trial Court. The same observations would apply with equal force to a case falling within the purview of Section 235(1) which runs as follows:

If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

Under this section an accused person may be charged with having committed a murder at one place and with having caused grievous hurt to another person at a different place. The two offences might also be sufficiently separated in time but may yet have been committed in the course of the same transaction. I do not think it can be seriously contended that in such a case if the accused person is acquitted on the charge of murder but convicted on the charge of causing grievous hurt, the appellate Court can in an appeal by him from his conviction alter the finding by convicting him of murder. It may be mentioned here that cases falling within Sub-Sections (2) and (3) of Section 235 are provided for by Section 238, Criminal P.C., so far as the power of alteration is concerned. From this it is clear to my mind that the process of alteration contemplated by Section 423(1)(b)(2) cannot be deemed to be unfettered even in its application to cases in which an accused person is convicted of one offence but acquitted of another at the same trial. In cases falling within the purview of Sections 236 and 237, Criminal P.C., the trial Court can convict an accused person of an offence with which he was not charged and the same power can be exercised by the appellate Court in an appeal from conviction by altering the finding of the trial Court. So far there is no clash between the process of alteration and a finding of acquittal. It is only when an accused person has been charged with more than one offence under Section 236 and has been definitely acquitted by the trial Court of one of those offences that the question arises : Whether the appellate Court in an appeal from conviction can alter the finding by convicting the accused of the offence of which he has been acquitted? If the trial Court does not record any finding in respect of the other offence, it is clearly open to the appellate Court to do so within the limits of Section 237. The only question is : Whether the appellate Court can do so when the accused person has been definitely acquitted by the trial Court of some offence with which he was charged under Section 236, Criminal Procedure Code?

37. I have already stated my view that the Legislature having made definite provisions for alteration in Sections 237 and 238, Criminal P.C., no alteration which is not covered by those sections is permissible. It is obviously not within the power of the appellate Court to convict an accused person of a major offence when he is charged with and tried only for a minor offence. That is so because such an alteration is not permitted by the law. It follows, therefore, that the power of alteration given by Section 423(1)(b)(2) must be related to the general provisions for alteration made by the Legislature in Sections 237 and 238, Criminal P.C., and cannot travel beyond the limits prescribed in those sections. I have also shown the anomalies which would result from giving an unrestricted meaning to the words 'alter the finding' in cases falling within the purview of Sections 234 and 235(1). These are in my judgment much more serious than those mentioned by Dalip Singh J., in support of his view in Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465. Indeed such a wide interpretation of the words 'alter the finding' would lead to impossible results. I am, therefore, strongly of the opinion that the power of 'altering the finding' given by Section 423(1)(b)(2) is not an unfettered power but is on the other hand controlled by other general provisions of the Code and it can operate only within the limits prescribed by the law in Sections 237 and 238, Criminal P.C. If so interpreted, this power need never come into clash with a finding of acquittal except in one case which I shall presently consider. Alteration of the finding of conviction by the appellate Court can take only three possible forms, namely, (1) reducing a major offence to a minor offence, (2) converting a minor offence into a major offence and (3) substituting conviction for one offence in place of conviction for another.

38. Now, so far as the first form of alteration is concerned, it is clearly permitted by the law and such an alteration can be made by the appellate Court in any case either when the accused person is tried for and convicted of only one offence or when he is charged with two offences and convicted of one but acquitted of another. 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 cannot see any distinction in principle between this case and the case in which he accused person is charged with a major offence but is acquitted thereof and is convicted by the trial Court only of a minor offence. It is to my mind obviously illogical to assert that if the accused person had not been charged with and tried for the major offence he could not be convicted of that offence by the appellate Court but if he is charged with the major offence and has been acquitted thereof the appellate Court is empowered to set aside that acquittal under the cloak of altering the finding. In Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465, Dalip Singh J. has gone to the length of stating that

It would thus seem that if u man is convicted under Section 325 and appeals therefrom, the Court should be able to change the finding from Section 325 to Section 326 or Section 304, Part I, or Part II.

With great respect to the learned Judge, I must say that this result is impossible in law. In my judgment if an accused person is charged with a minor offence only, he can never be legally convicted by the appellate Court of a major offence even though he was never tried for it. On the other hand if he is charged with a major offence and the trial Court convicts him only of a minor offence, that finding necessarily involves an acquittal of the major offence and such a finding of acquittal cannot be set aside merely by altering the finding of conviction for the minor offence from which the appeal is preferred. The third form of alteration must relate to cases falling within the purview of Section 236, Criminal P.C. In eases falling within the purview of Sections 234 and 235, Criminal P.C., the two offences with which the accused person is charged and for which he is tried at the same trial are entirely independent offences and I think it has not even been suggested in any case that if the accused person is acquitted of one of these offences but convicted of the other, and he appeals from his conviction, the appellate Court, if it finds that the conviction cannot be maintained, can proceed to examine the finding of acquittal in respect of the other offence and holding it to be erroneous can set it aside and can then record a finding of conviction for that offence in place of the finding of conviction appealed from. The question is thus brought within a narrow compass, that is, whether the appellate Court is empowered to set aside a finding of acquittal if it finds that the process of altering the finding as permitted by Section 237, Criminal P.C., comes into conflict with the finding of acquittal. Under Section 236 the accused person could have been charged with only one of several offences but could have been convicted of any one of the other offences, though he was not charged with them; for instance, it is open to the trial Court to charge an accused person under Section 379, Penal Code, but to convict him in the end of an offence under Section 411, Penal Code, if the case comes within the purview of Section 236, Criminal P.C. In such i a case if the accused person appeals, it would be open to the appellate Court to alter the finding by convicting the accused under Section 403, Penal Code, if that was one of the offences with which the accused persons could have been charged in the trial Court under Section 236, Criminal P.C. The Code provides that an accused person may be charged in the alternative with several offences under Section 236, Criminal P.C., and it is further provided by Section 367, Sub-section (3) that when the conviction is under the Penal Code and it is doubtful under which of two sections or under two parts of the same section of that Code the offence falls, the Court shall distinctly express the same and pass judgment in the alternative. If these provisions are followed, no difficulty need ever arise in the way of the appellate Court in the shape of a finding of acquittal. The appellate Court can convict the accused person of any one of the several offences with which he was either charged or with which he could be charged under Section 236, Criminal P.C. It is, however, open to the trial Court even in such cases to charge the accused specifically with two offences and if in such a case the Court convicts the accused of one offence and definitely acquits him of the other, a difficulty may arise in the appellate Court if it finds that the conviction cannot be maintained and that the finding of acquittal is erroneous.

39. The question then would be : Whether the appellate Court is empowered to 'Set aside the finding of acquittal and convert it into a finding of guilty? If the trial Court had not recorded a definite finding of acquittal, it would have been open to the appellate Court to find the accused guilty of that offence under Section 237, Criminal P.C. The question, and that-is precisely the question for consideration before the Full Bench, is: Whether in such circumstances the appellate Court can set aside a finding of acquittal? As stated above, there is a volume of authority in favour of an affirmative answer to this question. That view is based upon the assumption that the words 'alter the finding' as used in Section 423(1)(b)(2) are words of unrestricted import and, therefore, a finding of acquittal cannot check the process of alteration. For reasons already stated, I have arrived at an entirely different conclusion. In my judgment the words 'alter the finding' do not give an unlimited power to the appellate Court and they must be read as subject to the other general provisions in the Code with the result that the power of alteration must be related to Sections 237 and 238, Criminal P.C., and can operate only within the limits prescribed by those sections. In some quarters great stress has been laid upon the fact that no express words of restriction are to be found in Section 423 (1)(b)(2). In my view, the restriction is necessarily implied in other sections of the Code and I am further of the opinion that it was quite unnecessary for the Legislature to use any express words of restriction because it had clearly provided for the reversal of a finding of acquittal in Clause (a) of Section 423 in a particular manner, that is, in an appeal from acquittal for which provision is made in Section 417, Criminal P.C. It has to be borne in mind that the appellate Court is not merely the High Court but any Court presided over by a Sessions Judge or by a District Magistrate or even by any first class Magistrate empowered under Section 407 of the Code. It seems to be assumed in certain quarters that the Legislature intended to confer the power of setting aside an acquittal upon all the appellate Courts subordinate to the High Court, even though it had prescribed a separate procedure for appeals from acquittal and although it was not prepared to entrust these Courts with the power of enhancing the sentence passed upon an accused person by the trial Court even by a day. I venture to think that this assumption is unreasonable. If the Legislature intended to confer any such power generally on the appellate Court, it would certainly have used some definite words to express its intention particularly after making a clear provision for the reversal of a finding of acquittal in a particular manner in section 423(1)(a). I cannot believe that the Legislature intended to leave the conferment of this wide power on the appellate Courts in general to be deduced from the obviously indefinite phrase 'alter the finding.' In Clause (1)(a) it clearly stated that a finding of acquittal can be reversed by the appellate Court in an appeal from acquittal and when it proceeded to set out the powers of the appellate Court in an appeal from conviction, it could easily have indicated by some express words that the same power of setting aside an acquittal can be exercised also in an appeal from conviction.

40. It may be noted here that the words used by the Legislature are 'alter the finding' and not 'alter any finding.' The unreasonableness of the contention that the power of setting aside an acquittal is deducible from the words 'alter the finding' is rendered still more, patent when, we bear in mind the fact that in giving the right of appeal from an acquittal in Section 417 the Legislature definitely introduced the safeguard that such an appeal shall lie only to the High Court from any original or appellate order of acquittal passed by any Court other than a High Court. We are, therefore, to suppose that the Legislature on the one hand wanted all appeals from acquittal to be heard and decided by the High Court alone and yet it gave the power of setting aside an acquittal to all the appellate Courts subordinate to the High Court merely by using the words 'alter the finding' in Section 423(1)(b)(2). To my mind this is clearly an unreasonable supposition. It has also been pointed out in some cases that the power of the High Court to convert a finding of acquittal into one of conviction has been expressly excluded by the Legislature by Sub-section (4) of Section 439, but there is no such restriction to be found in Section 423. The argument seems to be that Section 439 conferred upon the High Court all the powers of Section 423 and if there was no power in the latter section to convert a finding of acquittal into one of conviction, there was no need to enact Sub-section (4) of Section 439. The fallacy of this argument lies in assuming that the power of converting a finding of acquittal into one of conviction is deducible from the words 'alter the finding' in Section 423(1)(b)(2) and it is suggested that it was this power which was excluded by Sub-section (4) of Section 439.

41. For the reasons already given, I find no basis at all for the assumption that any power to convert a> finding of acquittal into one of conviction is conferred upon the appellate Court by Section 423(1)(b)(2). On the other hand I find that the whole scheme and structure of the Code definitely points to the opposite conclusion. Sub-section (4) of Section 439 was enacted only to make it clear beyond all doubt that the power to convert a finding of acquittal into one of conviction which may be exercised by the High Court in an appeal from acquittal cannot be exercised in any other way. That a misconception on this point was possible is illustrated by the case in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 which went up before their Lordships of the Privy Council. Indeed, I find that the reference to Sub-section (4) of Section 439 really lends strong support to the view which I have taken, for it proves beyond all doubt that the Legislature attached some sanctity to a finding of acquittal and prohibited any disturbance of that finding even by the High Court in any other manner except on an appeal under Section 417 of the Code. This is obviously quite contrary to the intention attributed to the Legislature by the opposite view that all the appellate Courts should have the power of setting aside an acquittal under the cloak of altering the finding of conviction from which an appeal is preferred. It will not be out of place here to mention that the Criminal Procedure Code of 1861 gave no right at all to the Crown to appeal from any judgment of acquittal passed by any criminal Court. Section 407 of that Code stated that there shall be no appeal from a judgment of acquittal passed in any criminal Court. It is important to note that in spite of this total prohibition Section 419 of the same Code provided that

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

I think it may reasonably be inferred from these provisions of the Code of 1861 that the Legislature never contemplated that altering the finding would empower the appellate Court to set aside an acquittal, even though an appeal from such acquittal was totally prohibited. The right to appeal from an acquittal was first conferred on the Local Government by Section 272, Criminal P.C., (Act 10 of 1872), but even in that section it was clearly provided that 'in no other ease shall there be an appeal from a judgment of acquittal passed in any criminal Court.' That Code also pro-vided by Section 280 that the appellate Court 'may alter or reverse the finding and sentence or e order of such Court.' I venture to think that these provisions contained in the Codes of 1861 and 1872 clearly indicate that the power of alteration given to the appellate Court had nothing whatever to do with the setting aside of a finding of acquittal for which a separate procedure was provided. In my judgment the word 'alter' as used in the Codes of 1861 and 1872 could not possibly have included the power to convert a finding of acquittal into one of conviction, and I do not see any reason at all for interpreting the word 'alter' in the present Code in any different sense. It is a well-established rule of interpretation that one portion of a statute should not be so. construed as to be repugnant to| another, and I am definitely of the opinion that this rule would be broken if the words 'alter the finding' used in Section 423(1)(b)(2) are so interpreted as to include the power of converting a finding of acquittal into one of conviction. As I have already pointed out, the Legislature has prescribed a separate procedure for having a finding of acquittal set aside. It has given a right of appeal from such a finding to the Local Government alone and it has further provided that such, an appeal from the judgment of any criminal Court would lie only to the High Court. It is entirely repugnant to these provisions that all the appellate Courts subordinate to the High Court should have the power of converting a finding of acquittal into one of conviction. This is, in my judgment, the strongest reason for holding that the words 'alter the finding' as used in Section 423(1)(b)(2) cannot and should not be so interpreted as to mean that they confer the power of converting a finding of acquittal into one of conviction on all the appellate Courts. In this connexion I consider it appropriate to refer to the case in Nazir Ahmad v. Emperor in which their Lordships of the Privy Council enunciated the rule

that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden.

Their Lordships applied this rule to Section 164, Criminal P.C., and I think it applies with equal force to Sections 417 and 423, Criminal P.C. It was pointed out in the course of argument that if this view is accepted it will cause great inconvenience to the Government in every case in which an accused person is acquitted of one offence though convicted of another, for it will be driven to file an appeal from acquittal instead of relying upon the appellate Court to correct the mistake by altering the finding. It was also pointed out that in such eases the Government will have to file an appeal from acquittal in the High Court while the accused person would file an appeal from his conviction before the Sessions Judge. I have no hesitation in summarily dismissing these considerations as having no bearing at all upon the true interpretation of a statutory provision. Inconvenience to the Crown cannot afford any justification for putting an undue strain upon the language of a statutory provision. The law has deliberately prescribed a special procedure for the setting aside of a finding of acquittal and whether it does or does not cause inconvenience to the Crown that procedure has to be followed. Some people might consider it expedient that the appellate Courts should be armed with the power of speedily correcting the mistake made by a trial Court in acquitting an accused person, but the Legislature must have had its own reasons for disregarding that expediency. The law is no doubt anxious to ensure that an offender receives the proper punishment for his crime, but at the same time it has always been, and, I am sure, will always be zealous to protect a finding of acquittal secured by an accused person from a competent Court after a full trial which is often painfully long and harassing. The Legislature did not consider it safe that all the appellate Courts should be armed with the power of converting a finding of acquittal into one of conviction and so when it gave a right of appeal from an acquittal to the Crown it also introduced the safeguard that the power of setting aside an acquittal shall be exercised only by the highest Court. This intention of the Legislature, which in my judgment is clearly deducible not only from the express words of the statute but also from its scheme and structure, cannot be allowed to be set at naught on the ground of inconvenience to the Crown. I find further that in some cases at least the inconvenience is more imaginary than real. If the Government files an appeal from a finding of acquittal in the High Court and at the same time the accused person files an appeal from his conviction in the Court of the Sessions Judge, the two appeals can always be heard and decided together by the High Court. In other cases in which an accused person is convicted of one offence but acquitted of another, it should not be difficult for the Crown to make up its mind as to whether the conviction is really sustainable or not. I do not see any reason why the Crown should be allowed to rest upon an erroneous finding of conviction t in the hope that if it is maintained by the appellate Court no harm will be done by the wrong acquittal.

42. For these reasons I am of the opinion that in no circumstances can the appellate Court have the power to convert a finding of acquittal into one of conviction under Section 423(1)(b)(2), but the finding must be really one of acquittal, that is, a finding relating to the facts tending to establish the ingredients of the offence and not merely a categorical finding which is on the face of it inconsistent with the finding of conviction recorded by the Court. I would illustrate this by the instance of an accused person being charged under Section 333, Penal Code, for having caused grievous hurt to a public servant and also at the same time under Section 325, Penal Code, for causing a grievous hurt to the same person. If the trial Court convicts the accused under Section 383 and yet by any chance records an order of acquittal in respect of the offence under Section 325, it is obvious that such an order is utterly inconsistent with the conviction under Section 333 which necessarily involves a conviction under Section 325. In such a case if the appellate Court finds that the conviction under Section 333 is not sustainable, because it has not been established that the person to whom the grievous hurt was caused was a public servant, it can reduce the offence to one under Section 325 if it finds upon the evidence that the causing of grievous hurt to that person has been established. In thus reducing the major offence to-the minor offence the appellate Court will really be maintaining the finding of the trial Court for when the trial Court found the accused guilty under Section 333, Penal Code, it necessarily found him guilty under Section 325, Penal Code. In such cases the finding of acquittal can be ignored or set aside as a clerical mistake or blunder apparent on the face of the record. This is however a very extreme ease which does not really affect the view which I have taken.

43. I would therefore state my conclusions as follows : (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 and 238, Criminal P.C., and must operate within the limits prescribed in those sections, (b) This process must stop whenever it comes 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 under Section 417, Criminal P.C. I would therefore answer the question before the Full Bench in the negative.

Hamilton, J.

44. The point which has been referred to this Full Bench is as follows:

Whether a Court of appeal is empowered under Section 423 (1)(b)(2), Criminal P.C., to alter a finding of acquittal into one of conviction.

45. It has been submitted on behalf of the Crown that to 'alter the finding' in Section 423(1)(b)(2) means to substitute for a conviction under a certain section a conviction under another section, that there is no expression showing that there is any limitation while in Section 439 (4) there is a provision to the effect that a High Court cannot convert a finding of acquittal into one of conviction and that there are many decisions supporting the contention of the Crown.

46. The 'finding' in Section 423(1)(b) means, I think, the decision of the Court that the accused is guilty of an offence which is punishable under a certain section of a certain Act, the correctness of which is challenged in the appeal. There may be more than one finding, whether of acquittal or of conviction in one trial and the subject-matter of an appeal may be only one of a number of findings or there may be an appeal against an acquittal and one against a conviction arising from one trial. There is a period of limitation fixed for an appeal and the usual rule is that a decision which has not been challenged within the period of limitation becomes final. In revision the position is different from that in an appeal. One may say that the jurisdiction of a Court in revision is that which it assumes while in appeal it is that which is conferred by the appellant, because in revision the Court may proceed suo motu or at the request of others and its powers are the same in every case.

47. Had it not been prevented by Section 439 (4) from converting a finding of acquittal into one of conviction it could have done so even of its own accord or if the accused had applied in revision. Because the same prohibition does not appear in Section 423 it does not follow that one can convert an acquittal into a conviction in every appeal. One can do so when there is an appeal against an acquittal but the question still remains whether one can do so in an appeal against a conviction. In the Cr. P. Code of 1861, Section 407 provided that there was no appeal from a judgment of acquittal and under Section 419 in an appeal by the accused the Court could alter or reverse the finding and sentence but not so as to enhance any punishment awarded. Sections 423 and 424 provided that findings of dishonest misappropriation or criminal breach of trust were not liable to be reversed or altered on the ground that the offence was one of theft and vice versa and Section 425 provided that in such cases the Court could reduce the sentence within the limits prescribed for the offence which the appellate Court found proved. I find it impossible to hold that in 1861 a Court could do in an appeal from a conviction what can now be done by an appeal against an acquittal but could not be done then. Considering together all the provisions to which I have referred one can see that there were limitations to the alteration of a finding and understand the nature of those limitations.

48. In the Code of 1872 provision was made for an appeal against an acquittal and for enhancement of sentence. By Section 280 the appellate Court could alter or reverse the finding and sentence and could enhance any punishment that had been awarded. It was not stated whether this enhancement could only be made on an appeal against an acquittal, but I think it is reasonable to hold that the power to enhance was given so as not to make the Crown's appeal practically valueless. Taken by themselves the words 'alter the finding' can be given a very wide meaning but I can find nothing to indicate that a different meaning should be given now from that of the year 1861.

49. Secondly, in one case it is not possible to substitute one section for another. When the conviction is under Section 304 with a sentence of less than transportation or under some other section like 325 it is not possible to substitute a conviction under Section 302 because the sentence cannot be enhanced.

50. Thirdly, Section 423 cannot be read independently of other sections of the Code and one could not for instance substitute a conviction of an offence for which the accused was not tried. Once one finds that there is a limitation to the substitution of one offence for another the argument that there can be no limitation because there are no words in Section 423 (1)(b)(2) indicating a limitation falls to the ground and the question which remains is to what extent there is limitation.

51. In my judgment when there has been an acquittal which should have formed the subject of an appeal under Section 423(1)(a) it cannot be set aside in an appeal filed by the accused because to do so would amount to allowing an appeal which had not been filed or to an exercise of revisional powers contrary to section 439(4).

52. I shall now consider certain decisions to which our attention has been called. Queen-Empress v. Jabanullah ('96) 23 Cal. 975. The appellants Jabanulla and Abdul Karim with several others went to the house of Ayatulla and abused him and a certain Safatulla remonstrated. He received two spear wounds and died from them. The Sessions Judge acquitted the appellants of an offence punishable under Section 148 but convicted each under Section 326, on the ground that they had inflicted the injuries. The High Court altered the conviction under Section 326 to one under Section 326 read with Section 149, Penal Code. There was no appeal against the acquittal under Section 148 and that acquittal was not set aside. As regards the conviction, Section 149 makes each member of an unlawful assembly guilty of the offence of which any member of the unlawful assembly is guilty so that if one member has in fact caused grievous hurt the others have in law caused grievous hurt as much as that member has. Members of the unlawful assembly who had not caused the hurt were, because of the provisions of Section 149, guilty of an offence punishable under Section 326, and not of some different offence. This being so, the Crown could not appeal against any acquittal other than the acquittal under Section 148. It could not ask for a conviction under Section 326 (because of Section 149) in lieu of some acquittal. In my opinion the question of reversing an acquittal did not arise. Emperor v. Barka Jetha Majhi ('42) 29 A.I.R. 1942 Pat. 190. Three persons Rabi, Nebi and Meghu had been killed by arrows and among their assailants were the appellants Barka, Langra and Baghraj. Barka was convicted under Section 302 apparently in connexion with the death of Meghu and the other two appellants were convicted under Section 326 but I have not been able to find out to which victim they caused grievous hurt in the opinion of the Sessions Judge. All three appellants had been charged under Section 302 read with Section 149 with the murders of Rabi, Nebi and Meghu and had been acquitted. The learned Judges composing the Bench 'set aside the acquittals under Sections 302/149 and in lieu thereof convicted them under Sections 326/149' and also set aside the convictions under Section 326. I should have set aside the conviction of Barka on the charge of murder, would have maintained the acquittals on charges of murder of the other two appellants and would have maintained the convictions under Section 326 but on different grounds. Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465. The accused was charged under Section 302, convicted under Section 304, and sentenced to six years' rigorous imprisonment. It was held that the High Court could convict under Section 302 and under Section 439 pass a sentence of death or transportation. With all respect to the learned Judges I cannot agree. In view of Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 the Sessions Judge's finding was an acquittal under Section 302, and the Crown could have appealed and, as it did not, the acquittal became final and to set it aside amounted to allowing an appeal which was never filed. To substitute a conviction under Section 302, for one under Section 304 without first enhancing the sentence to transportation by exercising revisional powers would have involved a conviction under Section 302 with an illegal sentence arid then an exercise of revisional powers to substitute a legal sentence for one that was illegal and brought into existence by the Court that exercised revisional powers. To avoid an illegal sentence one would first have had to enhance the sentence under Section 304 to transportation by the exercise of revisional powers then in the appeal to substitute a conviction under Section 302 and finally to exercise once more revisional powers to inflict the death sentence. Had there been a charge under Section 302 and a conviction under Section 325 (and I have seen this happen) it would have been more awkward still. As regards the difficulties pointed out by Dalip Singh J., I do not think they need arise. Under Section 236 the charge and conviction can be in the alternative and any acquittal can be avoided. Under Section 237 there should be a conviction without any acquittal. Under Section 238 there should be a charge of the major offence and if the conviction is of a minor offence it is open to the Crown to file an appeal. If the charge is under Section 325 and the conviction under Section 335 and there is no appeal by the Crown the appellate Court can maintain the conviction under Section 335 even if it thinks there should have been a conviction under Section 325. I think it is the experience of every High Court Judge to find a conviction under Section 304 when it should be under Section 302 and in such cases the appeal is dismissed. Sarda Prasad v. Emperor ('37) 24 A.I.R. 1937 All. 240. The accused was charged (1) with being in possession of illicit liquor and fermented wash; (2) with being in possession of implements for the manufacture of illicit liquor. He was convicted on the second charge and acquitted on the first and the Sessions Judge acquitted him on the second charge and convicted him on the first. The High Court held this to be illegal and ordered a retrial. I am not dealing with the powers that can be exercised under Section 439 and I shall therefore not comment on, this order but as there is a power to order a retrial under Section 423(1)(a) in an appeal from an order of acquittal and under (b) in an appeal from a conviction I think it necessary to say that the order of retrial under Section 423(1)(b)(1) should not be passed to secure a conviction where there was an acquittal for this too would amount to allowing an appeal which had never been filed.

53. As regards the difference between the words 'reverse' and 'alter' it should be remembered that both refer to the finding that the accused is guilty of a certain offence. When one 'alters the finding' by substituting a conviction under a different section there are two stages, the first is that the finding that the accused has committed a certain offence is reversed and second is that a conviction under a different section is brought into existence and when one 'reverses the finding' the second stage instead of a conviction is an acquittal, a discharge, a retrial or committing for trial. The difference lies therefore in the second and not in the first stage.

54. Counsel for the Crown has urged that there may be strange decisions such as for instance that a Court may convict B of causing grievous hurt to A and acquit him of causing simple hurt to him and the appellate Court might hold that grievous hurt was not proved and yet be unable to convict of simple hurt because of the acquittal. The answer to this is that there is always someone prosecuting for the Crown and he should see that proper charges are framed but I think one might further say that this acquittal was not one against which the Crown could have filed an appeal under Section 423(1)(a) and the Court could substitute for the conviction of a major offence a conviction of a minor offence.

55. My answer to the point referred is that a Court of appeal is not empowered under Section 423(1)(b)(2), Criminal P.C., to alter a finding of conviction so as to set aside an acquittal against which there could have been an appeal under Section 423(1)(a).

Dar, J.

56. This is a reference to a Full Bench of this Court of a question of law which has arisen in a criminal appeal which ' is now pending in this Court. The prisoner Zamir Qasim was tried by the Sessions Judge of Ghazipur at Ballia for offences under Sections 120B and 457 and in the alternative under Section 411 or 414, Penal Code. He was convicted of the offences under Sections 120B and 457; there was no express order of acquittal, but/by implication, he was acquitted of offences under Section 411 or 414, Penal Code. In the appeal made by him in this Court a doubt arose as to the correctness of his conviction as also of his acquittal and this gave rise to the question whether his acquittal by implication under Section 411 or 414, Penal Code, could be changed into a conviction by the Bench hearing the appeal. In view of the conflict of authority which exists in regard to this matter the following question of law was formulated by the t Bench hearing the appeal for determination by a larger Bench and in due course it has now come before us for decision : 'Whether a Court of appeal is empowered under Section 423(1)(b)(2) to alter a finding of acquittal into one of conviction.'

57. Section 423(1)(b)(2), the interpretation of which is a matter for consideration in this reference, is a part of a larger section which according to its marginal notes describes the 'powers of appellate Court in disposing of appeal' and is as follows:

423. (1) The appellate Court shall then send for the record of the ease, 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 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 -

(a) in an appeal from an order of acquittal, reverse such order and 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 and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) 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 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 and with or without altering the finding, alter the nature of the sentence, but subject to the provisions 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.

(2) Nothing herein contained shall authorize 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.

58. In some of the clauses of the above section a joint power to 'alter' or 'reverse' is given to the appellate Court (see Sub-section (l), Clause (e) and Sub-section (2)); in some clauses a single power to 'reverse' is given (see Sub-section (1), Clauses (a) and (b) ) and in some clauses a single power to alter is given (see Clauses (b)(2) and (a)). The two words 'alter' and 'reverse' as used in the above section have not the same meaning either in dictionary or in law. According to Murray's New English Dictionary, the word 'alter' means

to make (a thing) otherwise or different in some respect; to make some change in character, shape, condition, position, quantity, value; etc., without changing the thing itself for another; to modify, to change the appearance,

and the word 'reverse' means 'revoke, abrogate, annul (a decree, act, measure, etc.) esp. in legal use with reference to judgments, decrees, forfeitures, etc.' It therefore follows that the power under Section 423(1)(b)(2) is limited to altering the finding and it does not extend to reversing the finding, and it is subject to the general restriction which applies to the whole of Clause (b) viz., that the appellate Court has no power to enhance the sentence.

59. It is generally agreed that the power given to alter the finding under Section 423(1)(b)(2) authorizes the appellate Court to change the conviction from one offence to another in cases where Sections 237 and 238, Criminal P.C., are applicable and also in cases where the accused was charged and tried of some offence but of which he was not acquitted, expressly or by necessary implication, in the Court below. But the judicial opinion in this country at present is divided on the question whether Section 423(1)(b)(2) permits the appellate Court to change the offence so as to include an offence about which there was an express or implied acquittal in the Court below.

60. Clause (1)(b)(2) of Section 423 as it reads expressly sanctions the alteration of offences and it nowhere expressly excludes alteration into an offence of which there is an acquittal. It is also obvious that in cases where the accused is charged of alternative offences, in cases where the acts of the accused fall under several offences, in cases where his acts constitute a major and minor offence and in all cases where facts constituting the offences and the offences are allied and where on account of a mistaken view of law or facts the accused is convicted of some offence and is acquitted of others in circumstances where the finding of acquittal, in pith and substance is a part and parcel of the finding of conviction, it will lead to a manifest failure of justice if the appellate Court has no power to alter the conviction and to make it legally correct.

61. What then is the ground for the restriction of the power of the appellate Court under Clause (1)(b)(2) of Section 423 so as not to include an offence about which there is an acquittal? It was contended at the Bar that law attaches sanctity and finality to an acquittal, right or wrong, and the privilege of questioning an acquittal in public interest has been entrusted by the Legislature to Local Government only and the only method in which an acquittal can be reversed is by a Government appeal under Section 417, Criminal P.C., and of all Courts of appeal by High Court only when exercising powers under Section 423(1)(a), Criminal P.C. I cannot accept this as a correct statement of law. Under Sections 435 and 439, Criminal P.C., the High Court in exercise of its revisional power can set aside any order of acquittal which in its opinion is legally incorrect and order retrial. Under Section 423(1)(b)(l), Criminal P.C., any appellate Court in an appeal by the accused from conviction can order retrial of the accused. And though there is some conflict of authority on the question whether retrial can extend to offences of which he was acquitted, it is generally agreed that if offences fall under Section 236, Criminal P.C., retrial can include acquittals also. No doubt the revisional powers of the High Court as expressed by Section 439, Criminal P.C., are restricted by Clause (4) of that section which prohibits 'a High Court to convert a finding of acquittal into one of conviction.' And this J restriction was held by the' Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 to apply to partial acquittals as also to complete acquittals and the Privy Council further approved in that case the following dictum of Gokul Prasad and Stuart JJ. in Emperor v. Sheodarshan Singh ('22) 9 A.I.R. 1922 All. 487:

We cannot, however, change the conviction into a conviction for murder. Sheo Darshan Singh was acquitted by the Sessions Judge of the offence of murder and we cannot in revision convert a finding of acquittal into one of conviction. The only method by which it would be possible to obtain a conviction of murder would be by an appeal by the Government against the acquittal.

62. But this approval only defines the powers of the High Court in revision and cannot be taken to define the powers of an appellate Court in appeals. And even if it may be extended to appeals, it goes no further than this that a conviction for culpable homicide not amounting to murder cannot be changed into murder; in other words a lesser offence cannot be changed into a greater offence. But it is no authority for the proposition that in alternative charges and in cases mentioned above by me convictions cannot be altered in appeal so as to include acquittals and the appellate Court must submit to the alternative of miscarriage of justice. The revisional power of the High Court under Section 439, Criminal P.C., permits the enhancement of sentence but subject to the condition that a finding of acquittal cannot be changed into a finding of conviction. The powers of the appellate Court under Section 423, Criminal P.C., permit the reversal or alteration of findings subject to the condition that the sentence cannot be enhanced. It is a legitimate argument that when exercising powers under Section 423, Criminal P.C., the appellate Court alters a finding of conviction for a lesser offence into a greater' offence, in some cases the sentence which under that section cannot be enhanced may become inadequate or illegal with reference to the finding arrived at in appeal. It is also possible to take the view that the two powers - appellate and revisional - are distinct and subject to the separate conditions and though in the case of a High Court both powers are vested in one Court, it will not be a legitimate exercise of power for the High Court by combining the two powers in a same case to convert a finding of acquittal into a finding of conviction under Section 423 and then to enhance the sentence under Section 439 and thus achieve by combining the two powers what it was prohibited to do by exercising powers singly. But these arguments apply with equal force to cases in which a more serious charge was tried out but there was no acquittal expressly or by necessary implication about it and there was a conviction about a lesser offence. Every one is agreed that in such a case in exercise of powers under Sections 423 and 439 conviction can be altered and under Section 439 the sentence can also be enhanced. The argument, therefore, of the inappropriateness of sentence relates to the conversion of a lighter offence into a more serious offence, but it had no real connexion with the question of changing an acquittal into conviction.

63. At one time there was a practical unanimity in this country on the interpretation of Section 423(1)(b)(2), Criminal P.C., and the High Courts in India were agreed that the conviction under appeal could be so varied as to include an offence about which there was an acquittal: see Queen-Empress v. Jabanullah ('96) 23 Cal. 975, Romesh Chandra Banerjee v. Emperor ('14) 1 A.I.R. 1914 Cal. 456 at p. 359; Dhanpat Singh v. Emperor ('17) 4 A.I.R. 1917 Pat. 625; Mahangu Singh v. Emperor ('18) 5 A.I.R. 1918 Pat. 257; On Shwe v. Emperor ('24) 11 A.I.R. 1924 Rang. 93; Kan Thein v. Emperor ('26) 13 A.I.R. 1926 Rang. 154; Appana v. Pithani Mahalakshmi ('11) 34 Mad. 545; Golla Hanumappa v. Emperor ('12) 35 Mad. 243; In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258; Emperor v. Sardar (12) 34 All. 115; Dulli v. Emperor ('18) 5 A.I.R. 1918 All. 65. The leading cases on the topic were Queen-Empress v. Jabanullah ('96) 23 Cal. 975 and In re Bali Reddi ('14) 1 A.I.R. 1914 Mad. 258. In so far as these cases proceeded upon the ground that in an appeal in a case of partial conviction and partial acquittal all the findings in the case of acquittal and of conviction necessarily become the subject of appeal and the restriction in revision with regard to conversion of a finding of acquittal into a finding of conviction applies to complete acquittals and not to partial acquittals, their authority is shaken by the decision of the Privy Council in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254. But whether they still remain good law in entirety or with modifications or whether they have been totally abrogated is a matter on which at present the judicial authority is in conflict.

64. One view of the matter which has emerged since the decision in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 is that under Section 423(1)(b)(2) the appellate Court is powerless to change one conviction into another if it involves inclusion of an offence about which there was an acquittal. This view seems to proceed upon two assumptions, one of which is that in Section 423(1)(b)(2) the word 'finding' means and is equivalent to the section under which conviction is made and as Clause (1)(b)(2) confers power to alter and not to reverse the finding when the appellate Court changes the section in reality the finding is reversed and not altered. There is no valid reason why the word 'finding' should be taken to mean the section of statute alone and why it should not include the conclusions of the Court on facts which constitute the offence, the conclusion of the Court that the accused is not innocent but he is guilty and lastly the conclusion of the Court that the offence falls within a particular section of the statute. If this meaning be given to the word 'finding' then in cases in which the appellate Court accepts in part or in whole the conclusion of the Court below as to facts constituting the offence and when it maintains in its entirety the conclusion of the trial Court that the prisoner is guilty and not innocent but differs as to the conclusion with regard to the section of statute which is applicable to the offence the appellate Court in such a case, in pith and substance, is only altering the finding of the Court below and is not reversing it. The other assumption is that in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 the Privy Council approved the statement of law that the only way in which a finding of acquittal can be altered or reversed is by a Government appeal. In my opinion, this assumption is also not justified for the reasons which I have given above.

65. The cases in support of this view are Sarda Prasad v. Emperor : AIR1937All240 and Jado Rahim v. Emperor ('38) 25 A.I.R. 1938 Sind. 202. In Sarda Prasad v. Emperor : AIR1937All240 the accused was charged with two distinct offences and convicted of one. The finding of acquittal was not a part and parcel of the finding of conviction and was not the subject of appeal. The appellate Court under Section 423(1)(b)(2) had not altered any finding but had reversed it. In Jado Rahim v. Emperor ('38) 25 A.I.R. 1938 Sind. 202 accused was convicted of a lesser offence and a question arose of converting the lesser offence into a greater offence. In both cases to avoid miscarriage of justice the acquittal was set aside and a retrial was ordered. It is difficult to see any justification for retrial. Either the appellate Court has the power to alter the conviction so as to include an acquittal but if it has not it has no alternative but to submit to the miscarriage of justice.

66. The other view which has emerged since the decision in Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 is that the appellate Court so long as it does not reverse the finding and only alters it can include an acquittal and can turn a lesser offence into a greater offence and if the appellate Court is a High Court it can combine its revisional and appellate powers and can also enhance the sentence. According to this view Kishan Singh v. Emperor ('28) 15 A.I.R. 1928 P.C. 254 does not interpret the powers of the appellate Court or the combined revisional and appellate powers of a High Court and it is limited to the revisional powers of the High Court only, and it leaves the authority of old eases referred to above by me substantially unshaken: see Bawa Singh v. Emperor ('41) 28 A.I.R. 1941 Lah. 465; Emperor v. Barka Jetha Majhi ('42) 29 A.I.R. 1942 Pat. 190; Hanuman Sarma v. Emperor : AIR1932Cal723 ; Lakhansingh v. Emperor ('34) 21 A.I.R. 1934 Oudh. 200; Raghunath v. Emperor : AIR1933All565 ; and Emperor v. Jagannath : AIR1937All353 .

67. In an unreported Sia Ram v. Emperor Cr. Ref. No. 128 of 1941 of this Court decided on 25th August 1941, Allsop and Verma JJ., have expressed the view that power to alter a conviction so as to include an acquittal exists, but the two powers of a High Court - appellate and revisional - cannot be combined to prejudice the accused. And in Moti Bam v. Emperor : AIR1936All758 , Allsop J., has expressed the view that in exercise of appellate powers a lighter offence cannot be changed into a more serious offence of which the accused had been acquitted. For the purpose of this reference it is not necessary to express any opinion on the question whether the High Court can or should by combining its appellate and revisional powers change a finding of acquittal into conviction and then enhance the sentence and thus achieve by combining the two powers what it is prohibited to do by exercise of powers singly. Nor is it necessary to express any opinion on the question that in an appeal by an accused his position should not be made worse than it was before the appeal, and the lighter offence should not be changed into a more serious offence.

68. But on the question of pure construction of Clause (1)(b)(2) of Section 423, Criminal P.C., which is the only matter before me in this reference I see no justification for reading a prohibition in that clause to the effect that a finding of acquittal cannot be altered into a finding of conviction. The power of alteration, however, remains subject to the restrictions which are contained in the clause itself and in other provisions of the Code which are legitimately applicable to it. I would therefore answer the question, the subject of this reference, in the affirmative.

69. The answer to the question referred is in the affirmative.


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