1. The present appeal was filed by the State under Section 417 of the Code of Criminal Procedure against Mooratsingh, Nathoo and Ramprasad against acquittal of the aforesaid persons of the charges, under Sections 364, 302 and 149 of the Indian Penal code, recorded by the Additional Sessions Judge, Sagar in Sessions Trial No. 107 of 1973, dated 30-4-1973. The appeal was admitted by this Court vide its order dated 13-9-1973 against Mooratsingh only.
2. After the admission of this appeal, an Interlocutory Application No. 1386 of 1973 was filed pn behalf of the respondent Mooratsingh praying for a direction to the State Government for the wihdrawal of the appeal for the reasons stated in the said application. This application, was subsequently withdrawn as would be evident from this Court's order dated 1-2-1974. Subsequent to this, an Interlocutory Application No. 986 of 1974 has been filed on behalf of the State-appellant purporting to be under Section 482 (561-A of the Old Criminal Procedure Code) of Criminal Procedure Code, 1973, praying that the State be allowed to withdraw the appeal.
3. The instant appeal was filed and admitted when the Criminal Procedure Code, 1898 (hereinafter referred to as Code) was in force; hence'' it is this Code which would be applicable to the instant appeal.
4. The application has been filed to invoke the inherent powers of the Court. The section in the Code providing for the inherent powers of the Court is 561-A (The corresponding section in the the Criminal Procedure Code of 1973 is 482 which is a verbatim reproduction of this section), which is set out below:
'Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such* orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.' On analysing, the section, we find that it lays down the following tests to attract its applicability;
(i) that an order is essential to give-effect to the order made under the Code or
(ii) that an order is essential to prevent the abuse of the process of any Court; or
(iii) that an order is otherwise necessary to secure the ends of justice. This section saves the inherent powers of the High Court to mould the procedure-subject to the statutory provision. It does not override the express provision of law. There is a long catena of case law supporting our this view of the section, but as this is a well settled position in law we do not propose to refer those cases.
It is true that there is no specifier provision in the Code providing specifically either for withdrawal or refusal of withdrawal of appeal, but as we shall presently discuss, there are provisions relating to withdrawal of prosecution and the powers ofthe Appellate Court, on construction whereof alone, the question under consideration has to be determined and bearing the aforesaid test for the applicability of Section 561-A, the question of exercising the inherent powers of this Court does not arise.
5. In the Code we have Chapter XXXI concerning appeals, which deals with the powers of the Appellate Court, then we have Sections 333 and 494, which specifically deal with the withdrawal of prosecution. At this stage, we may safely say that Section 333 of the Code, by no stretching, can be pressed into service for the question under consideration. The very reading of the section makes it clear that it relates to the jury trial before a High Court where before the verdict of the Advocate-General can enter nolle pfosequi.
6. The actual question with which we are posed is
'Whether the Appellate Court is competent to permit the withdrawal of an appeal against acquittal once when it is not summarily dismissed under Section 421 of the Code and is admitted for hearing.'
In view of the question posed, our first attention would be attracted towards the aforesaid Chapter XXXI of the Code concerning the appeals. The relevant sections of this Chapter, for the purpose of the problem in hand, are Sections 421 to 423 and in particular Section 423 in the background of the facts of this case (facts as stated in paragraphs 1 and 2 of this judgment).
7. Section 421 empowers the appellate Court to dismiss an appeal summarily to quote 'if it considers that there is no sufficient ground for interfering.' If an appeal is not dismissed under this section and, as, by established practice of the Courts, is called 'admitted' albeit, the observation of the Privy Council in Emperor v. Dahu AIR 1935 PC 89 : (36 Cri LJ 838) the words 'admitted' and 'admission' in reference to an appeal which is not summarily dismissed, do not appear to be happily chosen. However, once the appeal is thus admitted, Section 422 comes into play and it is a peremptory requirement that the appellate Court should then issue notices in the manner and to the persons in conformity with that section for the hearing of the appeal. The key words, in this section relevant for the problem in hand, are '.... at which such appeal will be heard.' Then comes Section 423. which is set out below including its caption:
423. Powers of Appellate Court im disposing of appeal. - (1) The Appellate; Court shall then send for the record of the case, if such .record is not already ire. Court, After perusing such record, ands. hearing the appellant or his pleader, if' he appears, and the Public Prosecuor. if, he appears, and, in case of an appeal under Section 411A Sub-section (2), or Section 417, ther accused, if he appears, the Court may, if it considers that there is no sufficient groundv for interfering, dismiss the appeal, of 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 tos law;
(b) in an appeal from a conviction.(1) reverse the finding and, sentence, and1 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;
in an appeal from any other order,, alter or reverse such order;
make any amendment or any consequential or incidental order that may be just or proper.
(1A) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith eontained in., Clause (b) of Sub-section (1):
Provided that the sentence shall not. be so enhanced, unless the accused has-had an opportunity of showing cause; against such enhancement.(2) Nothing herein contained shalfc authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion, that such verdict is erroneous owing to * misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.7-A. As the very caption of the: forequQted section indicates, it prescribes! the powers of the Appellate Court regarding the disposal of an appeal which! has not been dismissed summarily and! notices for its hearing as required by*. Section 422 have been issued. In other words, it is a stage which comes when the petition of appeal has travelled the path of Sections 421 and 422. The powers of the Appellate Court at this stage are circumscribed by the forequoted Section 423. In this section there is no provision for the withdrawal of an appeal. The expressions 'shall then, send for the record' and 'after perusing such record' in this section unveil the intention of the Legislature that the Appellate Court must peruse the record and decide the appeal on. merit. This is further . clear from the words 'at which such appeal will be heard' in the foregoing Section 422. The notice that is issued under that section is -for the hearing of the appeal.
8. At this stage we wo_uld advert to the Privy Council decision in AIR 1935 PC 89 : (36 Cri LJ 8381 (supra), the relevant observations whereof are set out below:
The jurisdiction of the Court in *hese matters is statutory, and the Court, however admirable ite intentions, is not entitled to go outside these provisions and in effect to legislate for itself.
* * * *'Failing summary dismissal, the provisions of Sections 422 and 423 apply and, in their Lordships' opinion, the provisions as to notices in Section 422 and the provisions as to sending for the record in Section 423 are clearly peremptory and there can be no room for revision at that stage. The words 'admitted' and 'admission in reference to appeals which are not summarily dismissed, though not infrequently used in the Courts in India,do not appear to their Lordships to be Tiappily chosen. From their ordinary meaning they would imply that the appeal requires to be admitted at this stage, whereas the Appellate Courts are bound to deal with the appeal, and they can only do so when they have complied with the preliminary steps of giving the statutory notices under Section 422, and sending for the record, which wi|l enable the Court to deal with the appeal in accordance with the provisions of Section 423.'
* * * *'Accordingly, their Lordships will humbly advice His Majesty that the ap- peals should be allowed, and that it should ' i>e declared that, upon the true construction of the Criminal Procedure Code, the Appellate Court is not entitled to dismiss an appeal summarily in terms of Section 421 unless the Court is satisfied that there is no sufficient ground for interfering in accordance with the,relief sought in the appeal, and that where the appeal is not dismissed summarily, the Court id bound, in order to the disposal of the appeal, to comply with the provisions of Section 422 as to the notice, and with the provisions of Section 423 as to sending for the record, if such record is not already in Court.'
9. We will also refer to the decision of their Lordships of the Supreme Court in Rabari Ghela Jadav v. State of Bombay : 1960CriLJ1156 . In this case, the Appellate Court had, in purported exercise of the powers given under Section 421, summarily dismissed the appeal,as regards conviction and directed the appeal should b heard only on the ^question of sentence. Hence the question 'arose, had the Appellate Court the jurisdiction to so order. It was in this context that Sections 421, 422 and 423 came up for construction. Their Lordships of the supreme Court, quoting the aforesaid Privy Council decision AlR 1935 PC 89 : (36 Cri LJ 83&) (supra) with approval, seems to be of th view that the provisions contained in the aforesaid sections are exhaustive and art peremptory and the appellate Court cannot act outside those provisions. After quoting the aforesaid sections, their Lordships observed as under:
It is clear from these provisions that on receiving the petition and a copy under Section 419, the Appellate Court shall peruse the same and if it considers, that there is no sufficient ground for interfering it wjll dismiss the appeal summarily, and that if the Appellate Court does no dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard. The recording of an order that the appeal is admitted, when it is not summarily dismissed is not a happily chosen expression as was pointed out by the Privy Council in 62 Ind App 129 : (AIR 1935 PC 89 = 36 Cri LJ 838). Section 421 gives ample power to the Appellate Court to dismiss an appeal summarily if it considers that there is n sufficient ground for interfering. On the other hand, if it does not dismiss the appeal summarily then it is obligatory upon it to cause notice of the appeal to be given to the appellant and to such officer as the State Government may appoint ia this behalf of the time and place at whick such appeal will be heard.'* * * *It seems to us, however, having regard to the provisions of the Code, that while an Appellate Court has power to dismiss an appeal summarily, if it considers that there is no sufficient ground lor interfering, it has no power to direct, as in the case before us, that the appeal shall be heard only on the point of sentence. Such an order is not an order of, summary dismissal under Section 421 and neither is it an order in terms of Section 422 of the Code. When an appeal is filed it is an appeal against conviction and sentence and it is not, permissible for am Appellate Court to direct that it shall b heard only on the question of sentence.'
10. Practically all the High Court* are unanimous on the point that an appeal which has not been dismissed summarily cannot dismissed at the stage of hearing for default of appearance. It is the duty of the Appellate Court to go through the record and dispose of the appeal on its merit. This is the conclusion arrived at on the interpretation of the expression 'After perusing the record'. (See Queen Empress v. Pohpi (1891) ILR 13 All 17L (FB). Trimbak Bal-want v. Emperor. AIR 1926 Bom 548 (1) : (27 Cri LJ 1167) and Dashrath v. State, 1957 MPC 530 : (1957 Cri LJ 1405 (1)).
11. From the fore-quoted decisions the law that discerns is that the Appellate Court cannot act beyond the provisions contained in Sections 421 to 423 and as such there being no provision for the withdrawal of appeal in Section 423, the Appellate Court cannot permit its withdrawal: doing so would be acting in violation of the requirements of Section 423.
12. Having construed the powers of the Appellate Court with reference to 'Section 423, we would like to consider whether appeals are also included in the -ambit of Section 494 which specifically deals with withdrawals of prosecution. This section is set out below:
'494. Any public Prosecutor may, with the consent of the Court, in cases tried by jury before the retrun of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal:
(a) if it is made before a charge has lieen framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code -no charge is required, he shall be acquitted in respect of such offence or offences.'
According to the fore-quoted Section 494, the last stage upto which the prosecution can be withdrawan is in respect of cases tried by jury upto the return of the verdict by the jury, and in other cases before the judgment is pronounced. In the instant case, admittedly, there was no iury trial. Hence the last stage would be upto the pronouncement of judgment.
13. Now, to the consideration of its applicability to appeal, the essential requirement implied in the words 'withdrawal of prosecution' is that the prosecution must be pending. So the first thing to attract the applicability of this section is to see whether the prosecution is pending. Neither the word 'prosecution' is defined in the Code nor it is anywhere specifically provided in the Code upto -what stages it would be said to be pend-for the purposes of Section 494. Their Lordships of the Supreme Court had of course in a decision Kalawati v. State of Himachal Pradesh : 1953CriLJ668 observed that an appeal against acquittal is a pending prosecution. The observations of their Lordships are set out below:
'If there is no punishment for the offence as a result of the prosecution, the Sub-clause (2) of Article 20 has no application; and secondly, an appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution.' (Para 9) The aforesaid observations of their Lordships were in context of construing the scope of Article 20(2) of the Constitution. In our opinion, therefore, those observations cannot be pressed into service construing, the scope of Section 494.
14. The analogy of the Code off Civil Procedure that appeal is nothing but a continuation of the suit cannot be applied in the case of criminal appeals. The reason is apparent. In the Code of Civil Procedure there is Section 107 which reads as below:
107 (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
The Sub-section (2) of the aforesaid Section is very pertinent. It is because of the existence of this sub-section, it is said that appeal is nothing but a continuation of the suit. And it is because of this subsection that the provision of Order XXIII, Rule 1, Code of Civil Procedure, regarding the withdrawal of suit can be pressed into service for the withdrawal of appeal as well. There is no such provision contained in Section 423 of the Code which is reproduced hereinabove in paragraph 7 of this judgment.
15. Further, on construing the expression 'before the judgment is pronounced' in Section 494 of the Code to include the judgment of the Appellate Court and as such if it is held that Section 494 of the Code includes in its ambit the withdrawal of an appeal also, it would be tantamount to creating a conflict in Sectiqns 494 and 423 of the Code.
16. In Section 494 of the Code the consent of the Court is a must. And if that section is held to apply to appeals, it would mean that the Appellate Court is competent to give consent for the withdrawal of an aPPeal, whereas as we have construed Section 423, the powers of the Appellate Court are exhaustively dealt with in Section 423 to deal with the appeal after it is admitted for hearing according to which it must decide it on merit. It is a fundamental rule of interpretation of statutes that the provisions of a statute should be so read as to harmonise with one another and the provisions af one section cannot be used to defeat those of another. Therefore, on the harmonious reading of the two sections, we are of the. firm opinion that Section 494 cannot be pressed into service for the withdrawal of an appeal.
17. Before a Full Bench of the erstwhile High Court of Lahore a similar question, i. e., whether the appellate Court can permit the withdrawal of an appeal against a judgment of acquittal once when the appeal was not dismissed summarily under Section 421 and the statutory notices -under Section 422 were issued, had arisen. The Full Bench in its decision in Emperor v. Ghulam Mohammad AIR 1942 Lah 296 : (44 Cri LJ 14) while construing Section 423 of the Code, held that such a course was not permissible under that section. The relevant observations of the decision are reproduced below:
'From all these considerations, it appears clear to me that the Legislature have never contemplated any withdrawal of an appeal'once lodged whether by the accused or by the Crown and that once the appeal had been lodged and admitted, it is not in the power of any Court nor in the power of the appellant to allow the appeal to be withdrawn. The Court is bound once the appeal is admitted to proceed under Section 421 or under Sections 422 and 423 to decide the appeal on the merits.'
18. As a result of the foregoing discussion, we hold that the withdrawal of the instant appeal cannot be permitted. I. A, No. 986 of 1974, therefore, stands rejected and we order that the appeal be now listed for hearing on merit.