State of Andhra Pradesh vs Thadi Narayana
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Criminal Appeal No. 222 of 1959; Criminal Appeal No. 112 of 1961
Decision Date: 24 July 1961
Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta
In the case titled State of Andhra Pradesh versus Thadi Narayana, the Supreme Court of India delivered its judgment on 24 July 1961. The opinion was authored by Justice P.B. Gajendragadkar, who sat on the bench together with Justices K.N. Wanchoo and K.C. Das Gupta. The petition was presented by the State of Andhra Pradesh and the respondent was identified as Thadi Narayana. The decision was reported in the 1962 volume of the All India Reporter at page 240 and also in the 1962 Supreme Court Reports (Second Part) at page 904, with later citations appearing in reported decisions of 1966 and 1968. The matter concerned a criminal appeal arising from an acquittal on certain charges and a conviction on others, and required the Court to examine the powers of an appellate court under section 423(1)(b) of the Code of Criminal Procedure, 1898 (V of 1898).
The factual background disclosed that the accused had been tried for offences punishable under section 302 and section 392 of the Indian Penal Code. The Sessions Judge had acquitted the accused of both of those offences, but had convicted her under section 411 of the same Code. The accused then filed an appeal before the High Court challenging the conviction under section 411. The State did not appeal the acquittal, and the High Court did not issue any notice to the accused under section 439(2). The High Court proceeded to set aside the conviction under section 411 as well as the acquittals under sections 302 and 392, and it ordered that a retrial be conducted on the original charges.
The accused contended that the High Court lacked jurisdiction to overturn the acquittals and to direct a retrial on the original charges. The Supreme Court held that while the High Court was exercising powers conferred by section 423(1)(b) in the appeal against the conviction under section 411, it had no authority to set aside the acquittal granted by the Sessions Judge for the offences under sections 302 and 392. The Court explained that section 423(1)(b) is limited to appeals against orders of conviction and sentence, and the powers under that provision must be confined to the conviction and sentence themselves. An order of acquittal that is not challenged by an appeal under section 417 of the Code of Criminal Procedure, and against which no action is taken under section 439, becomes final and cannot be indirectly challenged in a separate appeal against a conviction. The Court further clarified that it is erroneous to assume that the entire case is before the High Court when it entertains an appeal limited to a conviction. The power under section 423(1)(b) is intended for cases covered by sections 236 to 238 of the Code of Criminal Procedure, and the phrase “alter the finding” in sub‑paragraph (2) of that section does not include the authority to modify a finding of acquittal. The Court relied on the earlier decisions in Kishan Singh v. The King‑Emperor (1928) L.R. 55 I.A. 390 and Jayaram Vithoba v. The State of Bombay (1935) 2 S.C.R. to support its reasoning.
The matters before this Court were the two criminal appeals filed by special leave. The first appeal, identified as Criminal Appeal No 222 of 1959, challenged the judgment and order dated 24 February 1959 that had been issued by the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No 636 of 1958. The second appeal, recorded as Criminal Appeal No 112 of 1961, contested the judgment and order dated 15 July 1958 rendered by the same High Court in Criminal Appeal No 237 of 1957. Counsel K R Chaudhuri and T M Sen appeared for the appellant in the first appeal, while P Ram Reddy represented the respondent. In the second appeal, P Ram Reddy acted for the appellant and the same counsel, K R Chaudhuri and T M Sen, appeared for the respondent. The judgments were pronounced on 24 July 1961, and the opinion of the Court was delivered by Justice Gajendragadkar. The principal issue that this Court was asked to resolve concerned the scope of the appellate powers conferred on a High Court by section 423(1)(b) of the Code of Criminal Procedure when it hears an appeal filed by a convicted person against a conviction and sentence. Specifically, the question was whether, while exercising those powers, the High Court could set aside an acquittal that the trial court had recorded in respect of a charge that was not the direct subject of the appeal. The Court noted that different High Courts had expressed divergent views on this point, and that even within a single High Court conflicting judgments could be found in the reported authorities. To illustrate the controversy, the Court referred to the facts of the case that gave rise to the present appeal. In the Court of Sessions for the Visakhapatnam Division, the respondent, Thadi Narayana, had been prosecuted by the State of Andhra Pradesh for offences under sections 302 and 392 of the Indian Penal Code. The prosecution alleged that on the night of 27 December 1956, at approximately meal‑time in the locality of Gangacholapenta, the respondent stabbed a minor girl named K Sriramulamma, thereby committing murder punishable under section 302. The same allegations further claimed that during the same incident the respondent had taken from the victim four pairs of gold Konakammulu and one pair of gold Alakalu, constituting robbery under section 392. When the trial concluded on 16 April 1957, the learned trial judge held that the prosecution had failed to prove the charges under sections 302 and 392 beyond a reasonable doubt and consequently acquitted the respondent of those offences. Nevertheless, the judge found that the respondent had committed an offence under section 411, convicted her of that charge, and sentenced her to two years of rigorous imprisonment. Dissatisfied with the conviction and sentence imposed under section 411, the respondent lodged an appeal under the provisions governing appeals by persons in custody, commonly referred to as a jail appeal, before the High Court.
The appeal from the High Court of Andhra Pradesh was heard by Justice Sanjeeva Rao Naidu. By his judgment delivered on 22 July 1958, the judge concluded that a gross miscarriage of justice had occurred in the case and that the sole remedy was to order a retrial on the original charges under sections 302 and 392 of the Indian Penal Code so that the accused could be properly tried and, if evidence proved guilt, convicted for those offences. Consequently, the conviction and sentence imposed under section 411 were set aside and the matter was remanded to the trial court for a fresh trial on the charges already framed against the accused.
When the retrial began on 3 November 1958, the respondent filed an application before the trial judge, recorded as Criminal M.P. No. 242 of 1958. The application contended that conducting a trial for the offences under sections 302 and 392 was impermissible because the accused had previously been acquitted of those charges at the original trial, invoking the principle of autrefois acquit. The appellant challenged the validity of this plea and argued that, by virtue of the High Court’s order directing a retrial, the trial court was legally bound to proceed with the said retrial.
The trial judge accepted the appellant’s contention. He observed that he was obligated to obey the directions issued by the High Court and that examining the merits of the respondent’s plea would exceed his jurisdiction, as such an examination would inevitably require a review of the correctness of the High Court’s order for retrial. Accordingly, the trial court rejected the respondent’s application.
Against the trial court’s order, the respondent filed a Criminal Revision Application numbered 636 of 1958 before the High Court. The revision petition was placed before a Full Bench because it raised two significant questions of law. The first question was whether, in a situation where a Sessions Court tried an accused for murder and robbery, acquitted the accused of those charges, and convicted her only under section 411, the High Court could set aside the conviction and sentence under section 411 and order a retrial on the murder and robbery charges when the State Government had not appealed the acquittal on those charges. The second question concerned whether, after the High Court’s order, the Sessions Court could again frame charges under sections 302 and 392, and whether the accused could still plead the defence of autrefois acquit under section 403 of the Criminal Procedure Code despite the High Court’s direction.
In the matter before the Full Bench, the first question presented was whether the accused could invoke the statutory bar of “AUTREFOIS ACQUIT” under section 403 of the Code of Criminal Procedure. The Bench answered that, except when the revisional powers defined in section 439 of the Code are exercised in accordance with the limitations contained in that provision, the High Court did not have authority to order a retrial on any charge on which the trial court had previously acquitted the accused. The Bench clarified that the High Court could reverse a conviction and could order a retrial on that particular charge alone, and it quoted that the court “it is empowered to reverse the conviction and order a retrial on that charge alone.” Thus, the power to revisit an acquittal was confined to the narrow scope provided by the revisional provisions and could not be employed to reopen every charge that had led to an acquittal.
The second question concerned whether the accused could still plead the bar of autrefois acquit under section 403 despite an order of the High Court. The Full Bench held that the accused was indeed entitled to rely on the bar of autrefois acquit under section 403 unless the High Court had made a definitive adjudication on the acquittal either pursuant to section 423(1)(a) or under the revisional power of section 439 of the Code. Consequently, the revision application filed by the respondent was allowed. The respondent’s plea under section 403 was upheld, and the Bench ordered that a retrial for the offences punishable under sections 302 and 392 of the Indian Penal Code could not proceed. This order was issued on 11 March 1959. The appellant, dissatisfied with that order, obtained special leave to bring the matter before this Court.
The appellate powers that govern the disposal of appeals are set out in section 423 of the Code of Criminal Procedure, which lies in Chapter XXXI dealing with appeals, references and revisions. The present appeal primarily concerns the provisions of subsection (1)(b) of section 423, although it is convenient to read subsection (1)(a) together with subsection (1)(b) for a comprehensive understanding. Section 423(1) directs that the appellate court shall first obtain the case record, if it is not already before the court, and then, after reviewing the record, hear the appellant or his pleader if he appears, the public prosecutor if he appears, and, where the appeal arises under section 411A, subsection (2) or section 417, the accused if he appears. After such hearing, the court may, if it finds no sufficient ground for interference, dismiss the appeal; or, in an appeal from an order of acquittal, may reverse that order and direct that further inquiry be made, or may order that the accused be retried or committed for trial as the case may require, or may find the accused guilty and pass a sentence according to law. In an appeal from a conviction, the court may reverse the finding and sentence and acquit or discharge the accused, or order a retrial by a subordinate competent court, or may alter the finding while maintaining the sentence, reduce the sentence with or without altering the finding, or alter the nature of the sentence, subject to the limitations prescribed in the Code.
In considering the effect of section 106 sub‑section (3), the Court emphasized that the provision must not be interpreted so as to enlarge its scope. Section 423(1)(a) deals expressly with an appeal from an order of acquittal and authorises the appellate court to reverse that order, to order further inquiry, to direct that the accused be tried or committed for trial, or alternatively to find the accused guilty and pass a sentence according to law. While evaluating the powers granted to an appellate court for an appeal against an acquittal, it is essential to note that the only forum where an appeal may be filed against an original or appellate order of acquittal is the High Court. Consequently, the powers conferred by section 423(1)(a) can be exercised solely by the High Court and not by any other appellate court. Under section 408, the Court of Sessions is an appellate court for appeals from convictions handed down by an Assistant Sessions Judge, a District Magistrate or any other magistrate, but no appeal against an order of acquittal issued by those authorities lies to the Court of Sessions. All appeals against acquittal, whether from the trial court or an appellate court, fall exclusively within the jurisdiction of the High Court; therefore the authority described in section 423(1)(a) is limited to that court. This limitation influences the interpretation of the words used in section 423(1)(b)(2). Section 423(1)(b)(1) addresses an appeal from a conviction and empowers the appellate court to reverse the finding of guilt and the accompanying sentence, to acquit or discharge the accused, or to order a retrial before a competent subordinate court or to commit the accused for trial. The expression “the finding and sentence” is correlative, indicating that the finding of guilt is the cause and the sentence is the effect; thus the appellate court may set aside both the finding of guilt and the sentence and substitute any of the orders specified therein. In this view, section 423(1)(b)(1) is clearly confined to appeals against convictions and sentences, and the powers it confers are conditioned on that circumstance. The argument that the clause permits the reversal of an acquittal order cannot be accepted.
In this matter the Court observed that the provision under discussion could not be employed to reverse an acquittal order that had been granted to a party for an offence while that same party was simultaneously pursuing an appeal against a conviction for a different offence that had been proved. Accordingly, the Court held that the order issued by Justice Naidu could not be justified on the basis of that provision. The Court further noted that Justice Naidu had not acted under section 439 of the Code while hearing the respondent’s appeal against her conviction. Although the learned judge recognised that the appeal was a jail‑appeal and that the respondent was unrepresented, he directed Mr A. Gangadhara Rao, an advocate of the Court, to appear as amicus curiae to argue on the respondent’s behalf. However, as the Full Bench pointed out, the record plainly showed that neither the respondent nor the appointed amicus curiae received any notice pursuant to section 439(2) of the Code, and the advocate, let alone the respondent, was not informed that the judge intended to invoke his powers under section 439 in relation to the offences punishable under sections 302 and 392. This was despite the fact that the appellant had not filed an appeal against the acquittal order concerning those offences. Consequently, the Court found it unnecessary to examine the scope and effect of sections 423 and 439 read together, because the only statutory provision that the order of Justice Naidu purported to rely upon was section 423(1)(b)(2), and that provision alone required analysis.
The Court also recorded the argument presented by counsel for the appellant, Mr Choudhury, who contended that the phrase “alter the finding” should be interpreted in light of the principle that when the High Court hears an appeal against conviction, the appellate proceedings are essentially a continuation of the trial proceedings, meaning the entire case remains pending before the appellate court. Accordingly, the argument asserted that the High Court, exercising the powers conferred by section 423(1)(b)(2), was not limited solely to the order of conviction that formed the subject of the appeal, but possessed authority over the whole set of proceedings against the accused, and that this broader context should guide the construction of “alter the finding.” The Court rejected this line of reasoning, holding that it was not well founded. It explained that the scheme of section 423 makes clear that when a convicted person files an appeal against a conviction, the appellate court’s jurisdiction is confined to the conviction order and matters directly incidental to it. An order of acquittal granted to an accused person falls outside the ambit of that jurisdiction and therefore cannot be altered under the cited provision.
In this case, the Court explained that an accused person may be the subject of an appeal under section 417 of the Code, and that section 423(1)(a) expressly governs the powers of the High Court when dealing with such appeals against orders of acquittal. The Court observed that, prima facie, if an order of acquittal is not challenged by an appeal contemplated by section 417 and no action is taken by the High Court under section 439, that order of acquittal becomes final and cannot be indirectly attacked by the State in opposing an appeal filed by a convicted person against his conviction.
The Court further noted that when several offences are charged against an accused, the trial proceeds as one case; however, if the accused is acquitted of some offences and convicted of others, the character, scope and extent of the appellate proceedings are necessarily determined by the nature of the appeal presented before the appellate court. Accordingly, if the State prefers an appeal against an order of acquittal and the convicted person does not appeal his conviction, only the order of acquittal falls for consideration by the appellate court and the order of conviction is not before it. Conversely, if the convicted person challenges the order of conviction but the State does not challenge the order of acquittal, only the order of conviction is before the appellate court and the order of acquittal is not considered. The Court therefore rejected the assumption that the whole case is before the High Court when it entertains an appeal against conviction, and held that such an assumption cannot be used to interpret the expression “alter the finding.”
In this connection, the Court recalled that only the High Court is authorised to entertain appeals against acquittal under section 417 of the Code, whereas the provisions of section 423(1)(b) apply to all appellate courts. Consequently, the meaning of the expression “alter the finding” cannot vary depending on whether the appellate court is the High Court or a Court of Sessions. It is common ground that a Court of Sessions, as an appellate court, cannot alter the finding of acquittal in accordance with section 423(1)(b)(2). The argument that the High Court can do so would create two different interpretations of the same expression, which the Court found inappropriate. The Court was therefore inclined to hold that, just as a Court of Sessions is not entitled to alter the finding of acquittal when exercising its powers under section 423(1)(b)(2), the High Court is likewise not entitled to do so.
The Court concluded that the expression “alter the finding” has a single meaning: it refers to altering the finding of conviction and not the finding of acquittal. Moreover, if the expression were intended to include the power to reverse a finding of acquittal, the purpose of section 423(1)(a), which deals separately with appeals from orders of acquittal, would be difficult to understand.
The Court remarked that if the provision were intended to encompass orders of acquittal, it would be difficult to discern the reason for enacting section 423(1)(a) at all. It noted that section 423(1)(a) deals expressly and separately with appeals from orders of acquittal, and therefore it was reasonable to infer that the appellate authority to deal with such acquittal orders was confined exclusively to that sub‑section. Conversely, the power to deal with orders of conviction was confined exclusively to section 423(1)(b). Consequently, the overall scheme of section 423 was inconsistent with the argument that clause (2) of section 423(1)(b) covered orders of acquittal and authorised the appellate court to alter those orders. In construing the expression “alter the finding”, the Court held that the words “the finding” must refer to the finding of conviction because the clause commences with the words “in an appeal from a conviction”. Reading the phrase in the context of its opening words made it clear that “the finding” could only signify the finding of conviction or guilt and not any finding of acquittal. The Court further explained that the clause was concerned with appeals from convictions, and it was the finding of conviction that the appellate court was empowered to alter. It distinguished the term “alter” from the term “reverse”; while section 423(1)(b)(1) confers on the High Court the power to reverse an order of conviction, the power created by the phrase “alter the finding” is limited to alteration, that is, modification rather than obliteration of the order. This distinction reinforced the conclusion that the provision targeted the finding of conviction rather than a finding of acquittal or innocence. The Court also observed that section 423(1)(b)(2) explicitly refers to the sentence and requires that, even if the finding is altered, the sentence must remain in force. This linkage between finding and sentence indicated that the finding which could be altered under the clause was one that had led to the imposition of a sentence on the accused. Accordingly, the clause permits the sentence to be retained even after alteration of the finding, and it also allows the sentence to be reduced with or without alteration of the finding. The reference to the sentence in both scenarios showed that the provision contemplated alteration of a conviction‑based finding that resulted in sentencing. The Court then noted that this raises the question of the categories of cases in which the power may be exercised. It pointed out that the answer is furnished by sections 236, 237 and 238. Section 236, for example, was enacted separately to empower the High Court, in the interest of justice, to examine orders of acquittal; if the High Court is satisfied that a particular acquittal order requires revision, it may, on its own motion, exercise its power to revise that order. The legislature has
In this case the Court observed that the legislature had deliberately given the High Court wide authority under section 439 in order to serve the interests of justice, and therefore it was highly unlikely that Parliament intended to grant a comparable power under section 423(1)(b)(2). The Court then turned to another line of argument that is sometimes invoked to support a broader reading of the phrase “alter the finding”. It is argued that section 439 is limited to situations where there is a clear and complete order of acquittal, whereas section 423(1)(b)(2) would extend to cases of implied or partial acquittal. It is also contended that section 439(4) expressly prevents the High Court from converting an acquittal finding into a conviction, while no such restriction exists in section 423. The Court found that both of these contentions were without merit. Regarding the claim that implied acquittal could be reviewed under section 423(1)(b)(2), the Court referred to the authoritative decision of the Privy Council, which had rejected that line of reasoning.
The Court recounted the Privy Council’s decision in Kishan Singh v. The King‑Emperor (1) (1928) 55 I.A. 390. In that case the appellant had been tried by a Sessions Judge for murder under section 302 and was instead convicted of culpable homicide not amounting to murder under section 304, receiving a sentence of five years’ rigorous imprisonment in accordance with section 238(2) of the Code. The trial court made no express order of acquittal on the murder charge. The State Government did not appeal the conviction but sought revision on the ground that the appellant should have been convicted of murder and that the sentence was insufficient. The High Court, on revision, convicted the appellant of murder and imposed the death penalty. The Privy Council overturned that order, holding that the trial court’s finding amounted to an acquittal on the murder charge and that, consequently, section 439(4) barred the High Court from exercising jurisdiction on revision to impose a conviction for that charge. The Privy Council further rejected the argument that section 439(4) should be read as applying only to cases of complete acquittal, stating that the language of the subsection is clear and admits no qualification. Therefore, any attempt to limit the operation of section 439(4) to “complete acquittal” cases could not be entertained, and the suggestion that section 423(1)(b)(2) covers implied or partial acquittal while section 439 deals solely with express and complete acquittal was deemed untenable. This reasoning confirmed that the High Court could not, under section 423(1)(b)(2), convert an acquittal finding into a conviction.
In this matter the judges of the Privy Council were unable to accept the view that subsection 439(4) should be limited to cases of a complete acquittal, holding that the language of the provision is plain and admits no ambiguity, and that the qualification introduced by the learned judges cannot be justified. They explained that any effort to restrict the operation of subsection 439(4) to situations described as a “complete acquittal” must be rejected, and it would be futile to argue that section 423(1)(b)(2) applies to instances of implied or partial acquittal because subsection 439 deals exclusively with express and complete acquittals. The Privy Council, while setting aside the High Court’s conviction for murder, observed that the High Court had acted without jurisdiction and therefore could not accept the contention that the appellant suffered no prejudice from the erroneous order. This decision, they noted, clearly establishes that when exercising the powers granted by section 423(1)(b), a High Court is not empowered to convert an acquittal into a conviction; such a conversion may only be effected through the procedure prescribed in section 439 of the Code. Regarding the argument that subsection 439(4) imposes a specific limitation, the Council found that no comparable restriction can be read into section 423(1)(b), since orders of acquittal fall outside the scope of that clause. Consequently, it would be unreasonable to suggest that, because subsection 439(4) limits the High Court’s authority, the Court may, on an appeal against conviction, alter a finding of acquittal recorded at trial in favour of the accused. Accordingly, the Court affirmed that the Full Bench of the Andhra High Court correctly concluded that Justice Naidu acted without jurisdiction when he altered the acquittal and the order of acquittal granted to the respondent concerning offences under sections 302 and 392 while dealing with the respondent’s appeal against a conviction under section 411. In this connection the Court also referred to observations made by Justice Venkatarama Ayyar, speaking for the Court in Jayaram Vithoba v. State of Bombay, where the Court addressed the contention that it lacked power under section 423(1)(b) to award a sentence under section 148 when the accused was charged under sections 324 and 148 of the Indian Penal Code, observing that the High Court possessed ample power to transpose a sentence provided the transposition did not amount to an enhancement.
The Court observed that the provision for transposition of a sentence under section 423(1)(b) is limited to altering a finding of guilt and maintaining the sentence, and it may be invoked only when the finding of guilt under one statutory provision is changed to a finding of guilt under another. The provision draws a clear distinction between a reversal of a finding and an alteration of a finding. These observations align with the view that the scope and effect of section 423(1)(b) are confined to such alteration, a view that the Court shares. At the outset of the judgment, the Court noted that the question presented in the present appeal has attracted divergent opinions among the courts. The Court, however, declined to analyse each of the several decisions cited, because it considered that a detailed examination of the facts of all those cases and a scrutiny of the reasons for the differing conclusions would not serve any useful purpose. Accordingly, the Court limited itself to a broad statement of the authorities relied upon by the parties. The respondent relied upon the decisions in Indra Kumar Nath v. The State (1), The State v. Amlesh Chandra Ray (2), Fulo v. State (3) (Full Bench) and Taj Khan v. Rex (4) (Full Bench). The appellant, on the other hand, relied upon the decisions in Krishna Dhan Mandal v. Queen‑Empress (5), Queen‑Empress v. Jabanulla (6), the cases reported respectively in A.I.R. (1954) Cal. 375, L.R. (1953) Cal. 302, I.L.R. 35 Pat. 144 (1956) and A.I.R. 1932 All. 369, as well as the older authorities (1895) I.L.R. 22 Cal. 377 and (1896) I.L.R. 23 Cal. 975. Further authorities cited by the respondent included In Re Illuru Lakshmaih, Golla Hanumappa v. Emperor, Re K. Bali Reddi, In Re Rangiah, Baua Singh v. The Crown (Full Bench) and the majority judgment in Emperor v. Zamir Qasim. The minority view expressed by Mulla J. in Emperor v. Zamir Qasim (6) was also relied upon by the respondent, which contains a careful and exhaustive discussion of the issue.
The Court then turned to the second issue that remained to be considered, which concerned the jurisdiction of the Full Bench. Counsel for the State argued that the Full Bench had acted beyond its jurisdiction in entertaining the plea raised by the respondent under section 403, contending that the judgment delivered by Naidu J. could not be revised by the High Court in view of the provisions of section 369 of the Code of Criminal Procedure. The Court recalled that it had previously mentioned that this point had already been decided in favour of the respondent by the Full Bench. The record showed that the Full Bench’s judgment did not specifically address the effect of the provisions of section 369. Nevertheless, the Full Bench held, in substance, that the order passed by Naidu J. lay outside the authority conferred on the High Court by section 423(1)(b)(2) and that, consequently, it could be treated as a nullity. The Court noted that it would not adjudicate this particular point in the present appeal, having already allowed the respondent’s application for special leave and condoned the delay in filing the petition.
The Court observed that the order of the lower judge was passed without jurisdiction and was therefore a nullity. It clarified that it did not intend to resolve that particular point in the present appeal because the issue had already been addressed in earlier authorities, namely 1 A. I. R. 1952 Mad. 101; (2) 1912 I.L.R. 35 Mad. 243; (3) 1914 I.L.R. 37 Mad. 119; (4) A. I. R. 1954 Mys. 122; (5) 1942 I.L.R. 23 Lah. 129; and (6) I.L.R. (1944) All. 403. The Court noted that counsel appearing for the respondent, Mr Rama Reddy, had filed an application for special leave to challenge the order of the lower judge. This application was identified as Special Leave Petition (Criminal) No 476 of 1961, in which the respondent also sought an excuse for the delay in filing. Considering the highly unusual circumstances surrounding the filing, the Court found no difficulty in condoning the delay and in granting special leave to appeal the order. In fairness, the Court added that the opposing counsel, Mr Choudhury, did not contest the respondent’s request for an excuse of delay in the present proceedings.
Having obtained the special leave, the Court now possessed Criminal Appeal No 112 of 1961, filed against the judgment and order of the lower judge. This raised the academic question of whether the Full Bench had the authority to consider the validity of that judgment and order. The Court held that the respondent was fully entitled to challenge the validity of the order in her appeal and, having concluded that the order was passed without jurisdiction, it allowed the appeal and set aside the order. Consequently, Criminal Appeal No 112 of 1961 filed by the respondent, Thadi Narayana, was allowed, and the High Court’s order in Criminal Appeal No 237 of 1957, which had sent the case back for retrial on the original charges under sections 302 and 392 of the Indian Penal Code, was set aside. The effect of this decision was to restore the trial court’s earlier acquittal of the respondent for those offences. The State had not filed any appeal against the High Court’s decision in Criminal Appeal No 237 of 1957, where the conviction of Thadi Narayana under section 411 and the accompanying sentence had been set aside, while the court ordered a retrial for the major offences under sections 302 and 392. Accordingly, the acquittal concerning section 411 remained in force. In the circumstances of the case, this outcome was unavoidable. Finally, the Court dismissed Criminal Appeal No 222 of 1959, which had been preferred by the State against the decision of the Full Bench.
In the present proceedings the Court recorded two separate determinations concerning pending appeals. First, the appeal that had been instituted in the year 1961 was examined and the Court decided to permit that appeal, thereby granting the relief sought therein. Second, the Court turned to the matter identified as Criminal Appeal numbered 222 of 1959, which had been filed by the State, and after consideration the Court concluded that the appeal could not be sustained and consequently ordered its dismissal. The effect of these two orders was that the relief requested in the 1961 appeal was allowed, while the request for relief contained in Criminal Appeal No 222 of 1959 was rejected. No further reasons or observations were recorded by the Court with respect to these decisions, and the orders were entered as final determinations on the respective appeals.