Holding

A High Court cannot remand a criminal appeal to a Sessions Court for a fresh judgment; it must decide the appeal itself or order a re‑trial, and the appeals were properly constituted.

Summary

Four persons were tried before a Sessions Judge for murder and related offences; Mohinder Singh was convicted under Section 304 IPC and sentenced to seven years' rigorous imprisonment, while the other three were acquitted. The State appealed the acquittals and also appealed Mohinder Singh's acquittal under Section 302 IPC, while Mohinder Singh appealed his conviction. The Punjab and Haryana High Court, without analysing the evidence, held that the Sessions Judge's judgment was infirm and remanded the case to the Sessions Court for a fresh judgment, also questioning whether a proper governmental sanction existed for the appeals against the acquitted. The Supreme Court held that the High Court, as the final fact‑finder, could not remit a criminal appeal to the Sessions Court for a fresh judgment; it must either decide the appeal itself or order a re‑trial. The Court also found that a clear direction had been given to the Public Prosecutor to file appeals against all four accused, so the appeals were properly constituted. Consequently, the Supreme Court set aside the High Court's order and directed that the appeals be reheard on their merits, preferably by a different bench of the High Court.

Issues considered

Whether a High Court can remand a criminal appeal to a Sessions Court for a fresh judgment.
Whether a direction from the State Government to the Public Prosecutor suffices as sanction for filing appeals against acquitted persons.
Whether the High Court erred in holding that the appeals against the acquitted were not properly presented.

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 366, s. 377, s. 378
Indian Penal Code, 1860s. 302, s. 304, s. 307, s. 34

Subjects

criminal appealappellate jurisdictionHigh CourtSessions Courtsanction for appealpublic prosecutorremandfresh judgmentre‑trialCriminal Procedure Code

Judgment

488

A
MOHINDER SINGH AND ORS. ETC.

v.

STATE OF PUNJAB AND ANR.
B December 20, 1984

(S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.]

Criminal Procedure Code 1973, Sections 377, 378 and 366.

c Appeal against acquittal by State Governinent to High Court-Powers of
appellate COllrt-What are-High CoArl final court of facts-Correctness and
acceptability of evidence-Duty-To be satisfied-Open to re-appraise e,ide11ce
and decide appeal or order re-trial-Not proper to remand case to trial court
for writing a fresh judgmint-Proper direction by Govern1nen1 to file appeal-
Existence of·-Hi'gk Court whether competent to go- tlcrou!h tile saRcti•11 ft/,.

D The four appellants in the appeal were triod by the Sc5sions Judie
for offences under Sections 302/34 I. P. C. and also under Section 27 of
the Arms Act 1959. The· court convicted the first appellant under Section
304 Part I I. P. C. and sentenced him to 1 years rigorous imprisonment,
and acquitted the others.

The first appellant filed an appeal before the High Court and the
E
.
State Government filed appeals against thC acquittal of tho other appellants
and also of the first appellar.t under Section 302 I. P. C. The Hi11h Court
.
came to a general conclus.ion that the judgment of the Sessions Judge was
not in accordance with law and had not dealt with some of the points, raised
in the appeals, and remanded the case back to the trial court for writing· a
fresh and proper judgment. As far as the acquitted accused were concerned
although tho appeals were filed by the Public Prosecutor as directed by the
;~ F
State Government, the High Court held that there was no proper direction
, by the Government for filing the appeals except in the case of the first
i appellant.

! Allowing the Appeals to this Court,

G HELD: Assuming that the High Court was right in thinking the
judgment suffered from some infirmity and there were certain facts which
were not taken into consideration they would not be grounds for 'remao~
ding the case to the Sessiolls Court to writ a proper judgment. Tho High
Court .itself was a final court of facts and it was its duty to satisfy itself
regarding the correctness and acceptability of the evidence. It was entirely
open to the High Court to re·appraise the evidence once again to consider
the facts overlooked by the Sessions Judge and to have decided the" appeal
MOHINDER SINGH v. PUNJAB (Fazal All, J.) 489

itself instead of remandina: tho case to the Sessions Court. The proper A
order in such a case should be either to decide the case itself or to send it
for re-trial. The question of re-trial does not arise in the instant case.
The order of the Hia:h Court is set aside and the High Court is directed to
re·hear the appeals on merits according to law. [4910-F]

2. Whenever, tho Governmeat seeks opinion it consults various agencies
namely the Advocate-General, Public Prosecutor, Legal Remembrancer and B
others and thereafter the order is p•ssed by the Government through the
Secretory incbarge. [490E]

In the instance case, it is not in dispute that the Public Prosecutor was
directed by the Under Secretary to the Government in charge to file appi:als
against all the appellants. A clenr direction had been given to the Public
Prosecutor to file appeals against all the four accused and as regards the c
.. first appellant against his acquitt;:il under Section 302 IPC. The High Court
at the instance of the acquitted <!.ccused tri ~d to re-open the matter in ordor
to find out the mariner and various stages through which the sanction to file
an appeal was cbanaliscd. This was nol «t all proper for the Hii;h Court
to do. [490E; G; P]

D
CRIMINAL APPPELLATE JURISDICTION : Criminal Appeal Nos.
335-36 and 523 of 1982.

From the Judgment and order dated the 31st of March, 1982
of the High Court of Punjlb and Haryana in Criminal Revision
No. 977 of 1980. E

R·L. Kohli, M.K. Dua, S.K. Mehta, P.N. Puri and R.C. Kohli
for the appellants.

S.K. Bagga for the respondents.
F
The Judgment of the Court was delivered by

FAZAL Au, J. In these appeals by special leave four persons,
namely, Mohinder Singh, Gurcharan Singh, Bharpur Singh and
Jagvinder Singh were tried by the Sessions Judge for offences under
Sections 302/34 and 307/34 !PC and also under Section 27 of the
G
Arms Act. After recording the entire evidence the trial court
convicted Mohinder Singh under section 304 Part I !PC and sen-
tenced him to 7 years rigorous imprisonment. The other three
accused were acquitted by the Sessions Judge. Mohinder Singh filed
an appeal before the High Court of Punjab and Haryana agamst his
conviction and sentence. The State Government also filed an appeal
against Gurcharan Singh, Bharpur Singh and Jagvinder Singh so far H
'.)

490 SUPRl!Mll COURT REPORTS (1985) 2 S.C.R.

A as their acquittal was concerned and against Mohinder Singh so far
as his acquittal under Section 302 IPC was concerned. The High
Court without making any real attempt to analyse and appreciate
the evidence Jed in support of tile prosecution came to a general
·eonclusion that the judgment of the learned Sessions Judge was not
in accordance with law and that he had not dealt with some point1
B or omitted to consider some points, and remanded the case back to
the trial court for writing a fresh and proper judgment. So far as
the acquitted accused were concerned although the appeal was filed
by the Public Prosecutor as directed by the State Government yet
the High Court on its own or perhaps at the instance of the acquit-
ted accused on a petition filed by them held that there was no
c proper direction by the Government for filing the appeal except in
case of Mohinder Singh.
There was undoubtedly a direction. to the Public Prosecutor to
file appeal against acquitted accused as indicated above. The High
Court, however, at the instance of the acquitted accused tried to
D re·open the matter in order to find out the manner and various stages
through which the sanction to file an appeal was chanalised. With
due respects to the learned judges we feel that this was not at all
proper for the High Court to do. Whenever, a Government seeks
opinion it consults· various agencies, namely, the Advocate General,

E
Public Prosector, Legal Remembrancer and others and thereafter
the order is passed by the Government through the Secretary
· incharge. In the instant case it was not disputed that the Public
•-·
Prosecutor was directed by the Under Secretary to the Government
in charge to file appeal against all ·the appellants. The High
Court, however, seems to have gone deeper into' the matter by
making a roving inquiry into what had happened when the matter
F was under consideration of the Government and how things shapped
and held after making ·this roving inquiry, that the authority given
to the Public Prosecutor was only in respect of Mohinder Singh and
not others. Therefore, the High Court was of the opinon that
direction to file appeal against acquitted accused Gurcharan Singh,
Bharpur Singh and Jagvinder Singh was non-est and hence appeal
filed by the State was not properly presented so far as they are con-
G
cerned. It appears that a clear direction has been given to the Public
Prosecutor to file appeal against all the four accused, three of tliem •
against acquittal and as regards Mohinder Singh against his acquittal
under Section 302 !PC.
Having gone through the entire record we are unable to
H agree with the High Court that there was any interpolation with
MOlllNDBR SINGH v. PUNJAB (Fazal A.//, J.) 491

respect to acquitted accused. It may be that various agencies may A
have oxpressed diffcrenl views but by and large the final decision
takeu by the Under Secretary prevailed as a result of which the
Public Prosecutor was authorised to file an appeal before the Hiak
Court against all the acquitted accused. In such a aituation, thora·
fore, the High Court erred in holding that the appeal presented by
the State was not properly presented as against the said throe B
• accuaed, and it should have heard the appeal on merits alongwith
the caac of Mohinder Singh. As we intend to send the case back
to the High Court for fresh decision in accordance with law after
taking into consideration the fact that the appeal by the State was
properly constituted it is not necessary for us to give further details.
We might, however, mention that the High Court instead of ana· c
,, Jysing and appreciating evidence, remanded the case back to the
Sessions Judge for writing a proper judgment. In the first place,
assuming that the High Court was right in thinking that the judg·
• • ment suffered from some infirmities and there were certain facts
which were not taken into consideration they would not be grounds D
remanding the case to the Sessions Court to write a proper judgment.
The High Court itself was a final court of facts and it was its duty to
satisfy itself regarding the correctneso and acceptability of the
ovidonce. Thus, it was entirely open to the High Court to re·

- appraise the evidence once again to consider the facts which may
have been overlooked by the Sessions Judge and it should have
decided the appeal itself instead of re,nanding the case to the
Seasions Court. It being a moot point, we refrain from exprcssina
any opinion on the question whether th" first appellate court of fact
can in a criminal case send the case back to the Sessions Court for
writing a fresh judgment. The proper ordor in such a case should
be either to decide the case itself or to send it for re·trial. l'h~
question of re-trial does not arise in the view we have taken in this F
case.

We, therefore, allow one Appeal 523 of 1982 and the other
appeals in part set aside the order of the High Court and direct to
re.hear the appeals on merits according to law. We think it propor
and expedient in the interest of justice that this appeal should be
G
heard by a different bench of the Hieb Court.

N.V.K. Appeals 111/owed.