Mohinder Singh and Ors. Etc. v. State of Punjab and Anr.

Judgment

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 Arms Act. After recording the entire evidence the trial court convicted Mohinder Singh under section 304 Part I !PC and sentenced 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 SUPRl!Mll COURT REPORTS 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 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 acquitted accused on a petition filed by them held that there was no 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 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, 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 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 concerned. 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 agree with the High Court that there was any interpolation with MOlllNDBR SINGH v. PUNJAB (Fazal A.//, J.) respect to acquitted accused.

It may be that various agencies may 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 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· 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 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 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 heard by a different bench of the Hieb Court. N.V.K. Appeals 111/owed.