Judgement

Consolidated Appeals (No.79 of 1946), by special leave, from a judgment of the High Court in its appellate criminal jurisdiction (October 29, 1945) which affirmed a judgment of the same court in its original criminal jurisdiction (May 3, 1945).

The following facts and statutory provisions are taken from the judgment of the Judicial Committee. The appellants were tried by the High Court, with certain other persons, for conspiracy under s. 120B of the Indian Penal Code, and abetment to commit murder under s. 302 read with s. 109, and were convicted on both charges, and sentenced to transportation for life. They appealed to the High Court, and by an order dated July 12, 1945, the Appellate Court allowed them to appeal on matters of fact as well as of law under s. 411A, sub-s.1 (b], of the Code of Criminal Procedure.

Section 411A was introduced into the Code of Criminal Procedure by Act XXVI of 1943, which enacted as follows

“Insertion of new s. 411A in Act V. of 1898.—After s. 411 of the Code of Criminal Procedure, 1898 (V. of 1898) (herein-after referred to as the said Code), the following section shall be inserted, namely 411A. Appeal from sentence of High Court.—(1.) Without prejudice to the provisions of s. 449 any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in s. 418 or s. 423, sub-s.2, or in the Letters Patent of any High Court, appeal to the High Court—

"(a) against the conviction on any ground of appeal which involves a matter of law only;

"(b) with the leave of the appellate Court, or upon the certificate of the judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be sufficient ground of appeal; and

"(c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law.

"(2.) Notwithstanding anything contained in s. 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original-criminal jurisdiction, and such appeal may, not-withstanding anything contained in s. 418, or s. 423, sub-s. 2, or in the Letters Patent of any High Court, but subject to the restrictions imposed by cl. (b) and cl. (c) of sub-s.1 of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law."

The Act contained certain consequential amendments of the Code and of the Letters Patent to which it is not necessary to refer.

Law Rep. 74 Ind. App. 132 ( 1946- 1947) Thiagaraja Bhagavathar V. King-Emperor

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In the appeal of the appellants to the High Court at Madras (Leach C. J. and Lakshmana Rao J.) the leading judgment was given by the learned Chief Justice. He considered the powers which the court possessed where leave to appeal on the facts had been given. He noticed that cls. (a), (b) and (c) of sub-s.1 of s. 411A followed the language of cls. (a), (b) and (c) of s. 3 of the English Criminal Appeal Act, 1907. But he also noticed that there was omitted from the Indian Act any provision corresponding to s. 4, sub-s. 1, of the English Act which provides " The Court of Criminal Appeal on any such appeal " against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is "unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the " appellant was convicted should be set aside on the ground of " a wrong decision of any question of law or that on any " ground there was a miscarriage of justice, and in any other "case shall dismiss the appeal." The learned Chief Justice then discussed various decisions of English courts on the Criminal Appeal Act, 1