The power of an appellate Court under Sec. 423(1)(b) of the Criminal P. C. is limited to altering the finding of the trial court in cases where there is an appeal from a conviction, and does not extend to cases where there is an appeal from an acquittal.

Banerji, J.

1. This revision has been referred to the Full Bench in order to consider whether the appellate Court can, in exercise of its power under Sec. 423, Sub-section (1), Clause (b) of the Criminal P. C., alter the finding of the trial court so as to convert an acquittal into conviction.

2. A few facts are necessary to be stated. There was an occurrence on 1-8-51 resulting in the petitioners being charged lor assault and noting under Sections 323 and 147, Penal Code, respectively. The trying Magistrate convicted the petitioners under Sec.323, Penal Code, and fined them Rs. 50.00 each. He recorded an order of discharge under Sec.147, Penal Code, on an erroneous view of the procedure.

He should have acquitted them under that sec-Lion, and it will be assumed for the purpose of this case that the petitioners wore acquitted under Sec.147, Penal Code. The petitioners then appealed. The appellate Court acquitted one appellant under Sec.323, Penal Code, and maintained the conviction of three under the same section. As regards three others, they were acquitted under Sec.323, Penal Code, but convicted under Sec.147, Penal Code, under which section they had been acquitted by the trying Magistrate. The appellate Court, however, maintained the same sentence awarded by the Magistrate. The point taken up in revision is that the Court of appeal below had erred in law in convicting three of the petitioners under Sec.147, Penal Code, of which they were acquitted by the trying Magistrate,

3. The point involved for decision by this Bench has had a peculiar trend in the course of about 60 years. There have been innumerable decisions on the point involved recently, and it will not he of much profit to refer to them all. It may be pointed out that, of late, there has been a sharp division of opinion on the subject concerned and the cases fall into two groups, in strong opposition to each other. The earliest case is --Krishna Dhan V/s. Queen-Empress, 22 Cal 377 (A), which was relied upon by a Division Bench of the Calcutta High Court in Queen-Empress V/s. Jebanulla, 23 Cal 975 (B).

This case, and not the earlier one, has often been quoted with either approval or disapproval in later decisions of several High Courts. It was followed by a Division Bench of the Madras High Court in Golla Hanamappa V/s. Emperor, 35 Mad 243 (C). So far as our High Court is concerned, the earliest case reported is -- Dhanpat Singh V/s. Emperor, AIR 1917 Pat 625 (D), where Chapman, J. held that) the appellate Court had jurisdiction to reverse a finding of acquittal upon facts on which there was a conviction in the first Court under another provision of the law against which an appeal had been preferred.

The learned Judge, in arriving at his conclusion, relied upon the case reported in 35 Mad 243 (C), and two other cases. The point was again raised in the case of Mahangu Singh V/s. Emperor, AIR 1918 Pat 257 (E), where their Lordships were of the opinion that the appellate Court convicting an appellant under a section of which he had been acquitted was not illegal. They accepted the proposition laid down in, 23 Cal 975 (B), and extended the principle laid down by Chapman, J. in the case of AIR 1917 Pat 625 (D).In the earlier Patna case there was no controversy regarding the findings of act. The appellant had been charged for criminal breach of trust for theft & under Sec.29 of the Police Act. He was acquitted under Sec.29, Police Act, but convicted under Sections 409 and 379 Penal Code. The learned Sessions Judge found the appellant guilty also under Sec.29 of the Police Act and set aside the order of acquittal under that section. Chapman, J. found that the dishonest intention of the accused had not been proved.

The question thn remaining to be answered was whether the appellate court could record an order of conviction under Sec.29 of the Police Act, of which the appellant had been acquitted by the trial Court. His Lordship realised the difficulty of the paint