An appeal against an acquittal cannot proceed in the absence of an accused person.

1. This is an appeal by the State Government under Section 417, Criminal P. C., against the acquittal of the Respondents by the First Additional Sessions Judge, Amravati. All the Respondents were tried jointly along with three other persons, Balwantsingh, Ramchandra and Chauthmal. The Respondents were charged with offences under Sections 396 and 120-B, I. P. C. whereas the other three persons, were tried for offences under Sections 399 and 120-B, I. P. C. The Respondent Champat was also charged with the offence under Section 302, I. P. C. and tried for the same. The Court of Session acquitted the Respondents and other three persons of the offences for which they were tried. The State Government has not appealed from the acquittal of the three persons other than the Respondents and has confined its appeal to the acquittal of the Respondents of the offence under Section 396, I. P. C.

2. After the admission of the appeal, this Court ordered issue of notices to the Respondents under Section 422, Criminal P. C. Notices were served only on Respondents Maroti Dhobi, Gangaram and Champatrao but not on Respondent Vishwanath.

3. On 16-2-1953 an application was made on behalf of the State for issue of a proclamation under Section 87. Criminal P. C, against Vishwanath. On 24-2-1953 this Court passed the following order on the application:

Shri W. B. Pendharkar for the State and Shri. Kotwal for the pauper accused persons are heard. The application for issue of proclamation is supported by an affidavit. As Respondent No. 1 Vishwanath was not found, he could not be arrested and the notice under Section 422, Criminal P. C, could not also be served on him. We are satisfied that there is reason to believe that he is either absconding or concealing himself so that the warrant may not be executed. Issue proclamation under Section 87, Criminal P. C., and it be published in the manner laid down in Sub-section (2) of S. 87.

4. The proclamation was reported to have been duly published and therefore the case was set down for hearing before Hemeon J. and one of us (Choudhuri J.) on 30-6-1953 when the following order was passed:

.... The Additional Government Pleader requests one month's time to receive instructions on the point whether the appeal be proceeded with except against the absconding accused - Vishwanath - who is absent though a proclamation was published under Section 87, Criminal P. C., for his appearance in this Court today.

One month's time granted.

5. Thereafter the appeal came up before us on 4-8-1953. On that date we ordered that we would hear the appeal in respect of the Respondents other than Vishwanath as was done in - 'Provincial Govt. C. P. & Berar v. Shyamlal', Cri. Appeal No. 253 of 1949, D/- 21-7-1950 (Nag) (A) and deferred our order regarding Vishwanath till the conclusion of the hearing of the appeal against Maroti Dhobi, Gangaram and Champatrao. On 12-8-1953, the arguments in the appeal were concluded and we ordered that the appeal with regard to Vishwanath shall remain pending 'sine die' and that we would give reasons for this direction in our judgment.

6. The course which we followed of splitting up the appeal was, as we have already mentioned, followed by this Court in one case in the past - 'Cri. Appeal No. 253 of 1949, D/- 21-7-1950 (Nag) (A), in which the Division Bench consisting of Hidayatullah J. and one of us (Mudholkar J.) observed as follows:

Section 422, Criminal P. C., makes it obligatory on the Court to cause notice of appeal under Section 417, Criminal P. C, to be served on the accused person whose acquittal is challenged. The Criminal P. C. does not set out the procedure to be adopted where personal service of the notice cannot be effected on the accused person. What course should be followed in case personal service cannot be effected because the correct address of an accused person is not known, is not a matter which we are required to deal with at the moment. It may be that in such a case the provisions o