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Case Number

Criminal Appeal No. 573 of 1927

Attorney(S)

P.B Shingle, Government Pleader, for the Crown.
D.R Manerikar, for the accused.
The appeal was heard by Fawcett and Mirza, JJ., on January 19, 1928. Their Lordships after hearing arguments came to the conclusion that the order of acquittal was correct; but they adjourned the case for argument as to whether or not there should be a conviction of the accused under section 193 of the Indian Penal Code by the High Court in exercise of its powers under section 423(1)(a) of the Criminal Procedure Code.
The case was accordingly argued on the further point on January 23, 1928.

Judges

Mr. Fawcett
Mr. Mirza, JJ.

Acts

SECTION 423 CRIMINAL PROCEDURE CODE
SECTION 238 CRIMINAL PROCEDURE CODE
SECTION 309 CRIMINAL PROCEDURE CODE
SECTION 237 CRIMINAL PROCEDURE CODE
sections 154 and 174 of the Criminal Procedure Code;
provisions of section 195, sub-section (1), clause (b),
clause of section 193 of the Indian Penal Code.
section 193 of the Indian Penal Code,
section 201 of the Indian Penal Code,
section 302 of the Indian Penal Code.
section 211 of the Indian Penal Code,
section 500 of the Indian Penal Code,
section 193, Indian Penal Code,
clause (b) of sub-section (1)

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Smart Summary

Structured Summary of Opinion (Fawcett, J.)

Factual and Procedural Background

The opinion arises from an appeal (by Government) from an acquittal entered in the Sessions Court. The accused had been tried in the Sessions Court in proceedings concerning the death of his wife. Evidence at the trial included testimony (from the Kazi and Sharif Hassan) that wet clothes were placed on the river bank; the Sessions Judge recorded that this evidence showed the accused had placed the wet clothes there to support the theory that his wife had been washing clothes at the river bank. The appellate question addressed was whether the High Court could convict the accused of an offence under section 193 of the Indian Penal Code (fabricating false evidence) although he had not been charged with that offence in the Sessions Court trial.

Counsel on record included the Government Pleader and Mr. Manerikar for the accused. The matter involved consideration of several provisions of the Criminal Procedure Code (notably sections 237, 238, 309, 309 and 423) and whether procedural safeguards (such as the taking of assessors' opinions and the scope of Government's appeal) limited the Court's power to convict for an offence not specifically charged at trial.

Legal Issues Presented

Whether the Appellate Court has power, on an appeal from an acquittal, to convict the accused of an offence (here, section 193 IPC) of which he was not charged and tried in the Sessions Court, in particular under clause (a) of sub‑section (1) of section 423 of the Criminal Procedure Code.
Whether clause (a) of section 423(1) should be construed to permit conviction only of the offence for which the accused was originally tried and acquitted, or whether it permits conviction of some other offence.
Whether the absence of a specific opinion of the assessors on the offence under section 193 IPC is a bar to convicting the accused of that offence (i.e., whether the requirements of section 309 CrPC as interpreted in Appaya Baslingappa prevent such conviction).
Whether the provisons of section 195(1)(b) CrPC prevent the Court from exercising jurisdiction to convict the accused under section 193 IPC when the alleged fabrication was intended to influence police investigation rather than to produce false evidence in court.
Whether exercising the power to convict on a charge not originally framed would prejudice the accused such that a re‑trial should be ordered instead of convicting on appeal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kauromal v. Emperor	Authority for the view that an Appellate Court under section 423 should have at least the power of the original Court which tried the case under section 237, provided no prejudice to the defence.	Adopted to support the proposition that an appellate court can convict of another offence (not only the offence acquitted) so long as no prejudice is caused to the accused.
Appaya Baslingappa Honnapur v. Emperor	Held that a Sessions Judge could not convict an accused of an offence under section 201 IPC when the accused was charged with abetment of murder; decision based mainly on section 309 CrPC requiring assessors' opinions to be taken and recorded.	Discussed as prior authority requiring assessors' opinion; the Court concluded that this decision can no longer be treated as good law in view of later Privy Council authority (Begu) and the principle that domestic courts cannot question Privy Council pronouncements (Mata Prasad).
Begu v. Emperor (Privy Council)	Upheld the action of a Sessions Judge in convicting an accused of an offence under section 201 IPC although the only charge was murder under section 302 IPC.	Relied upon to justify that conviction of a different offence (such as section 193 IPC) is permissible even where assessors' opinion on that specific charge was not separately taken; treated as binding on Indian courts and overriding Appaya Baslingappa.
Mata Prasad v. Nageshar Sahai	Held that Courts in India may not question principles enunciated by the Privy Council.	Invoked to support the conclusion that Appaya Baslingappa cannot be taken as good law in light of the Privy Council decision in Begu.
Queen-Empress v. Karigowda (Ranade, J.)	Observation that the High Court, in appeals against acquittals, should confine its exercise to the particular acquittal complained of by Government (a point of practice and caution in expanding the scope of appellate review).	Noted as authority for the view that the Court should hesitate before raising points not taken in the Government's appeal; the Court treated this as persuasive practice but not binding and not decisive in preventing conviction on another offence when justice requires it.
In re Govind Pandurang	Used to interpret the scope of section 195(1)(b) CrPC and to indicate that fabrication not intended for use in court does not fall within that provision.	Relied upon to conclude that section 195(1)(b) did not bar the Court from taking jurisdiction to convict under section 193 IPC since the alleged fabrication was intended to mislead the police in investigation, not primarily to furnish false evidence in court.

Court's Reasoning and Analysis

The Court proceeded in a sequence of legal questions and textual and precedent‑based analysis:

Interpretation of section 423(1) CrPC (clause (a)): The Court considered two constructions — (i) that "find him guilty" refers only to the offence of which the accused was convicted at trial (and whose acquittal is being reversed), and (ii) that the appellate power should be construed consistently with other provisions (notably clause (b) of section 423(1), section 237 and the practice under section 238) to permit conviction of an offence other than that for which the accused was originally tried, provided no prejudice is caused. The Court rejected the narrow construction as impractical and unsupported by practice and authority.
Reliance on related statutory provisions and practice: The Court contrasted clause (a) with clause (b) of section 423(1) and section 237 and observed the practice under section 238 where appellate courts have convicted of minor offences included within the main charge. That consistency supported the broader construction of clause (a).
Precedential analysis regarding assessors' opinions: The Court examined Appaya Baslingappa, which had barred conviction on a different charge without assessors' opinion, but then considered Begu (Privy Council), which had upheld conviction of a different offence notwithstanding that the initial charge was murder. Because of the Privy Council's authority and Mata Prasad's statement that Indian courts cannot question Privy Council principles, the Court held Appaya Baslingappa is no longer good law as to this point.
Practical objections and the binding nature of Privy Council decisions: The Court acknowledged that Begu may not have explicitly considered objections about assessors' opinions before the Privy Council, but the Court refused to treat that as an oversight that could invalidate Begu's applicability. The Court therefore accepted that the absence of a specific recorded opinion of the assessors on the section 193 matter did not constitute a bar to conviction.
Consideration of the High Court practice (Ranade's remark in Karigowda): The Court accepted that the High Court should be cautious about entertaining issues not specifically appealed by Government, but observed that such remarks are practice points and not binding rules that prevent the Court from exercising its powers where justice requires.
Applicability of section 195(1)(b) CrPC: The Court analysed whether that provision (which concerns prosecution for fabricating or using forged documents or perjury intended for use in court) prevented conviction. The Court concluded it did not apply because the fabrication here was intended to influence the police investigation, not primarily to furnish false evidence in court. The Court relied on In re Govind Pandurang in support.
Assessment of prejudice and fairness: The Court emphasised that if it thought the accused would be prejudiced by convicting on an uncharged offence on appeal, it would direct a fresh trial. However, on the facts, the accused had been confronted at trial with the evidence (the clothes on the river bank), had an opportunity to meet it (including making statements), and the Sessions Judge had treated that evidence as important and proved against him. Thus the Court found no prejudice that would necessitate a re-trial.
Application of facts to the elements of section 193 IPC: Applying the factual findings (that the accused placed wet clothes on the river bank to mislead the police, thereby seeking to create an erroneous opinion material to the police investigation into the death), the Court found all ingredients of fabrication of false evidence under the second clause of section 193 IPC present.
Conclusion on sentence: Having found the accused guilty of the second clause of section 193, the Court imposed a sentence of one year's rigorous imprisonment.

Holding and Implications

Holding: The Court convicted the accused of an offence under the second clause of section 193 of the Indian Penal Code and sentenced him to one year's rigorous imprisonment.

Direct consequences and immediate implications:

The accused was convicted by the High Court on appeal of an offence (fabricating false evidence, s.193 IPC) which was not the offence originally framed in the Sessions Court trial, and received a one‑year rigorous imprisonment sentence.
The Court held that an appellate court, when hearing an appeal from an acquittal under the statutory provisions considered, may in appropriate circumstances convict an accused of an offence other than that for which he was originally tried, provided no prejudice is caused to the defence.
The Court concluded that the absence of a specific, recorded opinion by the assessors on that particular offence was not an absolute bar to such conviction, having regard to Privy Council authority (Begu) and the binding force of that authority (Mata Prasad).
Section 195(1)(b) CrPC does not prevent the court from convicting under section 193 IPC where the fabrication was intended to influence a police investigation rather than to produce false evidence in court (per In re Govind Pandurang).

Broader precedential impact:

The Court treated the decision as an application of existing authorities (notably Begu and Kauromal) and practice to the facts rather than as laying down a novel principle. The opinion expressly relied on Privy Council authority and stated that earlier inconsistent domestic authority (Appaya Baslingappa) can no longer be regarded as good law. The Court did not state that it was establishing a new binding precedent beyond applying and reconciling existing authorities.

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Emperor v. Ismail Khadirsab

Fawcett, J.:—

We have heard the Government Pleader and Mr. Manerikar for the accused. The first question is whether we have power to convict the accused of an offence under section 193 of the Indian Penal Code, although he was not charged with that offence in the trial in the Sessions Court.

The first issue under this head is whether clause (a) of sub-section (1) of section 423 of the Criminal Procedure Code merely authorises an Appellate Court to find the accused guilty of the offence, with which he was charged and for which he was tried but of which he was acquitted, or whether it empowers an Appellate Court to convict an accused of some other offence. No doubt, as remarked in Boy's Code of Criminal Procedure, Vol. II, p. 563, the words “find him guilty” may be said to most naturally mean “find him guilty of the offence, the acquittal in regard to which is being reversed.” But the learned author goes on to say: “is there any reason why the same principles should not be applied here as apply to appeals by a convict?” Under clause (b) of sub-section (1) the Appellate Court can “alter the finding,” that is, alter the conviction under a certain section to one under another, and of course for that purpose it may avail itself of the provisions of section 237 of the Criminal Procedure Code. If we adopt the first of these two alternative constructions, the strict result will be that an Appellate Court, on an appeal from an acquittal by the Local Government, cannot even convict an accused of a minor offence covered by the offence, with which the accused was charged. I refer, of course, to a case falling under sub-section (1) of section 238 of the Criminal Procedure Code. It would involve that a person who had been charged with, but acquitted of, murder could not, on appeal by the Local Government, be convicted of the offence of voluntarily causing grievous hurt by a cutting instrument, or culpable homicide not amounting to murder. So far as I am aware, it has never been held that the Appellate Court in an appeal under section 417 is barred from convicting an accused of such a minor offence; it would obviously be embarrassing to the administration of justice, if the Court was forced to a conclusion of that kind. If, then, an appellate Court can convict an accused of an offence other than that in regard to which he has been acquitted in a case falling under section 238, I can see no logical reason why he cannot also be convicted of another offence, in a case falling under the provisions of section 237. both sections are on the same footing, and I do not think that the first construction I have mentioned is a correct one to apply to this clause (a). Apparently, there is no specific authority on this point; but certainly so far as regards the applicability of section 238, I think the practice has been all along in favour of the second construction. I agree with the view taken in Kauromal v. Emperor that (p. 1059) “it must be presumed that the Appellate Court under section 423 would at least have the power of the original Court which tried the case under section 237 provided no prejudice was given to the defence.”

The next point is whether this Court can convict the accused of the alleged offence under section 193 of the Indian Penal Code, in view of the fact that the opinion of the assessors has not been taken as to it. In Appaya Baslingappa Honnapur… v. Emperor(2) it was held that the Sessions Judge could not convict an accused, who was charged with abetment of murder, of an offence under section 201 of the Indian Penal Code, viz., causing the disappearance of evidence of the murder; and this ruling was mainly based upon the provisions of section 309 of the Criminal Procedure Code which require the Sessions Court to take the opinion of the assessors and record such opinion. It is said by Marten, J. (p. 1320):—

“In the view I take, it is imperative for the Judge to take the opinion of the assessors on, the charge it is proposed to convict the accused on. It is not, I think, open to the Judge to put merely the charge of murder to the assessors, and when they have given their opinion on that charge and that charge only, then on his own motion and without asking any further opinion of the assessors, to find the accused guilty of something quite different.”

Those remarks are, obviously, entitled to great weight; but they were made in 1923, and since then we have the decision of the Privy Council in Begu v. Emperor, where their Lordships upheld the action of a Sessions Judge in convicting the accused of an offence under section 201 of the Indian Penal Code, although the only charge against them was one of murder under section 302 of the Indian Penal Code. No doubt, the objection about the opinion of the assessors not being taken may not have been urged before their Lordships, and may not have been present to their Lordships' minds, when they delivered their judgment. But, on the other hand, I do not think that this Court is entitled to say that a point of that importance was overlooked, especially as an objection was raised before their Lordships in regard to the opinion of the assessors not being properly taken and recorded under section 309 of the Criminal Procedure Code. In Mata Prasad v. Nageshar Sahai, their Lordships laid down that it is not open to the Courts in India to question any principle enunciated by the Privy Council. Therefore, in my opinion, the decision in Emperor v. Appaya(3) can no longer be taken as good law.

Then, Mr. Manerikar has quite rightly drawn our attention to the remarks of Mr. Justice Ranade in Queen-Empress v. Karigowda,(4) where he says (p. 68):—

“The High Court, exercising its jurisdiction in the matter of appeals against acquittals, should confine its exercise to the particular acquittal complained of by Government.”

In that case, there had been another acquittal, i.e, on a charge of an offence under section 211 of the Indian Penal Code, and in the arguments on appeal it was sought to question the propriety of that acquittal, but Mr. Justice Ranade held that, as Government had only appealed from the other acquittal under section 500 of the Indian Penal Code, this Court ought not to go into the acquittal under section 211 of the Indian Penal Code. That, no doubt, is an authority for the view that this Court should hesitate before raising a point that has not actually been taken in the appeal by Government. But, as has often been pointed out, no Bench of this Court has power to bind all other Benches in future proceedings as to the practice to be adopted in all cases that may come before them. This is purely a point of practice, and, therefore, I do not consider that this particular remark suffices to prevent us considering whether in the interests of justice we should exercise our power of convicting the accused of another offence, if we have that power.

A further point arises whether the provisions of section 195, sub-section (1), clause (b), prevent us from exercising jurisdiction in regard to the alleged offence under section 193 of the Indian Penal Code. The answer, I think, is clearly in the negative, because the alleged fabrication of evidence in this particular case was not with the intention of that false evidence being used in a Court of law, but with the intention of its influencing the Police in the investigation into the circumstances under which the accused's wife had met her death; and the mere fact that the question might possibly arise in a Court of law in some future proceedings would not bring the case within the scope of this clause (b). In support of the latter statement I may refer to the ruling of this Court in In re Govind Pandurang.

I think, therefore, that there is no impediment to our following what has been held to be a proper procedure in the Privy Council case of Begu v. Emperor. The only difference is that in Begu's case there was a conviction by the Sessions Judge, which was upheld by the High Court on appeal. But in the present case the Sessions Judge did, in fact, expressly hold that the evidence of the Kazi and Sharif Hassan showed that the accused placed wet clothes on the river bank in order to support the theory that his wife had been washing clothes there, and the evidence about it had been one of the points that was discussed as is shown by the Sessions Judge's notes of the arguments for the prosecution and for the defence. In fact, the prosecution relied upon this particular evidence as a ground for saying that the accused was shown to have committed the murder of his wife, and it was an important question in the trial. The assessors, no doubt, did not refer to this particular piece of evidence, but it was before them; and, as I have already pointed out, the fact that their opinions in regard to it were not taken is not an objection that can be considered a bar to a conviction by this Court.

If I thought for one moment that the accused would be prejudiced, I certainly would not exercise the power of ourselves convicting him, but direct a re-trial in regard to this offence. But, in my opinion, there can be no possible question of prejudice. The accused was asked about the evidence of these two witnesses, and he made a statement as to the clothes being seen by him on the river bank, and impeaching the testimony of the Kazi and Sharif Hassan against him. It would, in my opinion, be an unwarrantable waste of time if a fresh trial was ordered, in view of the fact that the accused at the trial knew of the accusation against him and had full opportunity of meeting it, and in view of the fact that the Sessions Judge held it was proved against him. Had his attention been called to Begu's case and the applicability of section 193, Indian Penal Code, he might have convicted the accused under that section.

Coming to the merits, in my opinion, the evidence clearly proves that the accused himself placed the clothes where they were afterwards found, in order to mislead the Police, to whom he was about to report the fact of his wife being missing, into the opinion that she had been washing clothes at the river bank. The Police had power to investigate the circumstances of the woman's death and the possibility of some offence having been committed in regard to her death, especially in view of the wound on her throat, under sections 154 and 174 of the Criminal Procedure Code; and it is obvious that the accused's intention was that the circumstance of the clothes being upon the bank should cause the officer in charge of the Police investigation to form the opinion upon that circumstance that she had been washing clothes there. That would be an erroneous opinion on the facts that the Sessions Judge and we have found; and it would be an opinion touching a point material to the result of such proceedings, because it was distinctly material to know whether the deceased had been present on the bank of the river washing clothes and so might have fallen into the river, in deciding whether her death was accidental or due to violence. The ingredients necessary for an offence of fabricating false evidence are all here, and the case falls under the second clause of section 193 of the Indian Penal Code. I would convict, therefore, the accused of an offence under that part of section 193 of the Indian Penal Code and sentence him to one year's rigorous imprisonment.

Mirza, J.:—I agree.

Order accordingly.

R.R

Emperor v. Ismail Khadirsab

Structured Summary of Opinion (Fawcett, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Emperor v. Ismail Khadirsab

Comments