iminal Appeals Nos
60 and 63 of 1965
Appeals from the judgment and order dated November 20 1963 of the Gujarat High Court in Criminal Appeals Nos 957 and 796 of 1963 respectively
Urmila Kapur and section P Nayar for the appellant
The respondent did not appear
The Judgment of the Court was delivered by Dua J
These two criminal appeals Nos 60 and 63 of 1965 with certificate raise a common question and are therefore being disposed of by a common judgment
The Gujarat High Court also recorded the main judgment only in Criminal Appeal No 60 of 1965
The question which arises for determination is whether several accused persons jointly tried have been acquitted by the trial Court the state can  prefer one appeal against the acquittal of all of them
The High court held such a joint appeal not to be maintainable under Cr
PC and so holding rejected the appeal by the State without going into the merits
The Division Bench of the High Court speaking through Raju J recorded a very lengthily order though the reasoning in support of the non maintainability of the joint appeal is confined to a couple of pages only
The High Court in its order referred to ss 258 410 417 419 and 423 of the Code and came to the conclusion that the scheme of Chapter XXXI of the Code as disclosed by these sections and particularly by section 419 is against the maintainability of a joint appeal by the State against an order acquitting several accused persons tried jointly
Section 419 was construed by the High Court to contain a bar against a joint appeal
The major portion of the impugned order dealt with the question of binding character of the Full Bench decision of that High Court since reported as Lalu Jela vs State of Gujarat1 on the Division Bench hearing the present appeals
After a lengthy discussion the Division Bench came to the conclusion that the Full Bench decision holding a joint appeal to be maintainable in law was not binding on it
On the view that we propose to take on the question of main tainability of a joint appeal against a common order acquitting 1 AIR 1962 Guj
877 several accused persons tried jointly we do not consider it necessary to embark on a lengthy discussion on the question of binding charter of decisions of Full Benches and of Division Benches on future Benches of co ordinate jurisdiction of the same High Court
We may only make a passing reference to the decisions of this Court cited at the bar in support of such binding character
In Mahadeolal Ranodia vs The Administrator General of West Bengal1 this Court observed as follows  We have noticed with some regret that when the earlier decision of two judges of the same High Court in Beorajan s an s case was cited before the learned judges who heard the present appeal they took on themselves to say that the previous decision was wrong instead of following the usual procedure in case of difference of opinion with an earlier decision of referring the question to a lar ger Bench
Judicial decorum no less than legal propriety forms the basis of judicial procedure
If one thing is more necessary in law than any other thing it is the quality of certainty
That quality would totally disappear if judges of co ordinate jurisdiction in a High Court start overruling one another s decision
If one Division Bench of a High Court is unable to distinguish a previous decision of another Division bench and holding the view that the earlier decision is wrong itself gives effect to that view the result would be utter confusion
 Other decisions cited containing similar observations are  jai Kaur and others vs Sher Singh etc
2  and Atma Ram vs State of Punjab and others3
We are aware of a still more recent decision of this Court in Jaisri Sahu vs Rai Dewan 4 in which re Ference is made to a Privy Council decision in Budha Singh vs Laltu Singh5
The question of competency of a joint appeal by several per sons convicted by one order at a joint trial was referred for authoritative decision to a Full Bench of the Gujarat High Court in Lalu Jela s case6
The argument before the Full Bench was that r 6 in Chapter XXVI of the Bombay High Court Appellate Side Rules which are applicable to the proceedings in Gujarat High Court was inconsistent with Chapter XXXI of the Code of Criminal Procedure with the result that a joint appeal to the High Court by several persons convicted at a joint trial was not maintainable
The Full Bench on an exhaustive discussion held such 1 19603SCR 78 2 3 4 5 ILR  37 All 604 PC
6 AIR 1962 Guj
125 878 an appeal to be competent and did not consider r 6 to be inconsistent with Chapter XXXI of the Code
The decision of this Court in Rabari Ghela Jadav
State of Bombay1 was explained and distinguished
If we agree with the principle accepted in the Full Bench decision then the present appeals would on the reasoning of that decision seem prima facie to possess merit and in the absence of some other cogent reason to the contrary the appeals would have to succeed
Chapter XXVI of the Bombay High Court Appellate Side Rules 1960 deals with criminal business and r 6 is in the following words Joint appeal or application by persons affected by the same judgment
All persons aggrievedby a judgment or an order passed in a criminal case may join in one appeal or application for revision and one copy of the judgment or order complained of shall be sufficient This rule of course does not in terms cover the case of an appeal by the State against several accused persons jointly tried and acquitted by the trial Court by a common order but if an appeal by persons jointly tried and convicted is competent then on principle it is difficult to negative the maintainability of one appeal by the State against a common order acquitting several persons tried jointly
This rule deals with a matter of procedure and not of Substantive rights and seems to be based on sound commonsense
Procedure has been described to be a hand maid and not a mistress of law intended to subserve and facilitate the cause of justice and not to govern or obstruct it
Like all rules of procedure this rule demands a construction which would promote this cause
So construed a joint appeal in compliance of this rule must be sustained
The power to frame this rule is specifically conferred on the High Court by section 5542c Cr
PC and r 6 does not seem to us to be inconsistent with any provisions of the said Code
Holding this rule to be valid in agreement with the decision of the Full Bench the competency of a joint appeal by several accused persons convicted at one trial must be upheld
On the same reasoning a joint appeal by the State against several accuses
persons acquitted at a joint trial has also to be held not to be contrary to any provision of the Code and therefore not legally prohibited
Section 419 of the Code on which the High Court seems to have relied in support of the non maintainability of a joint appeal by the State lays down inter alia that every appeal shall be made in the form of a petition in writing presented by the appellant 1 AIR 1960 SC 748
879 or his pleader and every such petition shall unless the court otherwise directs be accompanied by a copy of the judgment or order appealed against
This section does not seem to us to prohibit a joint appeal by the State against more than one accused persons
The contrary view taken by the High Court on the construction of this section is clearly unacceptable
Section 417 which provides for an appeal in a case of acquittal empowers the State Government to direct the public prosecutor in any case to present an appeal from an order of acquittal
This section also does not suggest any bar or prohibition against presentation of a joint appeal against several accused persons acquitted in a case
On the other hand it provides for an appeal in a case and not against an accused person who has been acquitted
The plain reading of this sections therefore
 seems to be wide enough to permit a joint appeal
Sections 258 410 and 423 of the Code also do not seem to indicate any bar as is suggested by the order of the High Court
This Court in Rabari Ghela Jadav s case1 on the basis of which the judgment of the High Court mainly proceeds merely lays down that the Appellate Court hearing an appeal cannot admit it only on a question of sentence and that such a restricted order of admission being invalid the appellant would be entitled to insist that his appeal should be heard on the merits
This decision in Our opinion does not militate against the maintainability of a joint appeal
The Full Bench decision of the Gujarat High Court rightly distinguished and explained this decision
As observed earlier once we accept the Full Bench to lay down the correct rule of law then there cannot be much difficult in upholding the maintainability of a joint appeal by the State against several accused persons acquitted at a joint trial
There being no legal bar at least we are aware of none either in the Cr
PC or elsewhere such an appeal cannot be held to suffer from any serious legal infirmity
And then the matter being one of mere form it calls for a liberal approach requiring the appeal to be heard on the merits
To hold it to be unmaintainable on this ground would defeat the larger cause of justice
Unfortunately we did not have the advantage of arguments on behalf of the respondents because they were unrepresented but on considering the scheme of the relevant provisions of the Code of Criminal Procedure we are of the view that the High Court was wrong in holding the joint appeal not to be maintainable and in summarily rejecting the same
We accordingly allow the appeal set aside the order of the High court and remit the case back to it for decision of the appeal on the merits
GC Appeal allowed
1 AIR 1960 SC 748


Summary:
The respondents were tried jointly and acquitted by a common judgment
State of Gujarat filed a Joint appeal against their acquittal in
the High Court
Rule 6 of the Bombay High Court Appellate Side Rules 1960 which were applicable to the proceedings in the Gujarat High Court provided for joint appeals by persons aggrieved by a common judgment or order
There was however no rule specifically providing for similar joint appeals by the State
A Division Bench of the High Court dismissed the joint appeal by the State against the respondents on the ground that such an appeal was not maintainable
The Division Bench held that the decision by a Full Beach of the High Court in Lalu lela s case in which a contrary view had been taken was not binding on the Division Bench
In appeal to this Court against the judgment of the Division Bench
HELD  i The Division Bench was in error in not treating as binding the earlier decision of a Full Bench of the same court on the same question
1877 A F Mahadeolal Kanodia vs The Administrator General of West Bengal   Jai Kaur  Ors
vs Sher Singh etc  Atma Ram vs State of Punjab  Ors  Jaisri Sahu vs Rai Dewan 19621 2 SCR 559 and Budha Singh vs Laltu Singh ILR 37 All 604 PC applied
ii Rule 6 of the Bombay High Court Appellate Side Rules does not in terms cover the case of an appeal by the State against several accused persons jointly tried and acquitted by the trial court by a common order but if an appeal by persons jointly tried and convicted is competent then on principle it is difficult to negative the maintainability of one appeal by the State against a common order acquitting several persons tried jointly
Like all rules of procedure this rule demands a construction which would  promote the cause of justice and not obstruct it
878 D F A joint appeal by the State against several accused persons acquitted at a joint trial is not contrary to any provision of the Code of Criminal Procedure and is therefore not legally prohibited
Sections 258 410 417 419 or 423 of the Code do not indicate any bar as was suggested by the order of the High Court
Indeed the plain reading of section 417 which proides for an appeal in a case and not against an accused person seems to be wide enough to permit A joint appeal
The matter being one of mere form it calls for a liberal approach requiting the appeal to be beard on its merits
The order of the High Court must accordingly be set aside
878 G H 879 C F 876 Rabari Ghela jadav V State of Bombay AIR 1960 SC 748 explained
Lalu Jela
vs State of Gujarat AIR 1962 Guj 125 approved