Criminal Appeal No 45 of 1982
597 From the Judgment and Order dated the 9th July 1981 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No 333 DB of 1981 AND SLP Crl No 2948 of 1982
RL Kohli and R C Kohli for the Appellants
TU Mehta and AG Ratnaparkhi for Respondent No 1
NC Talukdar and RN Poddar for Respondent No 3
NC Talukdar and RN Poddar for the Petitioner in SLP Crl No 249881
D D Sharma for the State
The Judgment of the Court was delivered by MISRA J
The appeal as well as the special leave petition are directed against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 9th July 1981
Criminal appeal has been filed by the complainant while the special leave petition has been filed by the State of Himachal Pradesh
Vinay Kumar and his mother Chhano Devi were convicted for the murder of Asha the wife of Vinay Kumar by burning her alive and sentenced to life imprisonment by the learned Sessions Judge Gurdaspur
On appeal by the accused the High Court acquitted them by the impugned judgment
The prosecution case set up at the trial was that the deceased Asha was married with Vinay Kumar in July 1972
The marriage was an arranged marriage
It did not prove to be a success the apparent cause for the failure of marriage was that Asha was only a matriculate and not cultured enough to move about in the society with the husband
To make up this deficiency the deceased again resumed her studies and started attending college at Nagrota Bhagwan
While prosecuting her studies she was rebuked and abused and sometimes even thrashed whenever she visited the house of her in laws
She however kept on suffering in the vain hope that in due course of time things might improve
There was however no improvement and she was fed up with the maltreatment and 598 cruelty meted out to her in the in laws house
She left the matrimonial home and started living with her parents sometime in the year 1975 or early 1976
In 1977 Vinay Kumar filed a petition in the court of the District Judge Kangra at Dharamshala under section 13 of the Hindu Marriage Act for the dissolution of his marriage with the deceased on various grounds including one of desertion
The District Judge in the first instance tried for reconciliation between the spouse and as an interim arrangement Asha returned to her in laws house in June 1978 on trial basis while divorce petition was kept pending and adjourned to July 29 1978
As the parties did not appear in the Court on the date fixed it was presumed that they were living happily and the proceedings were therefore consigned to the record
On 5th of August 1978 at about 11 am
Kanwal Nain PW 4 Bil Bhandur PW 14 employee of the Post office which was just in front of the house of the accused at a distance of 1012 feet and a number of other persons saw smoke coming out of the window of the house of the accused
When Bil Bhandur and others went to the house they found the outer door locked
There was no other means of ingress to the house
After a short while one Raj brought the key from Chhano Devi accused with which the lock was opened and entry gained into the house
Asha was found burning and after extinguishing the fire she was removed to the local hospital
Dr O P Dutta attended her and sent an intimation of the incident to the Incharge local Police Post
He recorded the statement of Asha on the out patient register 13x
Meanwhile Kesar Singh Assistant Sub Inspector arrived there an d after getting a certificate from Dr Dutta he also recorded her statement exhibit PU
From Civil Hospital Kangra Asha was removed in a truck to a Civil Hospital in Dharamshala HP where she breathed her last
The police suspected no foul play and did not register any case
The father of the deceased Hanumant Dass however made a report on 7th August 1978 and a case was registered on that basis
The accused were sent up for trial
When the case was pending in the Court of Sessions Judge Dharamshala in Himachal Pradesh the complainant moved an application to the 599 Supreme Court for transfer of the case from Himachal Pradesh to some other province
The case was transferred to a Court of competent jurisdiction at Gurdaspur in Punjab
The Sessions Judge Gurdaspur convicted both the accused under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment
This conviction was based only on the circumstantial evidence
Accused went up in appeal to the High Court
The High Court in its turn set aside the order of conviction and acquitted the accused of the charge
The complainant has filed the present appeal
Shri Kohli appearing for the complainant has strenuously contended that the appeal before the High Court has been allowed in the absence of the State of Himachal Pradesh and without any notice to that State and as such the impugned judgment of the High Court is a nullity and should be set aside on that ground alone
The accused had impleaded only the State of Punjab as a party and the High Court has issued notice to the Advocate General of Punjab
As a second limb to this argument it has been contended by Shri Kohli that the appeal was filed in the High Court on 15th June 1981 and while considering the application for bail on 22nd of June 1981 posted the appeal for hearing on 6th of July 1981 after service of notice on the Advocate General of Punjab and the appeal was decided on 9th July 1981 without even summoning the record
Thus the High Court was in a hot haste to dispose of the appeal even without reasonable opportunity being afforded to the counsel for the State and without impleading the appropriate State as a party to the appeal and without notice to the counsel for the State of Himachal Pradesh
We may first deal with the criticism of the learned counsel about the undue haste in the disposal of the appeal by the High Court
It appears that Shri MR Mahajan counsel for the appellants while moving the application for bail made a statement before the High Court and it is on his statement that the case was posted for hearing at the earliest possible
This will be apparent from the order dated 2261981 passed by the High Court while disposing of the application for bail
The order insofar as it is material for consideration of the point reads 
Mr Mahajan Advocate states that on the findings of fact recorded by the learned trial Judge the conviction of the appellants cannot be sustained
Notice for 6781
600 to the Advocate General Punjab
Copy of the grounds of appeal and the judgment rendered by the learned trial Judge be delivered in the office of the A C Punjab within two days The case is likely to be disposed of on that date   Therefore the charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible appears to be uncalled for
This leads us to the main contention raised by Shri Kohli that the transfer of the case from Dharamshala lying within the territorial jurisdiction of the High Court of Himachal Pradesh to Gurdaspur Lying within the jurisdiction of the Punjab and Haryana High Court does not change the parties and the parties remain the same even after the transfer of the case from Dharamshala to Gurdaspur
In this view of the legal position the State of Himachal Pradesh where the offence was committed was a necessary party and should have been impleaded in appeal
In the absence of the State of Himachal Pradesh as a party and in the absence of notice to the counsel for the State of Himachal Pradesh the High Court was not justified in disposing of the appeal and its judgment is only a nullity
This contention is based on section 385 of the Code of Criminal Procedure
Insofar as it is material for the purpose of the case it reads  3851 If the Appellate Court does not dismiss the appeal summarily it shall cause notice of the time and place at which such appeal will be heard to be given i to the appellant or his pleader ii to such officer as the State Government may appoint in this behalf iii if the appeal is from a judgment of conviction in case instituted upon complaint to the complainant iv if the appeal is under section 377 or section 378 to the accused and shall also furnish such officer complainant and accused with a copy of the grounds of appeal
601 2 The Appellate Court shall then send for the record of the case if such record is not already available in that Court and hear the parties Provided that if the appeal is only as to the extent or the legality of the sentence the Court may dispose of the appeal without sending for the record
In the appeal before the High Court State of Punjab was made a party and notice 
Of the appeal was also given to the Advocate General of Punjab
According to Shri Kohli this does not satisfy the requirement of law
It would be appropriate at this stage to refer to other relevant provisions of the Code Section 225 provides that In every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor
 Section 24 defines public prosecutor Public Prosecutor means any person appointed under section 24 and includes any person acting under the direction of a public prosecutor
 Section 24 deals with Public Prosecutors in the High Court 24
Public Prosecutors I For every High Court the Central Government or the State Government shall after consultation with the High Court appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such Court any prosecution appeal or other proceeding on behalf of the Central Government or State Government as the case may be      
Section 378 talks of an appeal in case of acquittal
2 If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the  or by any other agency empowered to make investigation into an offence under any Central Act other than this Code the Central Government may also direct the Public Prosecutor to present an appeal subject to the provisions of sub sec3 to the High Court from the order of acquittal
Section 432 authorises the appropriate Government to suspend or remit sentences 4321 When any person has been sentenced to punishment for an offence the appropriate Government may at any time without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced
2 Whenever an application is made to the appropriate Government for the suspension for remission of a sentence the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused together with his reasons for such opinion 3 
  4  s 6 The provisions of the above sub sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property 603 7 In this section and in section 433 the expression appropriate Government means a in cases where the sentence is for an offence against or the order referred to in sub section 6 is passed under any law relating to a matter to which the executive power of the Union extends the Central Government b in other cases the Government of the State within which the offender is sentenced or the said order is passed
From the various provisions extracted above it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central Government or State Government in the High Court
Shri Kohli however contends that occurrence in the instant case took place within the territorial limits of Himachal Pradesh
That State therefore will continue to be a necessary party in the appeal irrespective of the fact that the appeal was filed in the Punjab High Court
Section 4327 extracted above defines appropriate Government
Appropriate Government means a in cases where the sentence is for an offence against or the order referred to in subsection 6 is passed under any law relating to a matter to which the executive power of the Union extends the Central Government b in other cases the Government of the State within which the offender is sentenced or the said order is passed
According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed
A somewhat similar question came up for consideration in the State of Madhya Pradesh vs Ratan Singh  Ors1 where the respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh
At his request he was transferred o a Jail in the State H 604 of Punjab to which State he belonged
He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment
The application was sent to the Government of Madhya Pradesh which rejected it
In a Writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter
This Court in appeal observed a perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of sec
401 of the Code of Criminal Procedure
Thus since the prisoner in The instant case was tried convicted and sentenced in the State of Madhya Pradesh the State of Madhya Pradesh would be the appropriate Government
to exercise the discretion for remission of the sentence under sec
4011 of the Code of Criminal Procedure 
 That was a case based on section 401 of the old Criminal Procedure Code but the Code of Criminal Procedure 1973 has put the matter completely beyond any controversy and reiterated the provisions of section 4023 in sub section 7 of section 432 Lastly it was contended that the appeal was disposed of by the High Court even without summoning the record
There is no warrant for this assumption
No specific allegation has been made in the special leave petition that the record was not summoned
We have perused the Judgment of the High Court and the tenor of the judgment indicates that the record must have been there before the court
There is copious reference to the materials on the record which could be possible only when the record was there before the court
the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned for which there is no basis that would not be fatal Proviso to sub section 2 of section 385 itself provides  the court may dispose of the appeal without sending for the record
 in a certain situation
The rigour of subsection 2 of sec
385 which provides that the Appellate Court shall then send for the record of the case  has been taken away by the proviso in a certain situation
If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge the non summoning of the record if it was at all so 605 would not to our mind be fatal
The complainant was present with his counsel the State Advocate General was also present
If there had been any grievance about the record they would have raised an objection
Their non objection on this point is also an indicator that the record was there or in any case the summoning of the record was not thought to be necessary by the parties
B Assuming for the sake of argument that there were certain irregularities it the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has been failure of justice as will be evident from section 465 of the Criminal Procedure Code which reads 465
no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal confirmation or revision on account of any error omission or irregularity in the complaint summons warrant proclamation order judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code or any error or irregularity in any sanction for the prosecution unless in the opinion of that Court a failure of justice has in fact been occasioned thereby
2 In determining whether any error omission or irregularity in any proceeding under this Code or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings
 We have perused the judgment of the High Court which was placed before us in full
It shows that each and every aspect of the matter has been thoroughly discussed and the High Court has also referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions
on merits we fully agree with the appraisal of the evidence made by the High Court
It is not necessary to repeat the same 606 over again
There is no eye witness
The fate of the case hinges upon the circumstantial evidence
The High Court has dealt with the two dying declarations one recorded by the Doctor and the other by the Assistant Sub Inspector
The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied
But even that declaration does not implicate the accused
The reason given by the High Court for acquittal in our opinion is cogent and plausible
For the foregoing discussion the criminal appeal and the special leave petition must fail and they are accordingly dismissed


Summary:
Vinay Kumar the husband of the deceased Asha and his mother Chhano Devi were charged convicted for the offence of burning alive the deceased and sentenced to life imprisonment on a complaint by Hanumant Dass the father of the deceased and the appellant in Criminal Appeal 45 of 1982 by the Sessions Judge Gurdaspur Punjab
The offence is alleged to have been committed within the territorial limits of the State of Himachal Pradesh but on an application of the complainant the case was transferred by an order of the Supreme Court inasmuch as the accused were the brother in law and mother in law of a Judge of the High Court of Himachal Pradesh
In appeal by tho accused the High Court of Punjab issued on 22 6 1981 notice for 6 7 1981 to the Advocate General of Punjab only and on that date heard the appeal and acquitted both the accused
Hence the appeal by the complainant and the special leave by the State of Himachal Pradesh
Dismissing the appeal and the Special Leave Petition the Court  HELD 1
The charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible is incorrect in view of the order dated 22 6 1981 passed by the High Court of Punjab
600 B 21
Section 385 of the Code of Criminal Procedure is a mandatory provision and the requirement of the section must be satisfied
In the appeal before tho High Court State of Punjab was made a party and notice of the appeal was also given to the Advocate General of Punjab
From sections 24 24 225 378 and 432 it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central 596 Government or State Government in the High Court
If notice has been given to the Public Prosecutor namely the Advocate General of Punjab the requirement of law has been fulfilled
601 B C 603 C D 22
Section 432 of the Criminal Procedure Code defines appropriate Government as meaning a in cases where the sentence is for an offence against or the order referred to in sub section 6 is passed under any law relating to a matter to which the executive power of the Union extends the Central Government b in other cases the Government of the State within which the offender is sentenced or the said order is passed
According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed
603 C D State of Madhya Pradesh vs Ratan Sing  Ors 1976 Supp
SCR 552 applied
To contend that the High Court disposed of the appeal even without summoning the record is incorrect
No specific allegation has been made in the Special Leave Petition that the record was not summoned
The tenor of the judgment of the High Court indicates that the record must have been there before the High Court
There is copious reference to the materials on the record which could be possible only when the record was there before the court
Besides the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned that would not be fatal
Further proviso to sub section 2 of section 385 itself provides  the court may dispose of the appeal without sending for the record in a certain situation
The rigour of sub section 2 of section 385 which provides that the Appellate Court shall then send for the record of the case  has been taken away by the proviso in a certain situation
If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge the non summoning of the record if it was at all so would not be fatal
The complainant was present with his counsel the State Advocate General was also present
If there had been any grievance about the record they would have raised an objection
Their non objection on this point is also an indicator that the record was there or in any case the summoning of the record was not thought to be necessary by the parties
604 E H 605 A B 4
On merits also there is no case for the appellants since each and every aspect of the matter has been thoroughly discussed by the High Court which has referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions
There is no eye witness
The fate of the case hinges upon the circumstantial evidence
The High Court has dealt with the two dying declarations one recorded by the Doctor and the other by the Assistant Sub Inspector
The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied
But even that declaration does not implicate the accused
605 G H 606 A B