Judgement Appeal (No. 6i of 1945) in forma pauperis by special leave from a judgment of the High Court (January 8, 1945) upholding the convictions of the appellant on charges of murder, attempted murder, and robbery resulting in grievous hurt, and I confirming the sentence of death passed on him by the Sessions Judge of Ambala (May 12, 1944). The following introductory statement is taken from the judgment of the Judicial Committee. The Appellant, on May 12, 1944, was convicted on a charge of murder and sentenced to death after a trial before the Sessions Judge of Ambala sitting with a jury of seven. The jury returned a verdict of guilty by a majority of four to three. There were other minor charges against the appellant on which he was also convicted, but it is unnecessary to refer to those. Sentence of death having been passed on the appellant the " proceedings," as required by s. 374 of the Code of Criminal Procedure, were submitted for confirmation to the High Court of Judicature at Lahore. The appellant also appealed to the High Court against his conviction. The case came before a Divisional Bench of the High Court consisting of Trevor Harries C.J. and Teja Singh J. After reviewing the evidence and the summing-up of the Sessions Judge to the jury they came to the conclusion that certain material evidence had been improperly admitted at the trial and that the judge had seriously misdirected the jury. The court had then to consider what were its powers in that situation and what course it should adopt. Counsel for the appellant maintained that on both grounds the verdict of the jury should be set aside and a new trial ordered. Counsel for the Crown maintained that notwithstanding the defects in the proceedings the court was entitled to examine for itself the whole proceedings, including the evidence, and should not set aside the verdict of the jury and order a new trial unless it was satisfied on a consideration of the whole case that the verdict was wrong and that there had been a failure of justice. In view of the importance of the questions raised as to the powers of the High Court in such circumstances and as to the proper course to be pursued by it, and also in view of the divergent opinions expressed on this topic in a number of previous reported cases, the learned judges of the Divisional Bench decided to refer to a Full Bench the two following questions —" (i.) When in a murder reference and appeal it is " found that inadmissible evidence has been admitted in a jury " trial, can this court in view of s. 167, Indian Evidence Act, " and/or s. 537, Criminal Procedure Code, exclude such evidence " and maintain a conviction if the evidence remaining is suffi- " cient to warrant it or must a re-trial be ordered ? (ii.) When " in a murder reference and appeal it is found that there have " been serious instances of misdirection and non-direction of a " jury, should this court in view of s. 537 Criminal Procedure " Code proceed itself to consider the evidence and maintain a " conviction if the evidence is sufficient or must a re-trial be " ordered ? " Those questions were considered by a Full Bench of five judges (Trevor Harries C.J., Beckett, Rahman, Mehr Chand Mahajan and Teja Singh JJ.), which on December 11, 1944, delivered judgment, answering the questions as follows (i.) " Where inadmissible evidence has been admitted in a " murder reference and appeal under s. 449, Criminal Procedure " Code, the High Court may, after excluding such evidence, " maintain a conviction, provided the admissible evidence " remaining clearly establishes the guilt of the accused." (ii.) " The court in an appeal by an accused person under " s. 449, Criminal Procedure Code, can, where there has been a serious misdirection or non-direction, consider the evidence " and maintain the conviction if the evidence clearly establishes " the guilt of the accused." The case was remitted with those answers to the Divisional Bench which, on January 8, 1945, dismissed the appellants appeal and confirmed the sentence of death passed on him. By Order dated August 3, 1945, special leave to appeal in forma pauperis to His Majesty in Council was granted to the appellant on the advice of the Board, but " restricted to the " two questions referred to the Full Bench by the Divisional " Bench." By the Indian Evidence Act, 1872, s. 167 " the improper " admission or rejection of evidence shall not be ground of itself " for a new trial or reversal of any decision in any case, if it shall " appear to the court before which such objection is raised that, " independently of the evidence objected to and admitted, " there was sufficient evidence to justify the decision, or that, if " the rejected evidence had been received, it ought not to " have varied the decision.” By sub-s. 2 of s. 423 of the Code of Criminal Procedure " Nothing herein contained shall authorize the court to alter or " reverse the verdict of a jury, unless it is of opinion that such " verdict is erroneous owing to a misdirection by the judge, or " to a misunderstanding on the part of the jury of the law " as laid down by him." By s. 537 of the Code of Criminal Procedure " Subject to the " provisions hereinbefore contained, no finding, sentence or " order passed by a court of competent jurisdiction shall be " reversed or altered under Ch. XXVII. or on appeal or revision "on account— .... (d) of any misdirection in any charge to " a jury unless such .... misdirection has in fact occasioned " a failure of justice." 1946. Jan. 15, 16, 17. Quass and M. P. Solomon for the appellant. It is no part of the appellants case that if there be any misreception of evidence, however unimportant, or any misdirection or non-direction, however trivial, a new trial should be ordered, but where, as here, the matters complained of were serious, then it is submitted that he is entitled to a new trial and that it is not for an appellate court to consider the case for itself. If the answers of the High Court are correct, it means that if there has been a serious wrongful admission of evidence or a serious misdirection, so that the appellant has not had a fair trial, he is deprived of a trial by jury to which by statute he is entitled. A verdict is " erroneous " under s. 423, sub-s. 2, of the Criminal Procedure Code if there has been a serious misdirection ; there have been conflicting views on the meaning of " erroneous." There has been a " failure of justice " under s. 537 of the Code if the effect of the misdirection is an erroneous verdict—if a guilty person has been acquitted or an innocent one found guilty. There is a strong body of opinion in India that before s. 167 of the Evidence Act can be founded on the strength of the evidence which has been wrongly admitted or rejected must be looked at. Dealing first with the question of misdirection, the first, the oldest and perhaps the strongest case against the appellant is Elahee Buksh (( 1866) 5 Suth. W. R. 80, 87.), in which it was held, as indicated by the High Court in the present case, that the power of setting aside convictions and ordering new trials for any error or defect in the summing-up would be exercised by the High Court only when the court was satisfied that the accused erson had been prejudiced by the error or defect, or that a failure of justice had been occasioned thereby, The importance of the Elahee Buksh case is that exactly the same position arises with a jury as with judge and assessors ; they took the view in that case that there was no need to send it back. Makin v. Attorney-General for New South Wales ([ 1894] A. C 57.) fell to be decided under s. 423 of the Criminal Law (Amendment) Act, 1883, of New South Wales, which provided that " no conviction or judgment shall be reversed, arrested or " avoided .... Makin v. Attorney-General for New South Wales ([ 1894] A. C 57.) fell to be decided under s. 423 of the Criminal Law (Amendment) Act, 1883, of New South Wales, which provided that " no conviction or judgment shall be reversed, arrested or " avoided .... unless for some substantial wrong or other "miscarriage of justice” The effect of those words, it is submitted, is very similar to the effect of the words in s. 537 of the Indian Criminal Procedure Code, and the Board in Makins case (1) held that there was a substantial wrong or miscarriage of justice where matters material to the guilt or innocence of the accused were wrongfully submitted to the jury and if, instead of the accused being given the verdict of a jury on facts proved by legal evidence, he was to be found guilty or not guilty by an appellate court perusing the record of the evidence properly admissible. The ratio decidendi of their Lordships views, it is submitted, applies with even greater force to a case where a trial has been marked by the serious misdirection or non-direction of a jury. It may in some circumstances be possible for an appellate tribunal to exclude from consideration the inadmissible evidence and consider the effect on the mind of the jury of the evidence properly received, but, where by reason of material misdirection or non-direction the whole case has been presented to the jury improperly, it is impossible for an appellate tribunal to say what view of the case the jury might have formed if it had been properly presented to them. Makins case (1) has been followed in India in certain cases in which it has been held that the principles underlying it apply to jury trials in India. There are, however, other cases in which the courts in India have refused to follow Makins case (1), and have held that it had no application to India, mainly on the ground that s. 167 of the Indian Evidence Act put the matter on an entirely different footing. There are, however, other cases in which the courts in India have refused to follow Makins case (1), and have held that it had no application to India, mainly on the ground that s. 167 of the Indian Evidence Act put the matter on an entirely different footing. It is not suggested that Makins case (1) is of any assistance on the inadmissible evidence question in this case, because there is nothing comparable to s. 167 of the Evidence Act in the New South Wales statute; the case is relied on, however, for the principles to be adopted in a jury trial where there has been something gravely wrong in the court below, and it shows a disinclination of the appellate court to substitute its own view for that of the juryf the Indian decisions, some are for and some against the appellant. Wafadar Khan v. Queen-Empress (( 1894) I. L, R, 21 C. 955) is of considerable importance; it refers to Makins case ([ 1894] A, C. 57.) with approval, and has been followed in a number of cases, but is specially dissented from in the present case, in which, however, there is the distinction that there can be an appeal on fact as well as law. Wafadar Khans case (( 1894) I. L. R. 21 C. 955.) was followed in a similar case, Ali Fakir v. Queen-Empress (( 1897) I. L. R. 25 C. 230.). Taju Pramanik v. Queen-Empress (( 1898) I. L. R. 25 C. 711.), which is in a mild way against the appellant, decided that where there has been a case of misdirection the court is not bound to send the case back for re-trial, but can deal with it itself. Then it was said in Sadhu Sheikh v. The Empress (( 1900) 4 Cal. W. N. 576, 581.), " it is impossible for us to dive into the minds of the jurymen " and to say what effect this misdirection might, or might not, "" have had upon them, but it was calculated to mislead them " upon a material point, and to prejudice the prisoners, and it is " impossible for us to say that it has not, in fact, occasioned a " failure of justice." Emperor v. Smither (( 1902) I. L. R. 26 M. 1, 16.) does not appear to contain anything new. Emperor v. Ikram-Ud-Din (( 1917) I. L. R. 39 A. 348, 351.) followed the Calcutta cases above referred to. The Crown v. Bimal Parshad (( 1924) I. L. R. 6 Lah. 98.) is the first case to mention s. 449 of the Criminal Procedure Code, under which appeal lies on fact as well as law. Emperor v. Rajab Ali Fakir (( 1927) 31 Cal W, N. 881, 884.) is the most recent case directly in the appellants favour, and directed a re-trial where there had not been a proper summing-up ; it is the same as the present case ; the errors complained of in the summing-up were of a similar kind. The Full Bench in the present case have answered the questions submitted quite irrespective of the seriousness of the complaint. It is submitted that the duty of the court may be put thus when in a murder reference and appeal it is found that there have been serious instances of misdirection or non-direction of a jury, the High Court may not proceed to consider the evidence itself but must order a re-trial unless the High Court is satisfied that despite such mis direction or non-direction the case has in substance been properly presented to the jury. The next case, Government of Bengal v. Santiram Mondal (( 1930) A. I. R. (Cal.) 370, 378.), is in direct conflict with Wafadar Khans case (1). Sarojekumar Chakrabarti v. Emperor (( 1932) I. L. R. 59 C. 1361.), Binayendra Chandra Pande v. Emperor (( 1936) I. L. R. 63 C. 929, 949-52.), Emperor v. Jhina Soma (I. L. R. [ 1939] B. 648.), Mathews v. Emperor (( 1940) A. I. R. (Lah.) 87, 90.) and In re Harakchand Marwadi (( 1941) A. I. R. (Nag.) 324.) all appear to be rather against the appellant. Once there has been a hopeless misdirection to the jury then the accused has not had the benefit of a jury trial at all. Entirely different considerations apply to the question of evidence. Once there has been a hopeless misdirection to the jury then the accused has not had the benefit of a jury trial at all. Entirely different considerations apply to the question of evidence. It cannot be said that in all cases a trial is vitiated by the non-reception of admissible evidence or the admission of evidence which should not have been admitted, and it is conceded that the words of s. 167 of the Evidence Act present a difficulty for the appellant, and that if there were no Indian authorities on the point there would be grave difficulty in asking the Board to say, &s is submitted, that before s. 167 can be applied the evidence that has been wrongly admitted or excluded should be looked at to see what evidence remains. Most of the Indian authorities on this part of the case appear to be in the appellants favour Sheikh Hazir v. The Emperor (( 1910) 14 Cal. W. N. 493.), Ramesh Chandra Das v. Emperor (( 1919) I. L. R. 46 C. 895.) and Wafadar Khan v. Queen-Empress (I. L. R. 21 C. 955 970.), and it is submitted that they should be followed if there is a reasonably consistent line. [Reference was also made to Emperor v. Panchu Das (( 1920) I. L. R. 47 C. 671.) and Nitai Koley v. Emperor (I. L. R. [ 1939] 1 C. 337.).] It is not easy to justify these authorities, but bearing some of them in mind a possible answer to the evidence question is that, when in a murder reference and appeal it is found that inadmissible evidence has been admitted in a jury trial a re-trial must be ordered unless in the opinion of the High Court the evidence wrongly admitted was immaterial or of trifling nature or otherwise such as could not reasonably have affected the minds of the jury. That is submitted in view of the Indian cases, but it is conceded that s. 167 is against it. That is submitted in view of the Indian cases, but it is conceded that s. 167 is against it. Lastly, although a different system of jurisprudence and the interpretation of a different section is being here dealt with, the same rule should be applied in India as is adopted in England the decisions under the Criminal Appeal Act, 1907, are summarized fairly and accurately in the judgment of the Full Bench, " that s. 4 of the Criminal Appeal Act, 1907, has never u been considered as giving the Court of Criminal Appeal a right " to go into the facts and to determine for itself whether on " those facts it would have convicted the appellant or not " see also Stirland v. Director of Public Prosecutions ([ 1944] A. C. 315.) and Rex v. Haddy ([ 1944] K. B. 442.). Concluding, the questions were limited to murder, and the answers to s. 449 cases. It is submitted that s. 449 has not the overwhelming importance that the Full Bench thought it had. The appellants right of appeal in law is no larger or smaller by reason of the fact that there can be an appeal on fact—this matter should be dealt with purely as a matter of two legal points, inadmissible evidence and misdirection. The Privy Council dealt with s. 537, in Subrahmania Ayyar v. King-Emperor (( 1901) I. L. R. 25 M. 61.), and Maktns case ([ 1894] A. C. 57.) was accepted in Rex v. Dyson ([ 1908] 2 K. B. 454.). The correct rule in all cases, whether the appeal be from an acquittal or a conviction, is that the appellate court should only reverse the findings of the jury where it considers that no reasonable jury properly directed and on proper consideration of the evidence could so find. In no wise can the appellate tribunal substitute itself for the jury and exercise the ordinary function of a jury to decide directly the question of guilt or innocence on the evidence The correct answers to the questions referred to the Fall Bench depend on the nature of the matters complained of. If these matters are grave and might have reasonably affected the minds of the jury, then the appellate court should order a re-trial. If the answers of the Full Bench here are correct the jury disappears from the scene. B. MacKenna for the Crown. If these matters are grave and might have reasonably affected the minds of the jury, then the appellate court should order a re-trial. If the answers of the Full Bench here are correct the jury disappears from the scene. B. MacKenna for the Crown. With regard first to s. 167, it is submitted [a) that the words " in any case " include cases of trial by jury, (b) That the words " if it shall appear to the " court .... that .... there was sufficient evidence to " justify the decision " makes the opinion of the court the criterion by which the sufficiency or otherwise of the evidence is to be decided, (c) That the word " decision " in its relation to a jury case means the verdict of the jury—guilty or otherwise. The proper test is the courts own opinion as to which is the admissible evidence justifying the result of guilty or not guilty. If that is right, then the answer of the High Court dealing with that section is also right. Section 449 is of much more importance on the question of misdirection. It is submitted that the limitation of the answer to s. 449 cases was unnecessary, and that the clear words of s. 167 do not invite that distinction. It was said in Ramesh Chandra Das v. Emperor (I. L. R. 46 C. 895, 909.), a decision under s. 167, that " there is no reason why the same " principle should not be applied to the wrongful admission of evidence as to misdirection of law." That is invoked as a transition before coming to ss. 423 and 57 of the Criminal Procedure Code. First, as to s. 423, it is said for the appellant that if there is a misdirection and the High Court is of opinion that a reasonable jury properly directed might have acquitted the accused, then it must order a re-trial. I say that the High Court can always dismiss the appeal, founding on admissible evidence, and that if there is misdirection the High Court is not bound to do otherwise than dismiss the appeal if it is satisfied in its own opinion that the accused is guilty. I say that the High Court can always dismiss the appeal, founding on admissible evidence, and that if there is misdirection the High Court is not bound to do otherwise than dismiss the appeal if it is satisfied in its own opinion that the accused is guilty. The plain meaning of " erroneous " in sub-s. 2 of s. 423 is " wrong " or " incorrect " ; it qualifies " verdict," and a verdict is not wrong if, in the opinion of the court which is considering it, it is a right verdict. It is put against the respondent that s. 423, sub-s. 2, empowers the High Court to interfere if it is of opinion that the misdirection is sufficiently serious as to raise a doubt in the High Court that a reasonable jury might have decided the case otherwise if it had been properly directed. The subsection, however, says nothing about whether the misdirection is to be serious or trivial; the only indication of the character of the misdirection is that it must be such as to render the verdict erroneous. What meaning can be given to " erroneous" which would introduce the qualification of " serious " into misdirection ? With regard to s. 537, it is a possible view that as s. 423 deals exhaustively with the topic of misdirection being considered on appeal that part of s. 537 which deals with misdirection is not really applicable to misdirection being considered by a court on appeal. The second submission is that the words " has in fact " occasioned a failure of justice," applied to a misdirection, mean exactly the same as it has been submitted s. 423, sub-s. 2, means. Section 537 is a limiting section and does not extend the powers of the court beyond s. 423, sub-s. 2. The words 11 occasioned a failure of justice " in relation to misdirection mean caused a wrong result, and the appellants submission 11 sufficiently serious " cannot be fitted into s. 537. Reliance is placed on s. 307 only to say that where there is a Code which gives to the High Court extensive powers of questioning the findings of the jury on findings of fact, the argument for the appellant does lose much of its weight. Reliance is placed on s. 307 only to say that where there is a Code which gives to the High Court extensive powers of questioning the findings of the jury on findings of fact, the argument for the appellant does lose much of its weight. Where s. 449 makes the High Court the ultimate tribunal of fact, it cannot be contended that a trial under that section precludes the High Court from examining the facts, In other words, misdirection cannot be said to have occasioned a failure of justice where the ultimate tribunal of fact is satisfied that the verdict is right. There is no case under s. 449 as to the power of the High Court on appeal. The cases which have been cited all deal with appeals where the High Court have no power to allow an appeal on a question of fact. In a s. 449 case the High Court have the power to review the facts for themselves and to say that the jurys verdict was right notwithstanding the misdirection. This proposition does not cover cases where the irregularity has been so gross that it cannot be cured. There are some authorities which hold that the High Court has the power contended for even though they are not the ultimate fact finding tribunal, and the present case is a fortiori those. There are other cases, undoubtedly, which hold that the High Court has not got the power contended for in cases tried otherwise than under s. 449, but those judgments base their conclusions on the circumstance that the High Court was not the ultimate fact finding tribunal. The present case, therefore, is distinguishable from those latter authorities, and, indeed, they are of assistance rather than otherwise when the case comes under s. 449. In the first case, Elahee Buksh (5 Suth. W. R. 80.), the rule was laid down that there was no failure of justice if the High Court were satisfied that the findings clearly established the guilt of the accused even though there had been a misdirection. The Code at that time gave no appeal on questions of fact. In the first case, Elahee Buksh (5 Suth. W. R. 80.), the rule was laid down that there was no failure of justice if the High Court were satisfied that the findings clearly established the guilt of the accused even though there had been a misdirection. The Code at that time gave no appeal on questions of fact. Then it was said in Wafadar Khan v. Queen-Empress (I. L. R. 21 C. 955, 977) that " it is quite clear, " therefore, that we have no power to try the accused in this " appeal on matters of fact." The foundation for that reasoning was that s. 418 denied the High Court the power of hearing appeals on questions of fact. If, however, that reasoning was right, it does not apply to a case under s. 449. In Emperor v. Smither (I. L. R, 26 M. 1, 6.) the High Court accepts Elahee Bukshs case (1) as being right, and they apply it to the case of an appeal from an acquittal it is a strong authority in favour of the view that the High Court has the power for which the respondent contends, and it was referred to in Mathews v. Emperor (( 1940) A. I. R. (Lah.) 87.). In Queen-Empress v. Ramchandra Govind Harshe (( 1892) I. L. R. 19 B. 749.) the High Court expressly dissented from Wafadar Khans case (2) and expressed approval of Elahee Buksh (1) ; to the extent to which they inquired into the powers of a High Court under s. 537 they are in the respondents favour. It was said in Ramchandra v. Emperor (( 1933) A. I, R. (Bom.) 153, 155.) that "in a case therefore of misdirection or " admission of improper evidence the High Court can go into " the facts and decide for itself whether the decision of the lower " court is right on the merits pr whether the misdirection or the " illegal admission of evidence has occasioned a failure of "justice” and they then referred to a number of cases which may be regarded as a useful summary of some of the recent authorities in the respondents favour. In Binayendra Chandra Pande v. Emperor (I. L. R. 63 C. 929.), a case both of misdirection and misreception of evidence, the High Court upheld the conviction. In Binayendra Chandra Pande v. Emperor (I. L. R. 63 C. 929.), a case both of misdirection and misreception of evidence, the High Court upheld the conviction. Sheo Swamp v. King-Emperor (( 1934) I. L. R. 56 A. 645.) shows the approach to the consideration of the powers of the High Court which, it is submitted, supports the judgment in the present case. Lastly, The Crown v. Bimal Parshad (( 1924) I. L. R. 6 Lah. 98.) shows, in relation to s. 307, the High Court at Lahore drawing a distinction between cases tried under s. 449 and cases tried otherwise than under that section, and saying that the High Courts powers are wider than they would be under s. 449. If the Board are of opinion that Elahee Buksh (5 Suth. W. R. 80.) and the other cases were wrongly decided Bimal Parshads case (4) supports the submission that a distinction should be drawn in the case of a trial under s. 449. If the Board are against the High Court on either of the two questions, then the case should be remitted to the Divisional Court with the proper answers so that that court may consider whether this is a case for a re-trial. Quass replied. The authorities in favour of the respondent are under s. 418, where it is agreed that there is no appeal on fact. Apart from the point about an appeal from an acquittal, the position in this case is substantially the same as would be the case in England under the Criminal Appeal Act. In re Veerappa Goundan (( 1928) I. L. R. 51 M. 956.)-—a s. 307 case—cites the English cases a person in India, just as much as in England, in the cases where the law gives him a right to be tried by a jury, has a right of which he is not deprived by the sections of the Code in question. Feb. 26. The judgment of their Lordships was delivered by LORD MACMILLAN, who after making the introductory statement set out above, continued It will be observed that the answers returned by the Full Bench are narrower in scope than the questions referred to it, and are limited to cases under s. 449 of the Criminal Procedure Code. Feb. 26. The judgment of their Lordships was delivered by LORD MACMILLAN, who after making the introductory statement set out above, continued It will be observed that the answers returned by the Full Bench are narrower in scope than the questions referred to it, and are limited to cases under s. 449 of the Criminal Procedure Code. This is explained by the circumstance that the case was one in which European and Indian British subjects were concerned and therefore came within the special provisions relating to such cases contained in chapter XXXIII. of the Code, and particularly the special provisions relating to appeal in s. 449, which, inter alia, authorize an appeal on a matter of fact as well as on a matter of law in jury cases. The judgment of the Full Bench discusses with much learning and a full citation of authorities the whole ground covered by the questions referred to it, but thought it right to limit its answers to the specific case, as to which, being a case under s. 449, which allowed an appeal on fact as well as on law, it was in any event clear what the answers should be, whatever view might be taken with regard to appeals under other sections of the Code. As the Order in Council grants leave to appeal on the two questions referred to the Full Bench, and as it is desirable that the whole matters raised in these questions should be considered and decided, their Lordships do not propose to confine themselves to the special case of appeals under s. 449. In India the verdict of a jury in a criminal case may come before the High Court for consideration in a variety of ways. In India the verdict of a jury in a criminal case may come before the High Court for consideration in a variety of ways. I. Under chapter XXIII., s. 307, of the Criminal Procedure Code, if the trial judge disagrees with the verdict and is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court " he shall submit the case accordingly, " recording the grounds of his opinion " and " shall not record " judgment of acquittal or of conviction." The powers of the High Court in such a case are thus defined in sub-s. 3 of the section "In dealing with the case so submitted the High " Court may exercise any of the powers which it may exercise " on an appeal, and subject thereto it shall, after considering the M entire evidence and after giving due weight to the opinions of " the Sessions Judge and the jury, acquit or convict such " accused of any offence of which the jury could have convicted " him upon the charge framed and placed before it ; and, if " it convicts him, may pass such sentence as might have been " passed by the Court of Session." II. Under chapter XXVII., s. 374, of the Code " When the " Court of Session passes sentence of death, the proceedings " shall be submitted to the High Court and the sentence shall " not be executed unless it is confirmed by the High Court," In such a case the High Court, under s. 376, " (a) may confirm " the sentence, or pass any other sentence warranted by law ; " or (b) may annul the conviction, and convict the accused of " any offence of which the Sessions Court might have convicted " him, or order a new trial on the same or an amended charge, or u (c) may acquit the accused person." III. Chapter XXXI. of the Code deals with appeals generally, whether by the public prosecutor from an acquittal or by the accused from conviction and sentence. Chapter XXXI. of the Code deals with appeals generally, whether by the public prosecutor from an acquittal or by the accused from conviction and sentence. Section 418, sub-s. I, provides that " an appeal may lie on a matter of fact as well as a " matter of law except where the trial was by jury, in which " case the appeal shall lie on a matter of law only." Section 423 defines the powers of the appellate court disposing of the appeal. The court under sub-s. 1, is to send for the record of the case, if not already before it, and " after perusing " such record" and hearing the parties M the Court may, if it " considers that there is no sufficient ground for interfering, " dismiss the appeal, or ma}7— " (a) in an appeal from an order of acquittal, reverse such " order and direct that further inquiry be made, or thatthe " accused be retried or committed for trial, as the case may " be, or find him guilty and pass sentence on him according " to law; " (b) in an appeal from a conviction, (1.) reverse the finding " and sentence, and acquit or discharge the accused, or order " him to be retried by a court of competent jurisdiction " subordinate to such appellate court or committed for trial, " or (2.) alter the finding, maintaining the sentence, or with " or without altering the finding, reduce the sentence, or " (3-) with or without such reduction and with or without " altering the finding, alter the nature of the sentence, but " subject to the provisions of s. 106, sub-s. 3, not so as to M enhance the same." Sub-section 2 of s. 423 is of special importance for the present purpose, and is as follows —" Nothing herein contained shall " authorize the court to alter or reverse the verdict of a jury, " unless it is of opinion that such verdict is erroneous owing to a " misdirection by the judge, or to a misunderstanding on the " part of the jury of the law as laid down by him." IV. Chapter XXXIII. Chapter XXXIII. of the Code, which applies to the case in hand, contains special provisions relating to cases in which European and Indian British subjects are concerned, and in relation to jury trials provides in s. 449, sub-s. 1, that " not- " withstanding anything contained in s. 418 or s. 423, sub-s. 2, " or in the Letters Patent of any High Court, an appeal may lie " to the High Court on a matter of fact as well as on a matter " of law." Chapter XLV., which is etitled " Of Irregular Proceedings," provides in s. 537 as follows " Subject to the provisions " hereinbefore contained, no finding, sentence or order passed "by a court of competent jurisdiction shall be reversed or " altered under Chapter XXVII. or on appeal or revision on " account— " (a) of any error omission or irregularity in the complaint, " summons, warrant, charge, proclamation, order, judgment " or other proceedings before or during trial or in any inquiry " or other proceedings under this Code ; " (d) of any misdirection in any charge to a jury unless such " error, omission, irregularity, or misdirection has in fact " occasioned a failure of justice.” To complete this citation of the statute law affecting revision and appeals in jury trials it is necessary to add the provision contained in s. 167 of the Indian Evidence Act, 1872, which applies to all judicial proceedings in or before any court, including jury trials. The section reads as follows —" The " improper admission or rejection of evidence shall not be " ground of itself for a new trial or reversal of any decision in " any case, if it shall appear to the court before which such " objection is raised that, independently of the evidence " objected to and admitted, there was sufficient evidence to " justify the decision, or that, if the rejected evidence had been " received, it ought not to have varied the decision.” No one can read these statutory enactments without realizing I the wide disparity between the law of India and the law of England in their respective attitudes to the verdict of a jury in criminal cases. In India the law is purely the creation of statute, and the introduction of the system of jury trial among a people who had no previous experience of its working was not unnaturally accompanied with safeguards and modifications appropriate to such circumstances. In England, on the other hand, trial by jury, the palladium of British justice as Black-stone terms it, is an institution deeply rooted in the minds and habits of the people, with which they have been familiar from time immemorial. It is therefore not surprising to find the verdict of a jury treated differently in Indian criminal legislation. To emphasize the difference it is enough to point out that the statute law in India in certain circumstances permits an appeal against a jurys verdict of acquittal and authorizes the appellate court to substitute a conviction on its own consideration of the evidence. Time and again eminent judges in India have drawn attention to the importance of bearing these circumstances in mind and the danger of allowing preconceptions derived from English practice to influence the decision of Indian cases (see, for example, the observations of Jackson J. in Elahee Buksh (( 1866) 5 Suth. W. R. 80, 94.)). This is not to say that the verdict of a jury is to be lightly regarded in India. Far from it. The legislature has enjoined appellate courts expressly to pay regard to it, but at the same time it has thought it right and necessary in the circumstances of India to confer upon appellate courts extensive powers of overruling or modifying a verdict in the interests of the due administration of justice, confident that the appellate judges, who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. The first question submitted relates to the effect of the misreception of evidence. It has been found by the High Court that in the present case material evidence was improperly admitted. What are the powers and what is the duty of the High Court in such circumstances? It was contended for the appellant that the evidence improperly admitted might have so seriously prejudiced the minds of the jury as to have brought about a failure of justice, and that he was entitled on a new trial to have the verdict of a jury on proper evidence. It was contended for the appellant that the evidence improperly admitted might have so seriously prejudiced the minds of the jury as to have brought about a failure of justice, and that he was entitled on a new trial to have the verdict of a jury on proper evidence. To this submission s. 167 of the Indian Evidence Act, in their Lordships opinion, affords a complete and conclusive answer. The improper admission of evidence is thereby expressly declared not to be a ground of itself for a new trial. The appellate court must apply its own mind to the evidence and after discarding what has been improperly admitted decide whether what is left is sufficient to justify the verdict. If the appellate court does not think that the admissible evidence in the case, is sufficient to justify the verdict then it will not affirm the verdict, and may adopt the course of ordering a new trial or take whatever other course is open to it. But the appellate court, if satisfied that there is sufficient admissible evidence to justify the verdict, is plainly entitled to uphold it. If the misreception of evidence is an irregularity within the meaning of s. 537 of the Criminal Procedure Code, on which their Lordships find it unnecessary to pronounce an opinion, it plainly has not occasioned a failure of justice where, as here, the appellate court, obeying the injunction contained in s. 167 of the Indian Evidence Act, has found that there is sufficient admissible evidence to justify the verdict. Their Lordships find themselves accordingly in agreement with the answer returned by the Full Bench to the first question addressed to it by the Divisional Bench subject to an amendment of the concluding words of the answer so as to read " provided the admissible evidence " remaining is, in the opinion of the court, sufficient clearly to " establish the guilt of the accused." They see no need, however, to limit the answer to a murder reference and appeal under s. 449 of the Code. The second question requires more detailed consideration. The High Court has found that in his charge to the jury the learned Sessions Judge seriously misdirected them. Does this entitle the accused as of right to an order for a retrial ? The second question requires more detailed consideration. The High Court has found that in his charge to the jury the learned Sessions Judge seriously misdirected them. Does this entitle the accused as of right to an order for a retrial ? It will be observed that in the sections of the Criminal Procedure Code above quoted there is express reference to a misdirection to a jury in two places, once in s. 423, sub-s. 2, and again in s« 537- The guidance thereby given to the appellate court is in each case negative, not positive. Under the earlier section the court is enjoined not to reverse the jurys verdict unless it is of opinion that the verdict is " erroneous owing to a misdirection " by the judge, or to a misunderstanding on the part of the jury " of the law as laid down by him." Under the later section the court is enjoined not to reverse or alter the jurys verdict on account of any misdirection in the judges charge unless such misdirection has in fact occasioned a failure of justice. While these injunctions are expressed negatively they may be said to be pregnant negatives, implying that there is a case for reversing or altering the verdict of the jury when the court is of opinion either that the verdict is erroneous owing to the judges misdirection or the jurys misunderstanding of the law laid down by him or that the misdirection has in fact occasioned a failure of justice. The primary duty of the court on an appeal is indicated in s. 423, sub-s. 1. It is to consider with the record before it whether there is " sufficient ground for interfering." That there has been a misdirection is not of itself a sufficient ground to justify interference with the verdict. The court must proceed to consider whether the verdict is erroneous owing to the misdirection or whether the misdirection has in fact occasioned a failure of justice. If the court so finds then it has a plain justification for interfering and, indeed, a duty to do so. The court must proceed to consider whether the verdict is erroneous owing to the misdirection or whether the misdirection has in fact occasioned a failure of justice. If the court so finds then it has a plain justification for interfering and, indeed, a duty to do so. The controversy which, as the reported cases show, has long existed in the High Courts of India has centred round the question whether the appellate court, in deciding whether there is sufficient ground for interfering with the verdict of a jury, particularly where there has been a misdirection by the judge, has the right and duty to go into the merits of the case for itself and on its own consideration of the evidence to make up its mind whether the verdict was justified or not. On the one hand, it has been said that the accused is entitled to have his guilt or innocence decided by the verdict of a jury and that the appellate court has no right to substitute its own judgment in place of a verdict by a jury. The powerful observations on this subject by Lord Herschell L.C. in Makin v. Attorney-General for New South Wales ([ 1894] A. C. 57.), are invoked in support of this view. On the other hand, it is argued that it is impossible for the court to perform the duty laid on it by the Code without applying its own mind to the soundness of the verdict. The argument that no man shall be convicted save b}r the verdict of a jury returned on competent evidence and under proper judicial direction loses much of its force so far as India is concerned when it is realized that in an appeal from an acquittal the appellate court under s. 423, sub-s. 1 (a), if it considers that there is sufficient ground for interfering may find the accused guilty and pass sentence on him according to law. How it can do so without itself going into the whole merits of the case it is impossible to conceive. Moreover, in performing its duty under s. 374, when a sentence of death is submitted to it for confirmation, the High Court of necessity is entitled and bound to consider the whole merits of the case for itself. How it can do so without itself going into the whole merits of the case it is impossible to conceive. Moreover, in performing its duty under s. 374, when a sentence of death is submitted to it for confirmation, the High Court of necessity is entitled and bound to consider the whole merits of the case for itself. How else could it decide, as it may do, to acquit the accused notwithstanding the jurys verdict of guilty ? Similarly, under s. 307, where the trial judge who disagrees with the jurys verdict submits the case to the High Court, it is plainly the duty of the High Court to go into the whole case for itself to enable it to decide whether the accused should be acquitted or convicted. There is therefore nothing shocking in the estimation of the legislature of India in empowering an appellate court notwithstanding the verdict of a jury, to reconsider the evidence for itself and arrive at a contrary conclusion. Under such a system arguments derived from English practice or from the Australian case above-mentioned ([ 1894] A. C. 37.) are seen to be inapplicable and, indeed, misleading. But it is said that whatever may be permissible under other sections of the Code, it is not permissible for the appellate court to go into the merits of the case in an appeal under chapter XXXI., for s. 418 enacts expressly that where there has been a trial by jury an appeal shall lie on a matter of law only. This, it is argued, precludes the appellate court from entering on the merits. It has already been pointed out that under s. 423 the appellate court may on an appeal from an acquittal find the accused guilty. This power is not expressed to be inapplicable to cases where the acquittal has been by the verdict of a jury, and if it is to be exercised would seem necessarily to involve the consideration of the whole case on the evidence. This power is not expressed to be inapplicable to cases where the acquittal has been by the verdict of a jury, and if it is to be exercised would seem necessarily to involve the consideration of the whole case on the evidence. An appeal may be entertained only on a question of law, but once it has been held by the appellate court that there has been an error in law it is open to it to " interfere " with the jurys verdict, and if it thinks that the error in law affords sufficient ground for doing so it will then proceed to consider which of the various forms of " interference " it will adopt. Section 423 clearly indicates that within its meaning a misdirection by the judge falls within the category of error in law, for it contemplates in sub-s. 2 that an appeal is competent on the ground of misdirection. But a misdirection having been found to have occurred it is not necessarily a ground for interference. It may have been of a more or less trivial character. But if it has led to an erroneous verdict being returned, or to a failure of justice, the statute plainly indicates that a case for interference has arisen. What form the interference shall take is left to the court, which is given a wide discretion. It need not order a re-trial. It may, for example, acquit the accused. To order a re-trial might well operate injustice in readily conceivable circumstances. The question of the precise meaning of the word " erroneous" occurring in s. 423, sub-s. 2, has been much discussed. One view is that it means that the verdict is wrong on the merits. The other is that it means that the verdict has been vitiated by the misdirection irrespective of the merits, and that it is not for the court to consider what judgment it would have given on the merits but what verdict a jury properly directed might have returned on the evidence. The other is that it means that the verdict has been vitiated by the misdirection irrespective of the merits, and that it is not for the court to consider what judgment it would have given on the merits but what verdict a jury properly directed might have returned on the evidence. Their Lordships do not find it necessary to express an opinion on this question of construction in view of the terms of s. 537 which peremptorily precludes the court from interfering with a jurys verdict on the ground of misdirection unless the misdirection has " in fact occasioned a " failure of justice." The words " in fact " were inserted by amendment to give emphasis to the injunction, and it is noteworthy that the legislature took this step after two decisions by the High Court in Calcutta by which it had been held that it was not entitled in deciding whether there had been a failure of justice to go into the evidence for itself Wafadar Khan v. Queen-Empress (( 1894) I. L. R. 21 C. 955.) and Alt Fakir v. Queen-Empress (( 1897) I. L. R. 25 C. 230.). In their Lordships opinion the court, in deciding whether there has been in fact a failure of justice in consequence of a misdirection, is entitled to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted. In the exhaustive judgment of the Full Bench the authorities on the subject are very fully discussed. Their Lordships do not propose to analyse them again in detail. But they desire to draw special attention to Elahee Buksh (3) the importance of which seems to have been to some extent overlooked in certain subsequent cases. The decision in Elahee Buksh’s case (5 Suth. W. R. 80.) was that of a Full Bench of five judges of the High Court of Calcutta, presided over by that learned and experienced Chief Justice, Sir Barnes Peacock. There the appellant was convicted and sentenced to transportation for the crime of dacoity. At the trial the judge seriously misdirected the jury. The Divisional Bench sought guidance from the Full Bench. The provisions of the Criminal Code at that time were not identical with those now in force, but were substantially the same. There the appellant was convicted and sentenced to transportation for the crime of dacoity. At the trial the judge seriously misdirected the jury. The Divisional Bench sought guidance from the Full Bench. The provisions of the Criminal Code at that time were not identical with those now in force, but were substantially the same. The learned Chief Justice in a careful judgment, concurred in by his colleagues, examined in all its bearings the question of the powers and duty of an appellate court in dealing with an appeal where misdirection has occurred. He points out that the statute does not compel the court to send the case back for a new trial. " In determining," he says (Ibid. 80, 90.), " whether the verdict "ought to be set aside and a new trial granted for a defective " summing-up of the evidence, it appears to me that the " question to be considered is not whether, upon a proper " summing-up of the whole evidence, a jury might possibly "give a different verdict, but whether the legitimate effect of " the evidence would require a different verdict." He expressed his decision in formal propositions of which the second and third may be usefully quoted (5 Suth W. R. 92.) —" 2. That, for the reasons above " stated, there was error in law in the summing-up of the evidence, which would warrant the court in setting aside the " verdict of guilty if the court is satisfied that the prisoner " was prejudiced by the error, and that there has been a failure " of justice." " 3. That the verdict and conviction ought not " to be set aside if the court be of opinion that the verdict was " warranted by the evidence, and that upon that evidence they " would have upheld the conviction on appeal if the trial had " been by the judge with the aid of assessors, instead of by "jury." On the point having again arisen in the case of Wafadar Khan (I. L. R. 21 C. 955.) in 1894 a Calcutta Divisional Bench, to which Elahee Buksh (5 Suth. W. R. 80.) was surprisingly not cited, took the view that, there having been misdirection and the appeal being only on law, the court had no right to go into the facts for itself. W. R. 80.) was surprisingly not cited, took the view that, there having been misdirection and the appeal being only on law, the court had no right to go into the facts for itself. In reaching this decision the court was largely influenced by the Australian case of Makin ([ 1894] A. C. 57.). In 1897 in Alt Fakir (I. L. R. 25 C. 230.), a Divisional Bench in Calcutta, again without regard to the decision of the Full Bench in Elahee Buksh (3), followed the decision in Wafadar Khans case (2). On the other hand, there have been several cases in which the ruling in Elahee Bukshs case (3) has been given effect. It is sufficient to refer to Emperor v. Smither (( 1902) I. L. R. 26 M. 1.) and Mathews v. Emperor (( 1940) A. I. R. (Lah.) 87.). In the former the appeal was by the public prosecutor against an acquittal at a jury trial. There having been a misdirection by the judge the advocate-general contended that the court was bound to order a re-trial. This contention was negatived. Benson J. used these words (I. L. R. 26 M. 16.) M We cannot say that there has, in fact, been a failure of justice " without considering the credibility of the evidence, and I " think it would be unreasonable, and contrary to the express " direction of s. 537, to hold that once misdirection, even though "it be an important one, is established we are bound " mechanically to order a re-trial, even though in our judgment " the evidence for the prosecution is untrustworthy” In the case of Mathews (( 1940) A. I. R. (Lah.) 87.) the appellant by the verdict of a jury had been found guilty on three charges of cheating and fraud, and the accused appealed from the convictions. Blacker J., after holding that there had been misdirection, reviewed a number of the conflicting authorities, though Elahee Bukshs case (5 Suth. W. R. 80.) was apparently not cited, and reached the conclusion that he was entitled himself " to examine the evidence to see whether the " verdict was erroneous and has caused a failure of justice." Having done so he set aside the verdict and sentence and acquitted the appellant on one of the charges but affirmed the verdicts and sentences on the two other charges. Without finding it necessary to express any opinion with regard to the learned judges interpretation of the word " erroneous," their Lordships find themselves in agreement with his decision that he was entitled to examine the evidence for himself to see whether it justified the verdicts pronounced, or whether there had in fact been a failure of justice. Before parting with the case their Lordships would observe that the views of some of the judges who have considered the matter in India have been much influenced by the circumstance that in some instances the appellant may appeal both on fact and on law while in others the appellant may appeal only on law. Their Lordships do not attach so much importance to this distinction, nor do they find in it a determining feature. Consequently, they do not think it necessary, in agreeing with the answer of the Full Bench to the second question posed by the Divisional Bench in the present case, to restrict the answer to appeals arising under s. 449, which provides for an appeal both on fact and on law. In the result their Lordships will humbly advise His Majesty that the appeal be dismissed. PRACTICE NOTE. Practice—Religious institution—Suit under s. 92 of Code of Civil Procedure—Unjustifiable appeal to Privy Council—Costs. Where the Board, in dismissing ap p eals (P. C. App. No. 3 of 1940.) from two decrees of the High Court at Bombay, were of op inion that the ap peals, which arose out of proceedings by the appellants, of the Swaminarayan sect, under s. 92 of the Code of Civil Procedure for the removal of the Achary a and trustees of the Ahmedabad temple (the respondents), and for a scheme and accounts, ought not to have been brought by p ersons purp orting to act in the interests of the Institution, the Board refused to direct that the costs of all parties should be paid out of the funds of the Institution, and ordered that the appellants be directed to p ay the costs of the respondents of the ap peal to the Board, and that any costs which the respondents might fail to recover from the ap pellants could be paid or retained out of the funds of the Institution. * Present Lord M acmillan, Lord du Parco and Sir John Beaumont.