Judgement Consolidated Appeals (No.79 of 1946), by special leave, from a judgment of the High Court in its appellate criminal jurisdiction (October 29, 1945) which affirmed a judgment of the same court in its original criminal jurisdiction (May 3, 1945). The following facts and statutory provisions are taken from the judgment of the Judicial Committee. The appellants were tried by the High Court, with certain other persons, for conspiracy under s. 120B of the Indian Penal Code, and abetment to commit murder under s. 302 read with s. 109, and were convicted on both charges, and sentenced to transportation for life. They appealed to the High Court, and by an order dated July 12, 1945, the Appellate Court allowed them to appeal on matters of fact as well as of law under s. 411A, sub-s.1 (b], of the Code of Criminal Procedure. Section 411A was introduced into the Code of Criminal Procedure by Act XXVI of 1943, which enacted as follows “Insertion of new s. 411A in Act V. of 1898.—After s. 411 of the Code of Criminal Procedure, 1898 (V. of 1898) (herein-after referred to as the said Code), the following section shall be inserted, namely 411A. Appeal from sentence of High Court.—(1.) Without prejudice to the provisions of s. 449 any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in s. 418 or s. 423, sub-s.2, or in the Letters Patent of any High Court, appeal to the High Court— "(a) against the conviction on any ground of appeal which involves a matter of law only; "(b) with the leave of the appellate Court, or upon the certificate of the judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be sufficient ground of appeal; and "(c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law. "(2.) Notwithstanding anything contained in s. 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original-criminal jurisdiction, and such appeal may, not-withstanding anything contained in s. 418, or s. 423, sub-s. 2, or in the Letters Patent of any High Court, but subject to the restrictions imposed by cl. (b) and cl. (c) of sub-s.1 of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law." The Act contained certain consequential amendments of the Code and of the Letters Patent to which it is not necessary to refer. Law Rep. 74 Ind. App. 132 ( 1946- 1947) Thiagaraja Bhagavathar V. King-Emperor 88 In the appeal of the appellants to the High Court at Madras (Leach C. J. and Lakshmana Rao J.) the leading judgment was given by the learned Chief Justice. He considered the powers which the court possessed where leave to appeal on the facts had been given. He noticed that cls. (a), (b) and (c) of sub-s.1 of s. 411A followed the language of cls. (a), (b) and (c) of s. 3 of the English Criminal Appeal Act, 1907. He considered the powers which the court possessed where leave to appeal on the facts had been given. He noticed that cls. (a), (b) and (c) of sub-s.1 of s. 411A followed the language of cls. (a), (b) and (c) of s. 3 of the English Criminal Appeal Act, 1907. But he also noticed that there was omitted from the Indian Act any provision corresponding to s. 4, sub-s. 1, of the English Act which provides " The Court of Criminal Appeal on any such appeal " against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is "unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the " appellant was convicted should be set aside on the ground of " a wrong decision of any question of law or that on any " ground there was a miscarriage of justice, and in any other "case shall dismiss the appeal." The learned Chief Justice then discussed various decisions of English courts on the Criminal Appeal Act, 1907, and expressed the view that the powers of the High Courts in India were similar to those of the Court of Criminal Appeal in England notwithstanding the omission of any provision corresponding to s. 4, sub-s. 1, of the English Act, and that the court had power to set aside the verdict of a jury, if on consideration of the facts and of the circumstances of the case, it was convinced that the verdict was unreasonable. After considering the evidence against the appellants and the summing-up by the trial judge, the court held that the jury had been properly directed and that there was material on which their decision could reas6nably be based. Accordingly, without considering whether or not the court agreed with the verdict of the jury, the appeal of the appellants was dismissed. 1947. Feb. 24, 25. Pritt K.C. and Subba Row for the appellants. Under s. 411A of the Criminal Procedure Code when the High Court entertains an appeal on matters of fact it should consider all the facts and make up its mind what ought to be done, giving the verdict of the jury no more than the weight of the fact that the jury have seen the witnesses. Under s. 411A of the Criminal Procedure Code when the High Court entertains an appeal on matters of fact it should consider all the facts and make up its mind what ought to be done, giving the verdict of the jury no more than the weight of the fact that the jury have seen the witnesses. The High Courts view that on an appeal of that kind they ought not to upset the jurys verdict if there was material on which it could be based and if it did not appear to be unreasonable, proceeds on the wrong principle. In the light of the legislative position in which s. 411A was enacted it should be construed in favour of the appellants. The section means what it says, and, on an appeal to the High Court against either conviction or acquittal which involves a question of fact, the right construction is that the court must hear the appeal in the ordinary way—the matter is at large. The appellate court below erred in going straight to the English law; the law of India differs from that of England in its attitude towards the verdict of the jury, and the practice of the Court of Criminal Appeal in England in this respect is not applicable to India. As was said in Abdul Rahim v. King-Emperor (( 1946) L. R. 73 I. A. 77, 90.), " no one can read these " statutory enactments without realizing 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.” The test here is not that of unreasonableness, but that the court having full power to review at large the evidence, and giving proper weight to the consideration of all matters, including the opinion of the jury, should come to its own conclusion whether the conviction should stand or not Sheo Swarup v. King-Emperor (( 1934) L. R. 61 I. A. 398.). There is nothing in the Indian law to put a verdict of te jury on any particular pedestal. [Reference was made to Ramanugrah Singh v. King-Emperor (( 1946) L. R. 73 I. A. 174.).] If the High Court had adjudicated on the right principle it is submitted that it would have acquitted the appellants. Slade K.C. and D. A. Grant for the respondent. [Reference was made to Ramanugrah Singh v. King-Emperor (( 1946) L. R. 73 I. A. 174.).] If the High Court had adjudicated on the right principle it is submitted that it would have acquitted the appellants. Slade K.C. and D. A. Grant for the respondent. In Abdul Rahim v. King-Emperor (( 1946) L. R. 73 I. A. 77, 90.) the Board laid it down that the primary duty of an appellate court on the hearing of a criminal appeal was indicated in s. 423, sub-s.1, of the Criminal Procedure Code. In other words, the test in the appellate court on appeals on fact from juries is whether there is Law Rep. 74 Ind. App. 132 ( 1946- 1947) Thiagaraja Bhagavathar V. King-Emperor 89 sufficient ground for interfering, for while it is conceded that there is no express limitation on the power of the court .under s. 411A, that section must be read subject to the qualification in s. 423, sub-s.1, which now applies to appeals from juries. Apart from s.423, sub-s.1, there is no qualification whatsoever in the language of s. 411A. Further, it is revolutionary in the same sense that s. 449 was revolutionary in 1923. If the construction for which the appellants contend is put on s. 411A the extraordinary result follows that the appellate court, after the accused has been acquitted, can decide the case de novo purely on the record without ever seeing a single witness. It comes to this, that the appellate court may substitute its own view for that of the jury. Where there has been no evidence improperly rejected or admitted, and no misdirection, and the accused has been acquitted, the prosecutor, because he happens to disagree with the jurys verdict, may apply for a certificate under s. 411A and take the matter on appeal, and the contention for the appellants is that on the proper construction of s. 411A the appellate court may in substance make themselves the jury instead of the persons provided by the legislature. This is the first case on the construction of s. 411A to come before the Board; the first Indian case was Ganpat Jivaji v. King-Emperor (( 1944) 47 Bom. L. Rptr. 365 (footnote).), where there are dicta in favour of the present appellants. The view in Government of Bombay v. Inchya Fernandez (( 1945) 47 Bom. L. Rptr.363.), however, supports the respondent here. L. Rptr. 365 (footnote).), where there are dicta in favour of the present appellants. The view in Government of Bombay v. Inchya Fernandez (( 1945) 47 Bom. L. Rptr.363.), however, supports the respondent here. ["Reference was also made to Hashmatulla Rahatulla v. Emperor (( 1946) A. I. R. (Bom.) 465.), Bombay Government v. Abdul Wahab (( 1946) A. I. R. (Bom.) 38) and Ajit Kumar v. Emperor (( 1946) A. I. R. (Nag.) 99).] Due weight cannot be given to the opinion of the jury when it is not known on what it is based —it might be based on false premises. It is difficult to understand how Abdul Rahims case (( 1946) L. R. 73 I. A. 77, 90.) is put against the respondent —there the jurys verdict was vitiated by misreception of inadmissible evidence and misdirection. The principles in Sheo Swamps case (L. R. 61 I. A. 398.) do not apply in the case of appeal from jury. The High Court rightly construed S.411A, and no ground has been shown for interfering with their decision. Pritt K.C. replied. March 27. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT, who stated the facts set out above and continued The appeal raises an important question as to the scope of the powers of the court under s. 411 a of the Code which was introduced into the Code by Act XXVI. of 1943. To appreciate the effect of the new section it is desirable to notice the provisions of the Code relating to trials by jury in the High Courts, and to appeals from the verdicts of juries in Sessions trials held in the Mofussil. The High Courts in the old Presidency towns of Madras, Calcutta and Bombay possess, under their letters patent, original criminal jurisdiction, and s. 267 of the Code of Criminal Procedure directs that all criminal trials before a High Court shall be by jury. Section 274 provides that in trials before the High Court the jury shall consist of nine persons, and s. 299 imposes on the jury the duty of deciding all questions of fact. Under s. 305 the judge is bound by the unanimous opinion of the jury, but when the jury are divided and as many as six are of one opinion and the judge agrees with them, the judge shall give judgment in accordance with such opinion. Under s. 305 the judge is bound by the unanimous opinion of the jury, but when the jury are divided and as many as six are of one opinion and the judge agrees with them, the judge shall give judgment in accordance with such opinion. Under the letters patent affecting such High Courts there is no appeal from any sentence or order passed or made in any criminal trial before the courts of original criminal jurisdiction, though a point of law may be reserved by the trial judge, or may be brought before the court on a certificate of the Advocate-General. In the case of trial by jury in a Court of Session in the Mofussil there is a right of appeal against conviction under s. 410 of the Code, and against acquittal under s. 417. But s. 418 provides (1.) 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; (2.) Notwithstanding anything contained in sub-s.1 or in s. 423, sub-s. 2, when, in the case of a trial by jury, any person is sentenced to death, any other person convicted in the same trial with the Law Rep. 74 Ind. App. 132 ( 1946- 1947) Thiagaraja Bhagavathar V. King-Emperor 90 person so sentenced may appeal on a matter of fact as well as a matter of law. This sub-section must be read with s. 374, which requires any sentence of death passed by a Court of Session to be confirmed by the High Court. Section 423, sub-s.1, confers various powers upon the court of appeal, but sub-s. 2 provides "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.” Section 449 allows an appeal from the verdict of a jury on a matter of fact as well as on a matter of law in cases tried under ch. 33 of the Code, which relates to cases in which European and British Indian subjects are concerned. 33 of the Code, which relates to cases in which European and British Indian subjects are concerned. It may be noticed also that it is provided under s. 307 that if the judge disagrees with the verdict of the jurors or a majority of them 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 it accordingly, and on such reference the High Court may exercise any of the powers which it may exercise on an appeal, and shall dispose of the reference as provided in the section. In that state of the law, Act XXVI. of 1943 was enacted. [His Lordship read s. 411A and continued] Before considering the correctness of the judgment under appeal their Lordships will notice certain decisions on s. 411A which have been given by the High Court of Judicature at Bombay. In Ganpat Jivaji v. The King-Emperor (( 1944) 47 Bom. L. Rptr. 365 (footnote)) leave to appeal on the facts had been granted ex parte by the Court of Appeal. The leading judgment was given by Chagla J., Lokur and Weston JJ., concurring. Chagla J. expressed the view that it was impossible on the construction of s. 411A to hold that the powers of the court were limited as were those of the Court of Criminal Appeal in England; that where an appeal on facts was before the court, the court was bound to dispose of it like any other appeal on facts, and that if the court came to the conclusion that the verdict of the jury was wrong they could not uphold it on the ground that it was not perverse or unreasonable. But the learned judge expressed the fear that the introduction of s, 411A, construed in the manner in which he felt bound to construe it, would reduce trial by jury in the High Court to a mockery, and he expressed some surprise that the legislature should have treated the verdict of a High Court jury based on the summing-up of a High Court judge as of less consequence than a verdict of a Mofussil jury. The question as to the construction of s. 411 was considered by another Full Bench of the Bombay High Court in Government of Bombay v. Inchya Fernandez (( 1945) 47 Bom. L. Rptr. 363.). The question as to the construction of s. 411 was considered by another Full Bench of the Bombay High Court in Government of Bombay v. Inchya Fernandez (( 1945) 47 Bom. L. Rptr. 363.). In that case the jury had returned a unanimous verdict of not guilty and the trial judge, Chagla J., had given a certificate authorizing an appeal on the facts. The leading judgment was given by Divatia J., Lokur and Weston JJ., the other members of the court, delivered separate but concurring judgments. Divatia J. expressed the view that although the powers of the court hearing an appeal on the facts under s. 411A were unfettered, the court was not bound to exercise its powers in full, and that it was entitled to deal with the appeal on grounds analogous to those on which the High Court acted when hearing a reference made under s. 307 of the Code and to interfere with the verdict of the jury only if satisfied that such verdict was perverse and unreasonable. The court held that there had been no failure in the summing-up, and that the verdict of the jury could not be regarded as either opposed to the evidence or manifestly wrong or unreasonable, and accordingly dismissed the appeal. The views of Chagla J. in the earlier case were treated as dicta only. That case has been followed in other cases in the High Court of Bombay and appears to be regarded as having settled the law on the subject. Their Lordships have not been referred to any decision of the High Court at Calcutta, which is the other High Court possessing original criminal jurisdiction. It will be observed that the High Court at Madras and the High Court at Bombay have both reached the conclusion that in an appeal on the facts under s. 411A, the court should only interfere with the verdict of the jury if it considers such verdict perverse or clearly Law Rep. 74 Ind. App. 132 ( 1946- 1947) Thiagaraja Bhagavathar V. King-Emperor 91 unreasonable, but they have reached such conclusion on quite different grounds. Their Lordships think that both courts, in their anxiety to prevent the introduction of a right of appeal under s. 411A from destroying the effective operation of trial by jury in the High Courts, have overlooked the important safeguard provided by the legislature against such risk. Their Lordships think that both courts, in their anxiety to prevent the introduction of a right of appeal under s. 411A from destroying the effective operation of trial by jury in the High Courts, have overlooked the important safeguard provided by the legislature against such risk. An appeal on a matter of fact can only be brought on a certificate of the trial judge or with the leave of the court of appeal. In view of the importance obviously attached throughout the Code to the verdict of juries, to the difficulty which always faces a court of appeal when called on to appreciate the evidence of witnesses whom it has not seen, to the risk of undermining the sense of responsibility of juries if their verdicts are subject to frequent appeal; and to the danger of depriving those tried in the High Court of the effective enjoyment of the right to trial by jury conferred on them by the Code, their Lordships think that the Indian legislature may well have assumed that leave to appeal on the facts from the verdict of a jury would not be given so long as such verdict appeared to be reasonable and supported by the evidence, and not to have been induced by an error in the summing-up. A judge hearing an application for leave to appeal on the facts has an absolute discretion to grant or withhold such leave, but it is discretion to be exercised judicially. He is bound to consider any special features in the particular case, but he cannot ignore the effect which the granting of leave to appeal without due discrimination may have on the whole S3stem of trial by jury in the High Court. Leave" once having been granted, however, the matter is at large, and the court of appeal must dispose of the appeal on the merits paying due regard, however, to the principles on which courts of appeal always act in such cases. Leave" once having been granted, however, the matter is at large, and the court of appeal must dispose of the appeal on the merits paying due regard, however, to the principles on which courts of appeal always act in such cases. Those principles were summarized by Lord Russell of Killowen, delivering the opinion of the Board, in Sheo Swamp v. King-Emperor (( 1934) L.R. 61 I.A. 398), where the Board was considering the powers which the High Courts possess in hearing an appeal against acquittal, in the following passage " But " in exercising the power conferred by the Code and before " reaching its conclusions upon fact, the High Court should and " will always give proper weight and consideration to such " matters as (1) the views of the trial judge as to the credibility " of the witnesses; (2) the presumption of innocence in favour " of the accused, a presumption certainly not weakened by the " fact that he has been acquitted at his trial; (3) the right of " the accused to the benefit of any doubt; and (4) the slowness " of an appellate court in disturbing a finding of fact arrived " at by a judge who had the advantage of seeing the witnesses " (Ibid. 404.). Only slight modifications in that passage are necessary to adapt it to an appeal against the verdict of a jury. It is, of course, true that the court of appeal does not know what view the jury took of the evidence of any particular witness, but it knows the view which the jury took of the evidence as a whole. In the passage above quoted for the words "the views of the" trial judge as to the credibility of the witnesses must be substituted the words " the views of the jury implicit in their " verdict as to the credibility of the witnesses.” If, attaching due weight to those matters, the court hearing an appeal on the facts under s. 411A comes to the conclusion that the verdict of the jury was wrong, it is bound to allow the appeal and reverse the verdict. It has no right to uphold the verdict merely on the ground that it is not perverse or unreasonable. So to do would be to deprive the appellant of the right of appeal which the statute gives to him. It has no right to uphold the verdict merely on the ground that it is not perverse or unreasonable. So to do would be to deprive the appellant of the right of appeal which the statute gives to him. In their Lordships opinion the High Court of Madras in the judgment under appeal approached the case from the wrong angle. It is always dangerous to construe an Indian Act by reference to an English Act however closely the language of the two Acts may approximate, and this is particularly true of Acts dealing with such a matter as trial by jury, in which, as pointed out by the Board in Abdul Rahim v. King-Emperor (( 1946) L. R. 73 I. A. 77.), the attitude of the legislatures in the two countries has been dissimilar in many respects. The elision in s. 411A of s. 418 and s.423, sub-s.2, which would have prevented an appeal on facts, and the omission of any limitations on the powers of the court similar to those contained in s. 4, sub-s. 1, of the Law Rep. 74 Ind. App. 132 ( 1946- 1947) Thiagaraja Bhagavathar V. King-Emperor 92 English Act, make it clear, their Lordships think, that the Indian legislature was not minded to impose on the powers of the court of appeal in India any fetter similar to that imposed on the English Court of Criminal Appeal in dealing with the verdicts of juries. Referring to the Bombay cases, their Lordships are in agreement generally with the view of the law expressed by Chagla J. in Ganpat Jivajis case (47 Bom. L. Rptr. 365 (footnote).). Whether the fear expressed by the learned judge that the right of appeal given by s. 411A will reduce trial by jury in the High Courts to a mockery is right must depend on the manner in which the judges of the High Courts exercise the powers conferred on them by the section. If judges make a practice of giving leave to appeal on facts from the verdict of a jury which is not perverse or unreasonable on the ground that the judge himself does not agree with the verdict, or that he thinks that the court of appeal might take a different view of the evidence from that which appealed to the jury (as Chagla J. himself seems to have done in Inchya Fernandezs case (47 Bom. L. Rptr. 363.)) the result, no doubt, will be to deprive people tried in the High Court of the effective enjoyment of their right to trial by jury; but the remedy lies in the hands of the judges. Their Lordships are not in agreement with the views expressed in the case of Inchya Fernandez (47 Bom. L. Reptr. 363.). There is no analogy between the hearing of an appeal under s. 411A and the hearing of a reference under s. 307. As held by this Board in Ramanugrah Singh v. King-Emperor (( 1946) L. R. 73 I. A. 174.), the powers of the court on such a reference are conditioned by the terms of the section, which imposes a special code and is not concerned with appeals. The court hearing an appeal on the facts under s. 411A is in a similar position to a court hearing an appeal from the verdict of a jury under s. 449, or an appeal from the verdict of a jury which has resulted in the passing of a death sentence under ss. 374 and 418, sub-s. 2, in both of which cases an appeal lies on the facts. In the latter class of case it could hardly be suggested that the court would be justified in dismissing an appeal and confirming a sentence of death based on the verdict of a jury which the court thought wrong, though not perverse. As the High Court at Madras did not apply its mind to the question whether the verdict of the jury finding the appellants guilty was right or wrong, but considered only whether it was reasonable, their Lordships will humbly advise His Majesty that this appeal be allowed and the appeal of the appellants against their conviction on May 3, 1945, by the trial judge to the High Court of Judicature at Madras be remitted to that court to be disposed of according to law.