A. D. DESAI, B. J. DIVAN, J. ( 1 ) IN the present case the two accused persons were put up for trial on charges under sec. 302 I. P. C. and in the alternative under sec. 302 read with sec. 34 I. P. C. and also under sec. 37 (1) of the Bombay Police Act read with sec. 135 of the said Act. The learned trial Judge came to the conclusion that the accused persons were not guilty of the offences punishable under sec. 302 or in the alternative under sec. 302 read with sec. 34 I. P. C. and also that the accused persons were not guilty of the offence punishable under sec. 37 (1) read with sec. 135 of the Bombay Police Act. He however came to the conclusion that both the accused were guilty of the offence punishable under sec. 324 I. P. C. and sentenced each of the two accused to suffer R I. for three years and a fine of Rs. 100 for each of the offences punishable under sec. 324 I. P. C. The State of Gujarat appealed to the High Court against the orders of acquittal passed by the learned trial Judge under sec. 302 I. P. C. ( 2 ) HIS Lordship after discussing the evidence came to the conclusion that from the materials on record it clearly emerges that the two accused acted in the exercise of the right of private defence and would not be guilty in any manner for causing injuries to the three deceased. Under these circumstances it is clear that the appeal by the State of Gujarat against the order of acquittal acquitting the two accused of the offence punishable under sec. 302 I. P. C. in the alternative under sec. 302 read with sec. 34 I. P. C. and also under sec. 37 read with sec. 135 of the Bombay Police Act must fail. As the present accused did not appeal against the order of conviction and sentence passed by the Sessions Judge under sec. 324 I. P. C. a question arose whether the High Court is entitled to set aside the conviction and sentence passed against them. 37 read with sec. 135 of the Bombay Police Act must fail. As the present accused did not appeal against the order of conviction and sentence passed by the Sessions Judge under sec. 324 I. P. C. a question arose whether the High Court is entitled to set aside the conviction and sentence passed against them. DIVAN J. The reasoning which has appealed to U5 while disposing of this appeal would necessarily lead to the conclusion that the learned Sessions Judge with respect to him was in error when he convicted both the accused of the offences punishable under sec. 324 I. P. C. and sentenced them to three years R. I. and a fine of Rs. 100/in respect of the three different offences connected with the deaths of Bachu Batuk and Kanji; and once we hold that the right of private defence extended to the causing of death it would necessarily follow that in the light of the Chapter of General Exceptions neither of the two accused would be guilty of any offence whatsoever. The question then arises as to what should be done in connection with the order of conviction and sentence passed by the learned Sessions Judge under sec. 324 I. P. C. It is true that there has been no appeal of the two accused against this order of conviction and sentence but we have to consider whether we should exercise the powers of superintendence vested in this Court under Article 227 of the Constitution or the powers under sec. 439 Cr. P. C. and in the exercise of those powers set aside the orders of conviction and sentence passed by the learned Sessions Judge under sec. 324 I. P. C. Mr. K. M. Chhaya the learned Honorary Assistant Government Pleader has asked for time to consider the position and therefore we adjourn this matter for a week in order to enable us to pass the final order after hearing him regarding this point. ( 3 ) FURTHER arguments were heard today (6-10-1966) in connection with the power of the High Court under Art. 227 of the Constitution or under sec. 439 Cr. P. C. to act in the present matter. It is true that under sec. 439 (5) Cr. ( 3 ) FURTHER arguments were heard today (6-10-1966) in connection with the power of the High Court under Art. 227 of the Constitution or under sec. 439 Cr. P. C. to act in the present matter. It is true that under sec. 439 (5) Cr. P. C. when an appeal lies and no appeal is brought no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Therefore the power under sec. 439 Cr. P. C. only operates to prevent a Revision Application being entertained at the instance of the accused persons they not having appealed against the orders of conviction and sentence under sec. 324 I P. C. But the point is whether the powers under sec. 439 (1) Cr. P. C. are in any way fettered by the bar created under sec. 439 (5) Cr. P. C. ( 4 ) IN Emperor v. Jamnadas Nathji 39 Bom. L. R. 82 a Division Bench of the Bombay High Court consisting of Broomfield and Sen JJ. held that under sec. 439 (5) Cr. P. C. where a party who could have appealed has not appealed no application by him in revision will be entertained by the High Court; but the Division Bench held that the powers of superintendence under sec. 107 of the Government of India Act 1915 are not ordinarily meant to be exercised where no power of revision or interference exists under the Criminal Procedure Code. Such power ought to be exercised only in rare cases where an obvious miscarriage of justice cannot otherwise be prevented. It is not intended to be invoked in order to get round any of the express provisions of the Criminal Procedure Code; and in that particular case the High Court exercised its power of superintendence to reverse the conviction which was wrong on the face of it. In the instant case we have come to the conclusion on the evidence on the record of this case that the two accused persons had acted in the exercise of their right of private defence and had inflicted injuries on Kanji Devshi Batuk Jiva and Bachu Shardul causing the deaths of these three individuals and we hold that the right of private defence extended even to inflicting of injuries resulting irs the deaths of those three individuals. It is therefore clear that on those findings the conviction of accused Nos. 1 and 2 in respect of the offences under sec. 324 I. P. C. and the order of sentence passed by the learned trial Judge in respect of those offences also cannot be allowed to stand. Under sec. 439 Cr. P. C. the High Court can suo motu take cognizance of a matter which comes to its knowledge and after hearing the Government Pleader can set aside an order of conviction if it feels that in view of the findings arrived at by it the order of conviction cannot be allowed to stand. ( 5 ) IF any authority were needed for the above proposition we may point out that in Emperor v. Panchakshram A. I. R. 1938 Madras 723 Horwill J. of the Madras High Court held as follows:-IN an appeal against acquittal the accused is entitled to ask the Court to consider all the evidence before it and all the possible grounds which may be raised against the conviction. ( 6 ) WHERE an accused is acquitted under sec. 304 I. P. C. but convicted under sec. 335 and the Crown appeals against the acquittal under sec. 304 the accused is entitled to argue on the facts of the case to show that he has not committed an offence under any section of the I. P. C. and although the acceptance of those arguments may not automatically set aside the conviction under sec. 335 I. P. C. yet if the Court were satisfied that no offence was committed it would undoubtedly exercise suo motu its powers under sec. 439 (1) Criminal P. C. and set aside the conviction. ( 7 ) THIS decision of the Madras High Court was followed by a Division Bench of the Nagpur High Court consisting of Mangalmurti and Bhatt JJ. in State Government v. Sheodayal A. I. R. 1956 Nagpur 8. There it was held as follows:-IN an appeal by the Crown against his acquittal on the charge for a major offence the High Court has power under sec. 439 (1) to acquit the accused where the facts found are incompatible with his guilt even for the minor offence. In this connection the powers of the High Court under sub-sec. (1) of Sec 439 are not trammeled by sub-sec. 439 (1) to acquit the accused where the facts found are incompatible with his guilt even for the minor offence. In this connection the powers of the High Court under sub-sec. (1) of Sec 439 are not trammeled by sub-sec. (5) which only negatives the right of the accused to come up in revision when he could have preferred an appeal. ( 8 ) IT was urged before us on behalf of the Government that in the instant case we are not dealing with an appeal against conviction by one of the accused persons but that we are dealing with an appeal against acquittal filed by the State Government under sec. 417 Cr. P. C. and relying upon the observations of Gajendragadkar J. (as he then was) in State of Andhra Pradesh v. T. Narayana A. I. R. 1962 S. C. 240 it was urged that the High Court should exercise only the powers which are specifically referred to in sec. 423 Cr. P. C. when disposing of the appeal against acquittal. It is true that if we were seeking to exercise the power to set aside the conviction under sec. 324 I. P. C. and the sentence passed in respect of that offence purely under sec. 423 Cr. P. C. we could never have done so and we could never have in deciding the appeal against acquittal sought in any manner to set aside the conviction of an accused person under sec. 324 I. P. C. but we have made it clear to the learned Honorary Assistant Government Pleader that we want to exercise our power under sec. 439 (1) Cr. P. C. suo motu because we feel that the facts found by us are incompatible with the guilt of the accused even as regards the minor offence punishable under sec. 324 I. P. C. In our opinion if this convictions of the two accused persons under sec. 324 I. P. C. and the orders of sentence passed in that respect were allowed to remain the conscience of the Court would be shocked and a clear miscarriage of justice would be allowed to be perpetuated merely on the technical ground that the accused had not appealed. 324 I. P. C. and the orders of sentence passed in that respect were allowed to remain the conscience of the Court would be shocked and a clear miscarriage of justice would be allowed to be perpetuated merely on the technical ground that the accused had not appealed. On the facts found by us there was a clear right of private defence available to the accused and in the light of that finding it is also clear that they were not guilty of any offence whatsoever in respect of the injuries they inflicted on the three deceased persons. It is not necessary for us in view of the clear powers available to the High Court under sec. 439 (1) Cr. P. C. to resort to the extraordinary powers under Article 227 of the Constitution and we therefore do not propose to exercise the powers under Article 227 of the Constitution but confine ourselves to the power under sec. 439 (1) Cr. P. C. We wish to make it clear that for the exercise of our powers while disposing of an appeal of the State against acquittal is a separate though cognate and allied proceeding. Under sec. 439 Cr. P. C. it is not necessary in the instant case that a separate notice should have been issued and a separate number of the proceedings under sec. 439 Cr. P. C. should have been given. As far back as 1900 it was held by the Calcutta High Court in Broja Rakhal Mozumdar v. Empress V Calcutta Weekly Notes 330 by a Division Bench consisting of Ameer Ali and Stevens JJ. that the High Court has power under sec. 439 Cr. P. C. in a proper case to deal with the case of accused persons not appealing against their conviction while considering and trying the appeal preferred by some other persons and clause (S) of the section does not in any way affect the jurisdiction vested in the High Court to deal with their case. 439 Cr. P. C. in a proper case to deal with the case of accused persons not appealing against their conviction while considering and trying the appeal preferred by some other persons and clause (S) of the section does not in any way affect the jurisdiction vested in the High Court to deal with their case. In our opinion the fact that the High Courts attention is drawn to the plight of the accused persons who have not appealed against the order of conviction and sentence while disposing of an appeal against acquittal and the fact that the High Courts attention is drawn to such plight while disposing of an appeal against the convictions and sentence by some of their co-accused persons makes no difference at all. ( 9 ) THE learned Honorary Assistant Government Pleader relied upon the decision of the Mysore High Court in State v. Hanamant Nagappa A. I. R. 1965 Mysore 150. In that case what happened was that there was a charge under sec. 302 I. P. C. before the Sessions Court and the learned Sessions Judge convicted the accused only under sec. 304 I. P. C. Therefore there was an acquittal of the accused on the charge under sec. 302 I. P. C. and in the light of those facts there was an appeal by the State Government against the order of acquittal on the charge under sec. 302 I. P. C. The learned Judges of the Mysore High Court found on facts that the offence under sec. 302 was made out and they set aside the order passed by the learned Sessions Judge and convicted the accused under sec. 302 I. P. C and sentenced him under that section. While allowing the appeal against acquittal the order of conviction under sec. 304 I. P. C. had necessarily to be set aside. We have gone through the judgment of the Mysore High Court and we find no discussion in that judgment regarding the powers of the High Court under sec. 439 Cr. P. C. There the sole question was whether under sec. 423 (1) (a) Cr. P. C. the accused would be entitled to advance any arguments against his conviction under sec. 304 I. P. C. inasmuch as he had not preferred an appeal against his conviction under sec. 439 Cr. P. C. There the sole question was whether under sec. 423 (1) (a) Cr. P. C. the accused would be entitled to advance any arguments against his conviction under sec. 304 I. P. C. inasmuch as he had not preferred an appeal against his conviction under sec. 304 I. P. C. but what we are concerned with is not the power under sec. 423 (1) (a) or (b) Cr. P. C. but the powers under sec 439 (1) Cr. P. C. even though there is no appeal by the accused persons themselves against the orders of conviction and sentence passed against them. ( 10 ) IN the light of the authorities which we have discussed above and particularly in the light of the decisions in V Calcutta Weekly Notes 330 A. I R. 1938 Madras 723 and A. I. R. 1956 Nagpur 8 we hold that the High Court has power under sec. 439 (1) Cr. P. C. to set aside in a proper case the order of conviction of a non-appealing accused when the High Court finds that the conviction is incompatible with the findings arrived at by it while passing the order disposing of the main matter before it. ( 11 ) THE result therefore is that in the exercise of the powers under sec. 439 (1) Cr. P. C. the orders of conviction and sentence passed by the trial Court against both the accused in respect of the offence under sec. 324 I. P. C are set aside. Fine if paid is ordered to be refunded to accused concerned. Both the accused to be set at liberty forthwith so far as this case is concerned. Conviction set aside. .