1965 (2) Cri LJ 817 ::1966 MadLJ(Cri) 94 ::1965 56 ITR 224 ::1965 (1) ITJ 455 ::1965 (1) SCJ 428 ::1966 (1) SCR 178

Supreme Court Of India

(From : Calcutta)

Hon'ble Judge(s): A. K. Sarkar, M. Hidayatullah, V. Ramaswami , JJJ

(A) Criminal P.C. (5 of 1898) , S.428, S.423, S.417— Appeal against acquittal - Appellate court has power to take additional evidence - There is no restriction on kind of evidence which may be received. The Code does not make difference between the ambit of an appeal from a conviction and that of an appeal from an order of acquittal except that in the former case the appeal is as of right and lies to Courts of different jurisdiction depending on the nature of sentence, the kind of trial and the court in which it was held, whereas an appeal in the latter case can only be made to the High Court by the State Government or by a complainant (where the case is started on a complaint) with the special leave of the High Court. Such appeals He on a matter of fact as well as a matter of law (except in trials by Jury). The procedure for dealing with the two kinds of appeals is identical. The Appellate Court's powers in disposing of the appeals, are in essence the same, though indicated separately in S. 423. Section 428 which occurs in Chapter XXXI which deals with appeals, speaks of any appeal under that Chapter. S. 428 clearly applies to appeals against acquittal under S. 417(3). If the trial already held is found to be unsatisfactory or leads to a failure, of justice, the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal ....