Banerji, J.

(1) This revision has been referred to the Full Bench in order to consider whether the appellate Court can, in exercise of its power under Section 423, Sub-section (1), Clause (b) of the Criminal P. C., alter the finding of the trial court so as to convert an acquittal into conviction.

(2) A few facts are necessary to be stated. There was an occurrence on 1-8-51 resulting in the petitioners being charged lor assault and noting under Sections 323 and 147, Penal Code, respectively. The trying Magistrate convicted the petitioners under Section 323, Penal Code, and fined them Rs. 50/- each. He recorded an order of discharge under Section 147, Penal Code, on an erroneous view of the procedure. He should have acquitted them under that sec-Lion, and it will be assumed for the purpose of this case that the petitioners wore acquitted under Section 147, Penal Code. The petitioners then appealed. The appellate Court acquitted one appellant under Section 323, Penal Code, and maintained the conviction of three under the same section. As regards three others, they were acquitted under Section 323, Penal Code, but convicted under Section 147, Penal Code, under which section they had been acquitted by the trying Magistrate. The appellate Court, however, maintained the same sentence awarded by the Magistrate. The point taken up in revision is that the Court of appeal below had erred in law in convicting three of the petitioners under Section 147, Penal Code, of which they were acquitted by the trying Magistrate,

(3) The point involved for decision by this Bench has had a peculiar trend in the course of about 60 years. There have been innumerable decisions on the point involved recently, and it will not he of much profit to refer to them all. It may be pointed out that, of late, there has been a sharp division of opinion on the subject concerned and the cases fall into two groups, in strong opposition to each other. The earliest case is --Krishna Dhan v. Queen-Empress, 22 Cal 377 [LQ/CalHC/1894/104] (A), which was relied upon by a Division Bench of the Calcutta High Court in -- Queen-Empress v. Jebanulla, 23 Cal 975 [LQ/CalHC/1896/78] (B). This case, and not the earlier one, has often been quoted with either approval or disapproval in later decisions of several High Courts. It was followed by a Division Bench of the Madras High Court in Golla Hanamappa v. Emperor, 35 Mad 243 [LQ/MadHC/1911/149] (C). So far as our High Court is concerned, the earliest case reported is -- Dhanpat Singh v. Emperor, AIR 1917 Pat 625 (D), where Chapman, J. held that) the appellate Court had jurisdiction to reverse a finding of acquittal upon facts on which there was a conviction in the first Court under another provision of the law against which an appeal had been preferred. The learned Judge, in arriving at his conclusion, relied upon the case reported in 35 Mad 243 [LQ/MadHC/1911/149] (C), and two other cases. The point was again raised in the case of -- Mahangu Singh v. Emperor, AIR 1918 Pat 257 [LQ/PatHC/1917/423] (E), where their Lordships were of the opinion that the appellate Court convicting an appellant under a section of which he had been acquitted was not illegal. They accepted the proposition laid down in, 23 Cal 975 [LQ/CalHC/1896/78] (B), and extended the principle laid down by Chapman, J. in the case of AIR 1917 Pat 625 (D). In the earlier Patna case there was no controversy regarding the findings of fact. The appellant had been charged for criminal breach of trust for theft and under Section 29 of the Police Act. He was acquitted under Section 29, Police Act, but convicted under Sections 409 and 379 Penal Code. The learned Sessions Judge found the appellant guilty also under Section 29 of the Police Act and set aside the order of acquittal under that section. Chapman, J. found that the dishonest intention of the accused had not been proved. The question then remaining to be answered was whether the appellate court could record an order of conviction under Section 29 of the Police Act, of which the appellant had been acquitted by the trial Court. His Lordship realised the difficulty of the paint involved as, on the one hand, there was the general intention of the Code expressed in Section 417 that an acquittal should stand until appealed against by the Local Government and, on the other hand, there were the provisions of Clause (b) of Sub-section (1) of Section 423, Criminal P. C., which gave power to a Court of appeal to alter, a finding while maintaining the sentence. He preferred the cases which favour the view that Section 423 (1; (b) has a wider application and held as follows. "The conclusion, therefore, to which I come is, that the finding reversing the acquittal in this case being upon tacts upon which there was a conviction in the first Court under another provision of the law against which there was an appeal to the Sessions Judge, the Sessions Judge had power to come to a finding reversing the acquittal in this case." In his opinion, therefore when there was unanimity of both the Counts regarding the finding of fact, the order of acquittal passed by the trial Court could suitably be altered into one of conviction if the first Court had taken an erroneous view of the law.

(4) In the case of A. I. R 1918 Patna, 257 (E) their Lordships were not inclined to limit the principle within the narrow compass envisaged by Chapman, J. and also in the case of Ramesh Chandra v. Emperor, AIR 1914 Cal 456 (F) and stated:-

"We see no reason to limit the section in the way suggested upon the basis of these two cases. The learned Judges in these two cases were not required to go further than, they did, and there is nothing in their judgments to Suggest that they would not have been prepared to go further if necessary. The section as it stands empowers the Court to alter the finding, maintaining the sentence, and if it be conceded that a finding of acquittal may be altered to a conviction on a point of law, we can conceive no valid reason for limiting the word finding to a finding upon a point of law as distinct from a finding upon a point of fact."

In this case the accused were charged under Sections 147 and 323 Penal Code. They were acquitted under Section 147, but convicted under Section 32

3. On appeal to the Sessions Court, the learned Judge pointed out that the conviction on the charge under Section 323 could not be maintained, but there was evidence to show that the accused had formed themselves into an unlawful assembly. He therefore, altered the conviction under Section 323 to a conviction under Section 147, maintaining the sentences imposed under Section 32

3. In doing so, the appellate Court had disagreed with the findings of fact of the trial Court, but their Lordships held that it was permissible by the provisions of Section 42

3. Criminal P. C.

(5) In 35 Mad 243 [LQ/MadHC/1911/149] (C), the accused were charged for rioting under Section 148, Penal Code; one accused was charged under Section 302, Penal Code and the officers under Section 326, Penal Code. A few of the accused were also charged constructively under Section 149, Penal Code. The Sessions Judge in that case convicted all the accused under Section 325, and two of the accused under Section 326, Penal Code. Apparently, the Sessions Judge acquitted the accused of rioting as the evidence on that charge did not appeal to him. Their Lordships arrived at a different finding of fact. They did not be-lieve the evidence regarding the actual assaults, but found that the evidence was sufficient to prove that all the accused were members of an unlawful assembly and, therefore, guilty of rioting. It was argued on behalf of the appellants that their Lordships could not legally convict the appellants for being members of an unlawful assembly or noting or for being constructively guilty of the offences of causing hurt and grievous hurt as they had been acquitted of those charges. Their Lordships repelled this contention on the ground that Section 423(1)(b) conferred such power on the appellate Court and followed the proposition laid down in 23 Cal 975 [LQ/CalHC/1896/78] (B) and another later decision of the same High Court, namely, -- Satish Chandra Das v. Queen-Empress, 27 Cal 172 [LQ/CalHC/1899/125] (G), It was also contended in this Madras case that the provisions of Section 423(1)(b) of the Criminal P. C, entitled the appellate Court to convict an accused of an offence of which he is acquitted only in those cases falling under Sections 237 and 238 of the Criminal P. C. Sections 237 and 238 and Section 236 are exceptions to Section 233, Criminal P. C., which requires separate charges for distinct offences. According to Section 237, Criminal P. C., if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, and the accused is charged with one "offence, while it appears in evidence that he committed a different offence for which he might have been charged under Section 236, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Section 238, Criminal P. C. applies when the offence proved is included in the offence charged, that is, an accused can be convicted of a minor offence though he was not charged with it. Their Lordships of the Madras High Court, like their Lordships of our High Court deciding the case of AIR 1918 Pat 257 [LQ/PatHC/1917/423] (E), felt that they were not hampered by the provisions of Sections 237 and 238, Criminal P. C. and were not prepared to apply the qualifications to Section 42

3. They said:

"The finding which an appellate Court may alter under Section 423(b} may relate either to an offence with which the accused was apparently charged in the lower court or to one of which he might be convicted without a distinct charge. In cases not falling under Sections 237 and 238, Criminal P. C. no doubt the Appellate Court cannot convict a person of an offence with which he was not charged in the first Court but where he has been charged and the first Court has recorded a finding on the charge there is no reason for holding that the Appellate Court cannot alter the finding."

(6) In 1928 their Lordships, of the Judicial Committee decided the case of the appellant Kishan Singh reported in -- Kishan Singh v. Emperor, AIR 1928 PC 254 [LQ/PC/1928/68] (H). In this case an accused was charged for murder under Section 302, Penal Code, in the Sessions Court, but convicted under Section 304, Penal Code. The Local Government applied to the High Court in revision. The High Court, on a consideration of the evidence, held that there had been a miscarriage of justice by the trial court. Accordingly, they accepted the application, altered the conviction under Section 304 to one under Section 302, Penal Code, and sentenced the accused to death. In reversing the judgment of the High Court their Lordships held that, although the Sessions Court had not recorded a finding of acquittal, on the findings of fact arrived at by it, it amounted as such. They further held that the High Court could not alter a finding of acquittal into one of conviction and that, in doing so, they transgressed their jurisdiction under Section 439, Criminal P. C. Incidentally, it may be mentioned here that Section 439 Criminal P C., includes the powers conferred on a Court of appeal by Section 423 of the Code.

(7) The matter was thoroughly canvassed in another Division Bench decision of this Court, namely, "Ambika Thakur v. Emperor, AIR 1939 Pat 611 (I), and most of the cases including 23 Cal 975 [LQ/CalHC/1896/78] (B), AIR 1918 Pat 2-57 (E), and AIR 1928 PC 254 [LQ/PC/1928/68] (H), were cited. The question was whether the High Court in its combined appellate and revisional powers can convert an acquittal under Section 302, read with Section 149, Penal Code, into a conviction under Section 326/140, Penal Code, and then pass a sentence where none was passed by the lower Court. Their Lordships Khwaja Mohammad Nopr and Dhavle, JJ. did not think it desirable to refer the matter to a larger Bench as the point was relevantly unimportant in relation to that case and as they were not proposing to convict the appellants under Section 326/149, Penal Code. The matter was agitated again in the case of -- Emperor v. Barka Jetha Majhi, AIR 1942 Pat 190 [LQ/PatHC/1941/117] (I) and their Lordships referred" to the cases of 23 Cal 975 [LQ/CalHC/1896/78] (B), AIR 1917 pat 025 (D), AIR 1914 Cal 456 (F) and AIR 1928 PC 254 [LQ/PC/1928/68] (H). In this, case, namely, the case of Barka Jetha Majhi (J), the Sessions Court acquitted the accused for the offence under Section 302/149, Penal Code, on reasonings which appeared to their Lordships to be defective. Their Lordships held that, when the case did not raise any question on the finding of fact, they were entitled to set aside an order of acquittal as that was based upon an erroneous view of the law. Their Lordships accepted as good law the interpretation of Section 423 (1)(b), Criminal P. C., given in the case of Queen-Empress v. Jabanulla (B), and Dhanpat Singh v. Emperor (D). They also appeared to prefer the more extended interpretation of the same section as given in the cases of Mahangu Singh v. Emperor (E), and an unreported decision in -- Dhiro Mirdha v. Emperor, Criminal Appeal No. 20 of 1940 (Pat) (K), although they observed as follows:

"It is unnecessary to consider in this case the larger question whether the appellate Court has power to set aside the finding of fact of acquittal on one count while hearing an appeal against the conviction On the other charge. In the present case that question docs not arise.....".

The Privy Council case and an Allahabad High Court case, namely, -- Sarda Prasad v. Emperor, AIR 1937 All 240 (L), which gave a restricted scope to Section 423, Criminal P. C., were cited on behalf of the appellants, but no view appears to have been expressed on the propositions laid down in these two cases of our High Court cited before these two cases. The last case of our High Court cited before us is a decision by a single Judge, -- Panu Nayak v. Chintai Mallik", AIR 1948 Pat 435 [LQ/PatHC/1947/140] (M). His Lordship Ray J. was not inclined to favour the construction given by their Lordships in the case of Queen-Empress v. Jabanulla (BY. and preferred the dissentient view of Mulla and Hamilton, JJ. in the Full Bench case of the Allahabad High Court, -- Zamir Quasim v. Emperor, AIR 1944 All 137 [LQ/AllHC/1944/50 ;] (FB) (N). His Lordship at one place has observed that no case of the Patna High Court having a contrary view had been invited to his attention. This was rather unfortunate. Nor was the Privy Council case referred to as a result of which we have been deprived of an authoritative discussion, if I may be allowed to say so, of this and other decisions by the learned Judge.

(8) In the meantime, the later cases decided by the Calcutta High Court have been pointing to a different direction to that adopted in the earlier ones. In -- Nitya Gopal v. Emperor, AIR 1933 Cal 120 (O), their Lordships refused to give wider power under Section 423, Criminal P. C., without referring to any previous decision of that Court or of any other High Court. In -- Amalesh Chandra v. The State, AIR 1952 Cal 481 [LQ/CalHC/1951/363] (P), Harries C. J. sitting with Das, J., found it difficult to accept the proposition laid down in 22 Cal 377 [LQ/CalHC/1894/104] (A) which was relied on in the case of Queen-Empress v. Jabanulla (B), and another later Calcutta decision namely, -- Kamala Kanta v. Emperor, 41 Cal WN 1112 (Q), and observed:

"With very groat respect to this very experienced learned Judge (referring to Henderson, J.) 1 find it rather difficult to accept this proposition, why should it be only commonsense when once a conviction for causing grievous hurt had been set aside that the accused should be retried for murder upon which he had already been unanimously acquitted I venture to think that whatever it is, it certainly is not commonsense."

There was disagreement between two learned Judges of the Calcutta High Court On this point in Indra Kumar Nath v. The State, and the matter was referred to a third Judge and his decision has been reported in AIR 1954 Cal 375 [LQ/CalHC/1954/30] (R). His Lordship K. C. Das .Gupta, J. referred to the decisions, namely, 23 Cal 975 [LQ/CalHC/1896/78] (B), 41 Cal WN 1112 (Q) -- Nazumuddin v. Emperor, 40 Cal 163 [LQ/CalHC/1912/341] (S), 22 Cal 377 [LQ/CalHC/1894/104] (A), and observed as follows: "With the greatest respect to the learned Judges who decided the cases reported in 22 Cal 377 [LQ/CalHC/1894/104] (A), 23 Cal 975 [LQ/CalHC/1896/78] (B), 40 Cal 163 [LQ/CalHC/1912/341] (S) and 41 Cal WN 1112 (Q), I find it impossible to accept as correct the view that as soon as an appeal is filed from a conviction the whole case is reopened. The appeal from a conviction can reopen only the case as regards the charge on which the accused has been convicted. Why it should be thought that an appeal from a conviction reopens for consideration of the Court of Appeal even the case as regards which the accused has been acquitted and against which no party has moved the Court is difficult to understand. With the greatest respect I would also add that it is also not right to put a wider interpretation on the words merely for fear that some really guilty man may escape unless the wider interpretation that the filing of an appeal from a conviction reopens the entire prosecution case is allowed. It would be unfortunate, if in deciding on the interpretation, we allow our judgment to be influenced by a consideration of the results that would follow." He agreed with the observations made by Harries, C. J., in the case of AlR 1952 Cal 481 (P), and, after giving his own construction to the words "conviction, "finding" and "sentence" in Section 423 of the Criminal P. C., he said that all doubts in this matter were set at rest by the Privy Council deci-sion in AIR 1928 PC 254 [LQ/PC/1928/68] (H). and that it was hardly necessary to enter into a detailed discussion of the proper interpretation to be put on the question.

(9) For the sake of convenience, I may arrange here the cases which favour the restricted view or the unrestricted one on the point concerned. The cases favouring the unrestricted view are the following: 22 Cal 377 [LQ/CalHC/1894/104] (A); 23 Cal 975 [LQ/CalHC/1896/78] (B); 27 Cal 172 (G); -- Appanna v. Pethami Mahalakshmi, 34 Mad 545 (T); 35 Mad 243 [LQ/MadHC/1911/149] (C); AIR 1917 Pat 625 (D); AIR 1918 Pat 257 [LQ/PatHC/1917/423] (E); AIR 1942 Pat 190 [LQ/PatHC/1941/117] (J); 40 Cal 103 (S); and 41 Cal WN 1112 (Q); and the majority view of the Full Bench of the Allahabad High Court in AIR 1944 All 137 [LQ/AllHC/1944/50 ;] (FB) (N), overruling AIR 1937 All 240 (L). The. opposite view is expressed in the following decisions. AIR 1935 Cal 120 (Q); AIR 1952 Cal 481 [LQ/CalHC/1951/363] (P); AIR 1954 Cal 375 [LQ/CalHC/1954/30] (R); AIR 1348 Put 435 (M); and the dissentient view of Mulla and Hamilton, JJ. in AIR 1944 All 137 [LQ/AllHC/1944/50 ;] (FB) (N), supporting in substance the decision in AIR 3937 All 240 (L).

(10) The reasons for interpreting Section 423 (1) (b) in a wider sense are that an appeal from a conviction is not a second trial, but a mere continuation of the same and that the Legislature, in its wisdom, has not put any limitation to the tewas of this section; 23 Cal 975 [LQ/CalHC/1896/78] (B); that no injustice is done when the appellate Court alters a finding of acquittal by the trial court (see 35 Mad 243 [LQ/MadHC/1911/149] (C); and that, if the Legislature had intended to impose a restriction, as it has done by the provisions of Section 439 (4), Criminal P, C., on the power of an appellate Court while dealing with an appeal from a conviction, nothing would have been easier than to enact a similar provision in Sub-clause (2) of Clause (b) of Section 423, Criminal P. C., (see the observations of Iqbal Ahmad, C. J., in AIR 1944 All 137 [LQ/AllHC/1944/50 ;] at page 142 (FB) (N) ). The whole controversy has centred round the expression "alter the finding" in Section 423 (1) (b). According to some, the word "alter" has a very wide significance, whereas, according to others, it is far more limited than what is conveyed by the word "reverse". The majority view in the Full Bench case of the Allahabad High Court concedes that the word "alter" is a less radical expression than the word "reverse" and means "change in form", without changing the underlying character of the thing to be changed. The dissentient view in that case appears to be that the word "alter" has been used in juxtaposition with re verse" and this implies that alteration is a process of a much more limited scope than reversal. There is no visible difference between these two views about the meaning of the two words, "alter" and "reverse". Their scope given is, however, different inasmuch as, according to one view, conviction under One section in place of another is no more than a change in form so long the sentence is not enhanced whereas, according to the other, it is a change in the essentials. To me it appears that the word "reverse" conveys a sense of obliteration or effacement which happens when a conviction is set aside. The word "alter" has merely to do with some change, while maintaining the form, the shape or figure. It has the shade of meaning similar to the word "modify" and is opposed to such meanings constituted by such words like "reverse", "annul" or "rescind". I am not prepared to accept the majority view of the Allahabad High Court that, so long as the sentence is not enhanced, there is no change in the form although the order of acquittal has been substituted by an order of conviction.

(11) A correct answer to the point involved can only be obtained if the entire section is examined in a natural manner. The section relates to powers of an appellate Court in disposing of appeals. Now, there are three kinds of appeals contemplated by the Code; one is from an order of conviction, one is from an order of acquittal and one is from any other order, such as, orders passed under Section 107, Criminal P. C., etc., These three different types of appeals have respectively been provided for in Clauses (b), (a) and (c) of Sub-section (1) of Section 42

3. It is significant to note that, in case of an appeal from an order of acquittal, the law provides that the appellate Court may reverse such an order and direct that further enquiry be made or that the accused be retried or committed for trial, as the case may be, or find him guilty or pass sentence on him according to law. In this Clause (a) the, word used is only "reverse"; in Clause (b), which relates to an appeal from a conviction, it empowers the appellate Court to reverse, the finding and sentence and acquit or discharge the accused or order him to be tried by a Court of competent jurisdiction or to be committed for trial or to alter the finding, maintaining the sentence or, with or without altering the finding, reduce the sentence, or with or without such reduction and with or without altering the finding alter the nature of the sentence, but subject to the provisions of Section 106, sub-section (3), not so as to enhance the same. The word "reverse" is used when it is a question of setting aside the finding and sentence and acquitting or discharging the accused, whereas the word "alter" is used in Sub-clause (2) when there is no question of acquitting or discharging the accused, but when it is required to make a change in the finding or to reduce the sentence. Again, in Clause (c), in case of an appeal from any other order, the appellate Court is given power to alter or reverse such an order. Therefore, the intention of the Legislature could not have been to give the same significance to the words "reverse" and "alter".

(12) The position may be approached from another direction, as has been done by Ray, J. in AIR 1948 Pat 435 [LQ/PatHC/1947/140] at p. 437 (M). I am tempted to quote his language at page 437 which runs as follows :

"The words the finding and sentence in this part of the clause can have no reference to any other finding than one of conviction. This conclusion is reached not only because of the natural meaning to be attached to the words used but also because of the word conviction immediately preceding the words reverse the finding. The article the before the word finding has its significance in importing the definite meaning of finding of conviction to it. In this setting occur the words that follow, namely, alter the finding..... All the words put together are alter, the finding maintaining the sentence. The finding here cannot mean a finding to which no sentence is attached, Tt is clear that the finding and the sentence must go hand in hand, and the appellate Court is given the power to alter the finding but to maintain the sentence or reduce the same."

There can be no doubt that the use of the article the before the word "finding" in. Sub-clause (1) and before- the same word in Sub-clause (2) can have reference only to a case where sentence has been passed and not where there has been an acquittal. As pointed out by Ray, J., in the above-mentioned case, the finding and the sentence must go hand in hand, and, if one has to construe Sub-clause (2) to mean alter the finding of acquittal, it would, in the context of what has already been said, be completely meaningless. The use of the word "the" before the word "finding" in both the two sub-clauses is very important as, without the emphasis on this article, a construction may follow that the appellate Court has jurisdiction to alter the finding of acquittal, which docs not appear to be the intention of the Legislature. An Appeal is a continuation of a trial in a limited sense subject to the provisions of Chapter XXXI of the Criminal P. C., and the wordings used in this Chapter relating to appeals have to be construed strictly as a right of appeal is not a natural right and is created by statute only. Accordingly, it is difficult to lend oneself to the argument that the power to be exercised under Section 423, Criminal P. C., is an unlimited one subject to the restrictions regarding sentence. It is also difficult to follow the argument that there is no injustice in altering the finding of acquittal, as stated in 35 Mad 243 [LQ/MadHC/1911/149] , at p. 247 (C). when the contention of prejudice to the accused in overriding the provisions of Section 4(13, Criminal P. C., cannot possibly, be ignored. The majority view of the Full Bench of the Allahabad High Court was rather influenced, if I may be allowed to say so, by the absence of the words of limitation provided in Section 43

9. Sub-section (4), but it would be dangerous, in my opinion, to make use of this omission in order to construe the plain meaning of the section itself. Section 423 relates to the power of the appellate Court, including the High Court, in disposing of appeals, whereas Section 439 refers to power of revision of High Courts only. The two jurisdictions are separate, and it is only by Sub-section (1) of Section 439 that the High Court is vested with the exercise of the powers conferred on a Court of appeal by Section 423 and other sections. The exercise of such powers is in the discretion of the High Court, whereas exercise of discretion is not contemplated in Section 42

3. Nothing is more distinct and obvious than the provisions of these two sections when the Legislature, after conferring powers of a Court of appeal under Section 439, Clause (1), curtails the same in Clause (4) according to which a High Court cannot convert a finding of acquittal into one of conviction. None of the four grounds for recommending an unrestricted meaning of the words "alter the finding" appeals to me. It may be pointed out here that to give a wider application may sometimes result in an anomaly which can hardly be solved with reference to any section in the Code. This very anomaly was shown by Banerjee, J., delivering a separate judgment, in 23 Cal 975 [LQ/CalHC/1896/78] at p. 979 (B). I quote his words :

"It is possible to imagine cases in which this restriction may stand in the way of the Appellate Courts altering the finding. Thus, if an accused person is charged with having murdered A, and also with having caused grievous hurt to him, and is acquitted of the former offence but convicted of the latter and sentenced to seven years rigorous imprisonment by the first Court, the Appellate Court cannot, on the appeal of the accused, alter the finding into one of guilty of murder, because, as it cannot enhance the sentence, the result will be that a person convicted of murder, for which the only punishment is either death or transportation for life, will be punished merely with imprisonment for seven years -- a sentence which is not in accordance with law. That, however, is not the case here, and so we need not consider it further. But in a case like this, in which no such difficulty arises, I think the Appellate Court can, in an appeal from a conviction, alter the finding of the lower Court and find the appellant guilty of any offence of which he may have been acquitted by that Court."

His Lordship did not consider the effect of such an event as it did not touch the case before him, but the exigency can hardly be avoided when laying down a principle governing the power of an appellate Court. If an anomaly arises, it has to be resolved and cannot be referred for a decision in the future. The irregularity, as depicted by the example given, is itself a powerful argument against the view giving unlimited power in .reversing an order of acquittal.

(13) Fortunately, the instance anticipated, by Banerjee, J., arose in the case of AIR 1928 PC 254 [LQ/PC/1928/68] (II). There the accused was charged with an offence of murder under Section 302, Indian Penal Code, in the Sessions Court, but was convicted under Section 304, and sentenced to a term of imprisonment. The Local Government moved the High Court in revision, and the High Court, on finding that there bad been a miscarriage of justice, altered the conviction to one under Section 302, and sentenced the accused to death. Their Lordships of the Judicial Committee held that, although no formal order of acquittal was passed under Section 302, it amounted to an acquittal in respect of that charge and, as such, the High Court had no jurisdiction to alter the finding of acquittal into one of conviction. There is hardly any distinction between the facts given in the example set out by Banerjee, J. in "Queen-Empress v. Jabanulla (B), and the facts in Kishan Singhs case (H). In view of the finding of the Judicial Committee, it is difficult to reach the conclusion that an appellate Court exercising its power under Section 423(1)(b) can annul an order of acquittal passed by the trial Court on a charge outside the scope of SSL 237 and 238 of the Criminal P. C. The only logical conclusion that can be reached by the decision in Kishan Singhs case (H), is that, if an order of acquittal is Recorded, rightly or wrongly, by a trial Court, it can only be set aside and rescinded under Section 423(1)(a), that is, when there is an appeal, from an order of acquittal under Section 417, Criminal P. C. The power of appeal under Section 417, is not fettered by any limitation, and it is settled law now that an appeal can be preferred not only where the accused has been acquitted of all the charges, but also when the accused has been convicted of some charges and acquitted of others. Their Lordships representing the majority view of the Full Bench in the Allahabad High Court case were of the opinion that Kishan Singhs case (H), had no application in a matter involving consideration of Section 423 as the case before their Lordships of the Judicial Committee was one under Section 439 and as they refrained from expressing any view in regard to the power under Section 423(1)(b), Criminal P. C. The implication of the view expressed by their Lordships of the judicial Committee can hardly be overlooked by the result that followed from the decision. The accused was charged with a major offence, but convicted of a minor one. Their Lordships proceeded on the assumption that there dad been an acquittal for the major offence and held that that order could not be interfered with by the High Court while exercising powers under

3. 43

9. Criminal P. C. Their Lordships were, certainly, aware of the power of a High Court under Section 439 which included the power exercised under Section 423 subject to Sub-section (4) and, in holding that the High Court had no jurisdiction in altering a finding of acquittal into one of conviction, must have taken into consideration the powers of an appellate Court under Section 423 (1)(b) of Criminal P. C In that view of the case, I think that the Privy Council decision applies to the present case and that a wider interpretation of Section 423(1)(b) is not warranted. It is different, however, when the Court of appeal alters an order of acquittal under Section 423(1)(b) in cases falling under Sections 237 and 238, Criminal P. C. When there is no dispute relating to the facts, that is, relating to the act or series of acts which constitute the offences and when the case falls within the scope, of these sections, it is within the jurisdiction of an appellate Court to convict an accused under a section of which he had been acquitted. In the true sense, such an order is not one or reversing an order of acquittal, but one of modifying it, because the trial Court had proceeded on an erroneous view of the law.

(14) Accordingly, the decision in AIR 1918 Pat 257 [LQ/PatHC/1917/423] (E), is overruled and the observations made in this; context in the case of AIR 1942 Pat 190 [LQ/PatHC/1941/117] (1), are held not to represent the correct state of law. The decision in AIR 1948 Pat, 435 (M), is approved and I hold that the case of AIR 1917 Pat 625 (D), was rightly decided on its own facts, independent of the reliance on the case re-ported in 35 Mad 243 [LQ/MadHC/1911/149] (C), which has not if I may say so with respect, correctly decided the point. The point referred to the Full Bench is answered in this way that in exercise of the power under Section 423(1)(b), Criminal P. C., the appellate Court cannot alter the finding of the trial Court so as to convert an acquittal into conviction in cases not falling under Sections 237 and 238, Criminal P. C.

(15) In the circumstances, the order of the appellate Court convicting the petitioners, Bilo, Sakaldeo and Jhari under Section 147, Indian Penal Code, of which they had been acquitted by the trial Court, cannot stand and is set aside. Their fines, if paid, should be refunded. The conviction of the remaining petitioners under Section 323, Penal Code, which has been upheld by the Court of appeal, will stand as there is no error of law pointed out to us with regard to their cases.