Research › Browse › Judgment

Allahabad High Court · body

1969 DIGILAW 312 (ALL)

Murtaza Ali v. State

1969-10-08

M.N.SHUKLA

body1969
ORDER M.N. Shukla, J. - The Applicant was convicted by a Magistrate First Class, Varanasi, u/s 41(5) of the Defence of India Rules and sentenced to one year's rigorous imprisonment and also u/s 29 of the Police Act and sentenced to one month's rigorous imprisonment and u/s 409 IPC and sentenced to a fine of Rs. 100/-, in default of payment of fine to undergo further rigorous imprisonment for one month. His conviction and sentences were affirmed in appeal by the Sessions Judge, Varanasi. Hence this revision. 2. The charge against the Applicant was that he being a constable and posted on duty in Company of V Battalion PAC, Ramnagar, Varanasi, incited the members of the PAC to abstain from PAG duties as they had not filled up the bond making it obligatory for them to serve as members of the PAC. The further charge was that being a police constable posted on duty in the aforesaid PAC Battalion he had committed wilful breach of the lawful orders of the Assistant Commandant of the Battalion by flouting the punishment, inasmuch as he absented himself from duty on 20-9-1965 and thereby committed an offence punishable u/s 29 of the Police Act. He was also charged with having withdrawn from his duty without permission or leave on 22-9-1965 and thereby made himself liable for punishment u/s 29 of the Police Act. There was also a charge against him that he had taken away certain articles belonging to the Police Department and had rendered himself liable for an offence u/s 409 IPC. 3. The accused did not say anything in his statement u/s 342 Code of Criminal Procedure but examined a witness in defence. 4. The trial court believed the prosecution evidence and convicted and sentenced the Applicant. 5. An appeal was filed on behalf of the Applicant by Sri. B.N. Upadhya, Advocate, on 23-10-1967. The appeal was admitted on the same date and the accused was also directed to be enlarged on bail by an order passed by the learned Sessions Judge on that very date. The order-sheet of the date showed that 1-12-1967 was fixed for hearing of the appeal and the file of the trial court was also directed to be requisitioned for the same date. On 1-12-1967 i.e. the date on which the appeal was fixed for hearing neither the Appellant nor his counsel was present. The order-sheet of the date showed that 1-12-1967 was fixed for hearing of the appeal and the file of the trial court was also directed to be requisitioned for the same date. On 1-12-1967 i.e. the date on which the appeal was fixed for hearing neither the Appellant nor his counsel was present. It appears that the learned Sessions Judge informed the Appellant's counsel and the latter made an endorsement on the order sheet: I have no instructions to argue and signed the same. The learned Sessions Judge then passed the following order: This appeal has been filed by Murtaza who has been convicted by the learned Magistrate for offences Under Sections 29, Police Act, 41(5) DIR 409, IPC. The Appellant is absent. Nothing has been shown as to how the learned Magistrate erred in fin ling him guilty. I have gone through the judgment and I agree with his finding. The appeal is, therefore, dismissed. 6. It has been contended by the learned Counsel for the Applicant that the judgment of the learned Sessions Judge was not a judgment in accordance with the provisions of Section 367 Code of Criminal Procedure and was in fact no judgment in the eyes of law. Hence, it was liable to be set aside. A perusal of the record indicates that this appeal was not dismissed 'in limine' and the appellate court did not exercise the power of summarily dismissing the appeal u/s 421(1) Code of Criminal Procedure. Since the appeal was admitted, the procedure provided by Sections 422 and 423 Code of Criminal Procedure had to be followed. u/s 422 Code of Criminal Procedure it is the duty of the appellate court to give notice of the date of the hearing of the appeal to the Appellant or his pleader. I am satisfied from the record that the Appellant's pleader was apprised of the date for which the hearing of the appeal was posted. His endorsement on the order-sheet on 1-12-1967 does not indicate and there is no other material to show that he had any grievance that he had no knowledge of the gate of the hearing of the appeal. His endorsement on the order-sheet on 1-12-1967 does not indicate and there is no other material to show that he had any grievance that he had no knowledge of the gate of the hearing of the appeal. As such, it is evident that the procedure contemplated by Section 422 Code of Criminal Procedure was observed in this case and the Appellant having absented himself and his counsel having reported no instructions', the court had ample jurisdiction to proceed with the case and the Appellant could not claim a right of being heard in appeal. Nevertheless, howsoever unjustified the pleader might have been in denying the benefit of his valuable assistance to the court in the disposal of the appeal, the court was not absolved of the duty of delivering a judgment in accordance with the provisions of Section 367 Code of Criminal Procedure. The essential requirement of those provisions is that the judgment must contain the point or points for determination, the decision thereon and the reasons for the decision. The usual cryptic order passed by the courts prone to take the line of least resistance in such a situation saying that they had perused the record and had found no reason to differ with the view of the court below fails to satisfy the requirements of Section 367 Code of Criminal Procedure. Even if it be not expedient to have a long or very elaborate judgment in such circumstances, at least the salient points for determination and reasons for arriving at certain conclusions must appear clearly in the body of the judgment, notwithstanding the absence of the Appellant or his counsel. The object of enacting Section 367 Code of Criminal Procedure appears to be that it should be apparent to the superior court as to what important point for decision arose in the case and the important steps by which certain conclusions were reached. In the absence of such material it would be well-nigh impossible for the superior court to test the correctness or legality of the order or judgment under challenge. Section 424 Code of Criminal Procedure makes the rule contained in Ch. XXVI as to the judgment of a Criminal Court of original jurisdiction applicable to the judgment of any appellate court other than a High Court. Section 424 Code of Criminal Procedure makes the rule contained in Ch. XXVI as to the judgment of a Criminal Court of original jurisdiction applicable to the judgment of any appellate court other than a High Court. Thus, the conclusion becomes irresistible that the judgment of the subordinate appellate court in criminal appeals must strictly conform to the provisions of Section 367 Code of Criminal Procedure. In my opinion this requirement cannot but be stretched to the extent that the judgment of the appellate court must be capable of being read as an independent judgment and not as being merely supplementary to the judgment of the trial court. In other words, on a perusal of the appellate court judgment the basic facts and essential points for determination must be intelligible without difficulty. As the short order passed by the learned Sessions Judge in this case does not disclose as to what essential points fell for determination and what were the main grounds for recording the findings impugned by the Appellant, I am of the opinion that it violates the provisions of Section 367 Code of Criminal Procedure read with Section 424 Code of Criminal Procedure. 7. I, therefore, allow this revision, set aside the order of the appellate court and remand the case to the appellate court for re-hearing of the appeal in accordance with law. The Applicant will be allowed to remain on bail on the same terms and conditions as he was up till now.