RAMESH NANU v. STATE — 1975 DIGILAW 113 (GUJ)

J. M. SHETH, J. ( 1 ) THIS revision petition is filed by the original accused against the order passed by the learned City Sessions Judge Ahmedabad City in Criminal Appeal No. 52 of 1975 dismissing the appeal filed by the petitioner against the order of conviction and sentence recorded against him by the learned Metropolitan Magistrate 11 Court Ahmedabad dated 10 April 1975 in Criminal Case No. 1444 of 1974. He has been convicted for an offence punishable under sec. 379 of the Indian Penal Code and sentenced to suffer six months rigorous imprisonment and to pay a fine of Rs. 200. 00and in default of payment of fine to undergo one months further rigorous imprisonment. The appeal was admitted by the Sessions Court on 29-4-1975 and the impugned order has been passed on 20-8-1975. The order reads: neither the appellant nor his Advocate present. Mr. G. S. Bhatt the learned Additional Public Prosecutor for opponent No. 2 State present. Rest absent. Appeal dismissed. Bail to be cancelled. Accused to surrender. ( 2 ) MR. R. G. Chhara appearing for the petitioner has contended that this order of dismissal of the appeal is not in compliance with the provisions of sec. 386 of the Code of Criminal Procedure 1973 (which will be hereinafter referred to as the new Code) and consequently this order cannot be sustained in law. [after quoting secs. 384 385 and 386 of the Code of Criminal Procedure 1973 and the corresponding provision secs. 421 422 and 423 of the old Code His Lordship further observed:] ( 3 ) IT is an admitted position that the appeal was not summarily dismissed as contemplated under sec 421 of old Code corresponding to which is the provision in the new Code with which we are concerned viz. sec. 384. The appeal having not been dismissed summarily as contemplated by sec. 384 of the new Code the Court has to follow the procedure referred to in sec. 385 of the new Code. Sub-sec. (2) of it which is material for our purposes reads; (2) The appellate Court shall then send for the record of the case if such record is not already available in that Court and hear the parties. It is thus evident that after the appeal is once admitted and not summarily dismissed that procedure has got to be followed. Sub-sec. (2) of it which is material for our purposes reads; (2) The appellate Court shall then send for the record of the case if such record is not already available in that Court and hear the parties. It is thus evident that after the appeal is once admitted and not summarily dismissed that procedure has got to be followed. Sec. 386 of the new Code deals with the powers of the appellate Court. The wording of that section clearly indicates that a duty is cast upon the appellate Court to peruse the record and hear appellant or his pleader if he appears and the public Prosecutor if he appears and in case of an appeal under sec. 377 or sec. 378 the accused if he appears thereafter the appellate Court if it considers that there is no sufficient ground for interfering dismiss the appeal or may use the powers referred to in clauses (a) (b) (c) etc. It is thus evident that even in case the appellant or his Advocate does not appear after the appeal is admitted the appellate Court is bound to peruse the record and decide the appeal on merits. This appeal cannot be dismissed for default as in the case of civil appeal. ( 4 ) UNDER the old Code similar question arose before the Supreme Court in SHYAM DEO PANDEY V. THE STATE OF BIHAR AIR 1971 SUPREME COURT 1606. The Supreme Court had to consider the provisions of secs. 421 422 and 423 of the old Code which have been already quoted and which are substantially the same as secs. 384 385 and 386 of the new Code. After referring to those provisions the Supreme Court has made the following instructive observations at page 1611:. . . . We have referred to the above decisions to show that though a summary rejection by an appellate Court under sec. 421 may not be violative of the section nevertheless when an arguable or substantial question arises for consideration the appellate Court in its order should indicate its views on such point. If the position is as indicated above that even under sec. 421 which contemplates dismissal of an appeal summarily under sec. 423 in our opinion a very rigorous test must be applied to find out whether the appellate Court has complied with the provisions contained therein. If the position is as indicated above that even under sec. 421 which contemplates dismissal of an appeal summarily under sec. 423 in our opinion a very rigorous test must be applied to find out whether the appellate Court has complied with the provisions contained therein. There is no emphasis on the perusal of the record in sec. 421 whereas under sec. 423 one of the essential requirement is that the appellate Court should peruse the record. There cannot be any controversy that sec. 423 applies to cases in which appeals have been presented and admitted. Though sec. 423 does not provide any limitation on the power of the appellate Court that it is incompe tent to dispose of the appeal if the appellant or his pleader is not present nevertheless there is a limitation. That limitation which is provided by the section is that the appellate Court before disposing of the appeal must peruse the record. No doubt if the appellant or his pleader is present he must be heard. Similarly if the public prosecutor is present he too must be heard. The legislature in section 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing the appellant or any one on his behalf or the public rosecutor. The expression `after perusing such record in the section is in our opinion a condition precedent to a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the said section. The powers which the appellate Court in criminal appeals possesses are depicted in sec. 423. It has power not only to dismiss the appeal but also pass any one of the orders enumerat ed in clauses (a) (b) (c) and (d) and sub-sec. (1-A ). These provisions show the enormous powers which the appellate Court possesses in regard to a criminal appeal. These powers it cannot be gainsaid are very vast. Any one of the orders mentioned above could be passed by the appellate Court whether the appeal is disposed of on hearing or without hearing the appellant or his pleader. These provisions in our opinion clearly indicate the nature of a judgment or order that is expected of the appellate Court in its judgement. It is in this context that the expression after perusing such record assumes great importance. Absence of those words in sec. These provisions in our opinion clearly indicate the nature of a judgment or order that is expected of the appellate Court in its judgement. It is in this context that the expression after perusing such record assumes great importance. Absence of those words in sec. 421 brings out in bold contrast the difference in the nature of jurisdiction exer cised under the two sections. It is further observed in para 20: it is not necessary to deal exhaustively with the connotation of the expression `after perusing such record occurring in sec. 423 (1 ). That will depend upon the nature of the order or judgment appealed against as well as the point or points that are taken before the appellate Court. But one thing is clear. There must be a clear indication in the judgment or order of the appellate Court that it has applied its judicial mind to the particular appeal with which it was dealing. Such an indication will be available when the appellate Court has considered the material on record which means not only the judgment. It and petition of appeal but also the other relevant materials. The appellate Court is bound to have looked into the judgment of the lower Court appealed against. The petition of appeal must have also been looked into to know the nature of the attack that is made against the judgment. There will be other materials on record and they will have to be perused by the appellate Court. The nature of such perusal to be indicated in the appellate judgment may also differ under different circumstances. ( 5 ) APPLYING the above tests I find that the order passed by the learned Sessions Judge does not satisfy the above requirement nt. There is no indication in the order that it was passed on perusing the record. Admittedly the order does not state that the Court has perused the record meaning thereby the record sent for by it. It clearly appears that the order has been passed without perusing the record on the ground that the petitioner or his Advocate is absent. There is no indication whatsoever in the judgment or or order that there was application of judicial mind. The order passed by the learned sessions Judge therefore cannot be sustained in law. ( 6 ) REVISION petition is allowed. There is no indication whatsoever in the judgment or or order that there was application of judicial mind. The order passed by the learned sessions Judge therefore cannot be sustained in law. ( 6 ) REVISION petition is allowed. The order of dismissal of Criminal Appeal No. 52 of 1975 is set aside and the matter is remanded to the learned City Sessions Judge Ahmedabad for disposing of the appeal in accordance with law Petitioner is directed to remain present in that Court on 6th October 1975 Rule is made absolute. .