JUDGMENT 1. The above numbered two revisions have been filed by the accused persons against the judgment dated 31-1-78 of the learned Addl. Sessions Judge, Dausa (Camp-Court at Jaipur) under which the learned Judge dismissed the appeal on the ground that it was time barred, because the memo of appeal was not accompanied by a certified copy of the judgment of the trial Court. 2. The twenty accused-petitioners along with five others, in all 25, were tried by the learned Addl. Munsif Magistrate (I), Jaipur District, Jaipur for offence under sections 147, 447, 379 and 149, I. P. C. The facts on which the accused persons were tried are, that one Bhaktilal lodged a report (Ex. P. 13) on 24-10-68 before the Additional Superintendent of Police, Jaipur where in a case was set up that the fields khasra No. 68/69 and 276 situated in Goliabas were of the khatedari of one Govinda, and from said Govinda, he (Bhaktilal) and his brother had purchased the fields on April 1, 1968 for a consideration of Rs. 18,000/- under a registered sale deed, and since then were in possession of the fields, and had sown the crop of Bajra, Moong and Choura, which were almost ready. But on October 23, 1968 when he went to his fields, he saw that the accused-petitioners along with others were cutting and taking away his 'Pala', (natural produce). The Police registered a case, and after investigation a negative report, which in this part of the country is known as Final Report, was lodged. Bhaktilal filed a protest petition, and the learned Magistrate took coganizance of the offences mentioned above against the accused petitioners and others. After trial, the accused- petitioners were convicted under section 147, 447 and 379/149, I. P. C. Under the first count, each of the accused was sentenced to undergo one month's rigorous imprisonment and under the second count also to one month's simple imprisonment, and under the last and third count to two month's simple imprisonment. The sentences under all the counts were ordered to run concurrently. 3. The judgment of the Magistrate was pronounced on March 5, 1974. The accused-petitioners preferred two appeals before the learned Sessions Judge. Jaipur District, Jaipur, one by Hanuman accused-petitioner and the other by other accused petitioners. The sentences under all the counts were ordered to run concurrently. 3. The judgment of the Magistrate was pronounced on March 5, 1974. The accused-petitioners preferred two appeals before the learned Sessions Judge. Jaipur District, Jaipur, one by Hanuman accused-petitioner and the other by other accused petitioners. The appeal of Hanuman was presented on March 6, 1974, i.e., on the next day of the judgment of the learned Magistrate, and the appeal of other accused persons was presented on March 5, 1974, i.e.. on the day of the judgment itself. But the memo of appeals in both the cases was not accompanied by a copy or a certified copy of the judgment of the trial Court. Along with the appeals, applications for suspension of sentences were filed, The Sentences were suspended, but the petitioners were directed to file immediately certified copy of the judgment of the trial Court. It appears that the certified copy of the judgment of the trial Court was not filed in either of the appeals preferred before the learned Sessions-Judge, which appeals were later on transferred to the learned Additional Sessions Judge, Dausa (Camp Jaipur). Appeal No. 14/77 preferred by Hanuman petitioner was ordered to be tagged with the other appeal No. 40/74 preferred by the other accused-petitioners. The order of the Court that certified copy of the judgment should be filed immediately was not complied with. In Criminal Appeal No. 40/74 it was again ordered on November 25, 1974 by the learned Sessions Judge that the appellants are directed to file certified copy of the judgment of the trial court immediately. The case was adjourned for arguments and the record of the case had been re-questioned earlier. It appears that a preliminary objection was raised before the learned Additional Sessions Judge that the appeal could not be entertained as the memo of appeal was not accompanied by a certified copy of the judgment of the trial Court, and the certified copy was not filed inspite of the orders of the Court. The learned Additional Sessions Judge holding that the presentation of the appeal without a certified copy was not in accordance with law and the appeals were time barred dismissed the same. 4. Mr. The learned Additional Sessions Judge holding that the presentation of the appeal without a certified copy was not in accordance with law and the appeals were time barred dismissed the same. 4. Mr. Dhankar learned counsel for the petitioners has contended that once the appeal had been entertained and the sentence awarded by the trial court had been suspended, it can be said that the appellate court had impliedly though not explicitly dispensed with the filing of the certified copy of the judgment of the trial court, and as such at the time of hearing the appeal could not have dismissed the same being time barred. He further contends that even if a certified copy of the judgment of the trial court is not filed along with the memo of appeal, the appeal cannot be dismissed and has to be disposed of on merits, more so when the record has been sent for and the original judgment of the trial court is before the appellate Court. Lastly, he contends that in a case of the present nature it was the duty of the Magistrate to have considered as to whether benefit of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act) should be extended to the accused or not. The appellate court should have also taken this into consideration. Mr. Purohit, learned Advocate for the complainant, who is supported by the learned Public-Prosecutor, on the other hand contends that it was a requirement of law that the memo of appeal should have been accompanied by a certified copy of the judgment of the trial Court, and if it is not so accompanied. then there is no proper presentation of the appeal unless the court in exercise of its powers dispensed with the production of the certified copy. He submits that the appeal has been rightly dismissed as time-barred. According to Mr. Purohit, the court only ordered that the appellant should immediately furnish a certified copy of the judgment, and its production was never dispensed with. It is also contended that the accused persons were not present at the time when the learned Addl. Sessions Judge pronounced the judgment and dismissed the Appeals. According to Mr. Purohit, the court only ordered that the appellant should immediately furnish a certified copy of the judgment, and its production was never dispensed with. It is also contended that the accused persons were not present at the time when the learned Addl. Sessions Judge pronounced the judgment and dismissed the Appeals. They also did not surrender and secured bail orders from this Court against the provisions of the High Court Rules, and as such looking to the conduct of the accused persons, even if the case be such which should be dealt with under Section 360, Cr P.C., or under the Act, this Court should not grant indulgence to the accused-petitioners. 5. The first question, therefore, which arises for consideration before me is, as to whether the memo of appeal should be accompanied by a certified copy of the judgment of the trial Court, and if it is not so accompanied, what is its effect ? 6. There is no dispute that along with the memo of appeal certified copy of the judgment was not filed. There is also no dispute that when the court entertained the appeals and suspended the sentences awarded by the trial court it had specifically ordered that the appellant should produce certified copy of the judgment of the trial Court immediately, as already stated earlier, on November 25, 1974. Again the court passed similar orders in Criminal Appeal No. 40/74. But the order of the Court was not complied with and it was only on January 10, 1978 when the arguments in the appeal commenced, and the case was adjoined, that an application was filed along with the certified copy of the judgment of the trial Court. As the appeals were filed in March, 1974 when the Code of Criminal Procedure, 1898 was in force it will be proper to make a reference to the relevant section of the Code of Criminal procedure, as it stood then. Section 419, Cr.P.C. (old) reads as under:- "419. Petition of appeal. As the appeals were filed in March, 1974 when the Code of Criminal Procedure, 1898 was in force it will be proper to make a reference to the relevant section of the Code of Criminal procedure, as it stood then. Section 419, Cr.P.C. (old) reads as under:- "419. Petition of appeal. - Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367. 7. In (1) State of Uttar Pradesh V. C. Tobit and others AIR 1958 SC 414 , the facts were that on trial the accused persons were acquitted on July 24, 1953 by the Temporary Sessions Judge, Gorakhpur. The State of Uttar Pradesh intended to prefer an appeal to the High Court against acquittal of the accused persons. Under Article 157 of the India Limitation Act, an appeal under the Code of Criminal Procedure from an order of acquittal was required to be filed within six months from the date of the order appealed from. The period of limitation for appeal from the order of acquittal thus expired on January 24, 1954. It was a Sunday, and thus the Deputy Government Advocate on 25-1-54 filed a petition of appeal on behalf of the State. A plain copy of the judgment sought to be appealed from was filed with the petition. A note was immediately made in the High Court Office that the copy of the judgment filed along with the petition of appeal did not appear to be a certified copy. The judicial record of the case was requisitioned and had been received by the High Court. An application for a certified copy of the judgment of the trial court was made on behalf of the State thereafter on February 12, 1954. The certified copy was received by the Deputy Government Advocate on February 23, 1954 and it was presented to the High Court on February 25, 1954. An application for a certified copy of the judgment of the trial court was made on behalf of the State thereafter on February 12, 1954. The certified copy was received by the Deputy Government Advocate on February 23, 1954 and it was presented to the High Court on February 25, 1954. A Judge of the High Court made an order that the certified copy be accepted and granted time to the appellant for making an application under section 5 of the Limitation Act for condoning the delay in filing the certified copy. The application of condonation was accordingly filed. The application was ordered to be laid before a Division Bench for necessary orders. The Division-Bench by its order delivered on December 7, 1954 took the view that no case had been made out for extending the period of limitation under section 5 of the Limitation Act and dismissed the application. They, however, differed on the question as to whether the filing of a plain copy of the judgment appealed from was a sufficient compliance with the law. He directed the case to be laid before the chief Justice for obtaining a third Judge's opinion on the question. The third Judge expressed the opinion that the word 'copy' in Section 419 meant a certified Copy and directed his opinion to be laid before the Division Bench. In view of the third Judge, it was held that the memo of appeal had not been accompanied by a 'copy' within the meaning of Section 419, and that on February 25, 1954 when a certified copy came to be filed, the period of limitation for appealing against the order of acquittal passed on July 24, 1953 had already expired, and that as the application for extending the period of limitation had been dismissed, the appeal was time barred and they accordingly dismissed the appeal. However, the case was certified to be a fit one for appeal to the Supreme Court. Their Lordships of the Supreme Court upheld the judgment of the Allahabad High Court holding that 'a copy' within the meaning of Section 419. Cr. P.C. means Certified copy. From the aforesaid judgment of their lordships, it would be clear that the memo of appeal must be accompanied by a certified copy of the judgment of the trial court. Their Lordships of the Supreme Court upheld the judgment of the Allahabad High Court holding that 'a copy' within the meaning of Section 419. Cr. P.C. means Certified copy. From the aforesaid judgment of their lordships, it would be clear that the memo of appeal must be accompanied by a certified copy of the judgment of the trial court. Though their Lordships did not directly examine as to what is its effect, but upheld the order of the Allahabad High Court dismissing the appeal as time barred, because the memo of appeal was not accompanied by a certified copy of the judgment and the same was filed after the expiry of the period of limitation prescribed by law. 8. Learned counsel for the petitioners has contended that even the memo of appeal was not accompanied by a certified copy of the judgment, the appeal could not have been dismissed as time barred. In support of his contention, he has placed reliance on (2) Mukand Lal v. State 1979 Cr. L.J. 105 . wherein the learned Single Judge of the Delhi High Court made the following observations:- "The rule contained in Section 382 is a technical rule; it requires an aggrieved person filing an appeal to attach a copy of the judgment appealed against. There is no real significance in this copy, because when the appeal is heard the whole record is before the appellate court. The purpose of having a copy of the judgment is merely to give the appellate court an initial idea of what the case is at the time of passing interim orders. It is not necessary that this copy need be filed, because the Section allows dispensing with the copy. The provisions should not be read as creating a disability against a person filing an appeal." But the learned Judge has not taken into consideration the observations of the Supreme Court in Tobit's case (supra), which, as already observed above, has upheld the judgment of the Allahabad High Court dismissing the appeal as time barred on the ground that the memo of appeal was not accompanied by the certified copy of the judgment, which copy was filed after the expiry of the period of limitation, and no case for condonation of delay under section 5 of the Limitation Act was made out. That apart, a close scrutiny of the judgment in the aforesaid case of Mukandlal will show that the memo of appeal was accompanied by a certified copy of the judgment appealed against, but was not accompanied by a certified copy of the earlier judgment which had been set aside in appeal, and the case had been remanded. The following observations of the learned Judge in that case are also relevant:- "In the circumstances, I would hold that either the appeal was properly filed or held that this is a case in which that copy should be dispensed with if it is at all a copy which is required to be filed." The other case on which the learned counsel for the petitioner has placed reliance is (3) Rajkapur and others V. State and others (1980) 1 SCC 43 . It was a case of revision filed under sub-section (1) of Section 397 Cr. P.C. In para 11, it was observed: "When the order in original is before you to dismiss the petition for non-production of a copy of it is to bring the judicial process into pejoration, and if a copy were so sacred, then the original were no substitute for it. Some time could have been granted for its production which was not done. In law, as is life, a short cut may prove a wrong cut on the disinter cassation proceedings and direct it to be disposed of de novo by the High Court." 9. The above observations to my mind do not help the learned counsel for the petitioners, because it does not appear from Section 397 (1), Cr. P. C. that it is a requirement of law that the memo of revision should be accompanied by a certified copy of the judgment or order challenged. Once in a revision petition, the record is called for, it is the duty of the Court to examine the same and to satisfy himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed. In another Allahabad case (4) Shambhu V. State AIR 1956 All. 633 , dealing with Section 419 and 369(b), Cr. In another Allahabad case (4) Shambhu V. State AIR 1956 All. 633 , dealing with Section 419 and 369(b), Cr. P. C. (old), it was held that an appeal against conviction and sentence filed before the Sessions Judge accompanied by only a copy of the Magistrate's order sheet and not a copy of the judgment is incompetent since it violated the provisions of Section 419, Cr. P. C. It was also held that though Section 419 empowers the appellate court entertaining a criminal appeal to dispense with the copy or order appealed against, but where the Sessions Judge did not dispense with the copy of the judgment; on the contrary fixed a definite period within which it was to be filed, but inspite of that indulgence the required copy of the judgment was never filed, the Sessions Judge was not having a competent or valid appeal before him, and was fully within his rights in rejecting the petition of appeal. In (5) Phoola V.M.C.D. and another 1975 (1) PFA cases 467, a similar view was taken. In (6) Tulsi and others V. The State AIR 1959 All. 786 , memo of appeal was accepted, and the appeal was registered. Then the Civil & Sessions Judge to whom the appeal was transferred refused the applicant's application for permission to file a copy of the judgment and dismissed the appeal solely on the ground that no copy of the judgment accompanied the memo of appeal. It was held that it was not open to him to dismiss the appeal summarily on the ground of the defect in the presentation of memo of appeal. 10. In my opinion, under Section 419, Cr. P. C. (old) or under Section 382, Cr. P. C. (new), it is necessary that the memo of appeal must be accompanied by a certified copy of the judgment or order appealed against. It is the discretion of the court to dispense with the certified copy or order appealed against. 10. In my opinion, under Section 419, Cr. P. C. (old) or under Section 382, Cr. P. C. (new), it is necessary that the memo of appeal must be accompanied by a certified copy of the judgment or order appealed against. It is the discretion of the court to dispense with the certified copy or order appealed against. In case no prayer for exercise of discretion is made to the Court, and the Court does not exercise the same, then the memo of appeal, which is not accompanied by a certified copy of the judgment or order appealed against will not be valid under law and if a certified copy is sought to be filed later on after the expiry of the period of limitation, application under section 5 of the Limitation Act has to be filed and if no case for condonation of delay is made, then the appeal can he dismissed as time barred. 11. The other question which has been canvassed before me is that once the appeal had been entertained and the sentence had been suspended, it can be taken that the appellate court had exercised its discretion under Section 419, Cr. P. C. (old) and had dispensed with the production of the certified copy. But, while giving the facts of the case, I have already stated that it had been already ordered by the Court while entertaining the appeal that a certified copy of the judgment should be filed immediately and this order was repeated in appeal No. 40/74 on November 25, 1974, and thus it cannot be said that the court exercised its discretion and dispensed with the production of certified copy of the judgment. So far as the condonation of delay is concerned, the learned appellate Court rightly dismissed the application under section 5 of the Limitation Act, because no case for condonation was made out and only when an objection was taken on behalf of the State, that the appeal was not competent and was time barred. because memo of appeal was not accompanied by a certified copy of the judgment, an application was filed on January 23, 1978. because memo of appeal was not accompanied by a certified copy of the judgment, an application was filed on January 23, 1978. Thus, the argument of the learned counsel for the appellant that the appeal having been entertained and the sentence having been suspended, impliedly the court exercised its discretion and dispensed with the filing of the certified copy along with the memo of appeal, has no force. 12. No doubt, Rule 311 of the High Court Rules requires that there should be a certificate signed by the Advocate or the applicant as the case may be that the accused was not on bail, or that if he was on bail, he has surrendered to it, but in the instant case there was no such certificate and the accused persons were not present when the learned Additional Sessions Judge dismissed their appeal being time barred and also did not surrender, and a suspension order was secured from this court in revision. But, still I am of the opinion that the case of the present nature where the occurrence took place in the year 1968 and the case is one which can be dealt with under Section 360, Cr.P.C. or under the provisions of the Act, it should be so dealt with. Even when the learned Magistrate passed the order, the Act was in force, and Section 561, Cr. P. C. was also there. 13. In the result I will allow these revisions in part. While maintaining the conviction of the accused-petitioners for the offences of which they have been convicted, instead of sentencing the accused-petitioners atone to any immediate imprisonment, I hereby direct that each of the accused-petitioners will be released on his entering into a bond in the sum of Rs. 2,000/- and a surety in the like amount to the satisfaction of the trial Court to appear and receive the sentence when called upon during a period of one year and in the mean time to keep the peace and be of good behaviour. Two months time is allowed to the petitioners to furnish the bonds to the satisfaction of the trial Court. *******