Sunil Singh v. State Of Bihar — 1999 DIGILAW 586 (PAT)

Judgment B.P.Singh, R.N.Sahay and D.P.S.Choudhary JJ. 1. The appellants filed this appeal on the 1st of April, 1999 impugning the judgment and order of the 2nd Addl. Sessions Judge, Gopalganj in Sessions Trial No. 168 of 1992/94 of 1992 convicting the appellants of the offence under Sections 302/34, IPC and sentencing each one of them to undergo rigorous imprisonment for life. After the appeal was filed and the defects pointed out by the office removed, the appeal was not placed before the Court for admission and for consideration for grant of bail. Counsel for the appellants objected before this Court contending that the Registry cannot withhold the memo of appeal awaiting the receipt of the lower Court record. This was presumably because there was an order of a Division Bench of this Court reported in 1999 (1) PLJR 936 : 1999 (1) PCCR 413 directing that only after receipt of the record, the appeals be placed for admission and/or for passing orders on bail. The objection of counsel for the appellants was heard by a Division Bench of this Court which by order, dated 21.6.1999 directed that the matter be placed for consideration by a larger Bench. Hon ble the Chief Justice thereafter, has referred the matter to this Bench for consideration of the objection of the appellants regarding non- listing of the appeals for admission and for non-consideration of the bail petition without receipt of the lower Court record. 2. The learned Advocate-General submitted that the aforesaid order of a Division Bench of this Court does not lay down any principle of law and is, therefore, not a binding precedent. It is in the nature of an administrative direction though made on the judicial side. In any event, it appears that the relevant provisions of the Code of Criminal Procedure and the Patna High Court Rules were not brought to the notice of the Bench passing the order, and therefore, an order has been passed which is in the teeth of the provisions of the Code of Criminal Procedure and must therefore, be read as per incurium. He has submitted that the direction made in the aforesaid order is untenable having regard to the provisions of the Code of Criminal Procedure. He has submitted that the direction made in the aforesaid order is untenable having regard to the provisions of the Code of Criminal Procedure. There is no warrant for the proposition that a criminal appeal duly presented by an appellant shall not be listed before a Court for admission and for orders on bail petition without receipt of the lower Court record. The order of this Court aforesaid is a short one and the same is reproduced below in extenso for the sake of convenience. "1. Usually, it is seen that in Criminal appeal DB or Single Bench cases, only after the order of the Court, records of the lower Court are sent for, which practice is not good. 2. In criminal appeals, DB or Single Bench, no sooner the appeal is presented, the Registry is directed to send for lower Court records and after receipt of the records, the appeals be placed for admission/and on for passing orders on bail. 3. In the instant case, although the appeal was presented on 11.1.1999, but, we are informed that as yet no memo is issued to the Court concerned, requisitioning the lower Court records. 4. Thus, Registry is directed to comply with this order in letter and spirit and send for the lower Court records immediately. 5. Let a copy of this order be forwarded to the Registrar-General for circulating it in the Regsitry to the main seat of Patna High Court." 3. The first part of the order refers to the fact that in Criminal appeals records of lower Court sent for only after the Court passes such an order, and it has been observed that this practice is not good. The order, therefore, proceeds on the basis that calling for the record the lower Court after the Bench passes such an order is a matter of practice. The second paragraph of the order contains the direction of the Bench directing the registry to send for the lower Court record as soon as the appeal is presented, and after receipt of the record to place the appeal for admission and/or for passing orders on bail. The Registry has been directed to comply with the order in letter and spirit and send for the lower Court record immediately. The Registry has been directed to comply with the order in letter and spirit and send for the lower Court record immediately. It has further been directed that the order of this Court be forwarded to the Registrar-General for circulating it in the Registry to the main seat of Patna High Court. It is perhaps on account of this order that Criminal Appeals presented before this Court are not being placed for admission and/or for order on bail petition pending receipt of the lower Court record. The learned Advocate-General has brought to our notice the provisions contained in the Code of Criminal Procedure, and in particular, he draws our attention to Sections 382 to 385 of the Code. Section 382 of the Code provides that 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. Section 383 deals with petition of appeal sent from jail. Sub-section (1) of Section 384 of the Code provides that if, upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily, subject to the right of the appellant of being heard. Sub-section 2 of Section 384 provides that the Court may call for the record of the case before dismissing the appeal summarily. 4. Section 384, therefore, clearly vests in the appellate Court a power to dismiss an appeal summarily and though summary dismissal of an appeal is rare, the jurisdiction of the Court to dismiss an appeal summarily in cases where there are no arguable questions of fact or law cannot be disputed. This power can be exercised by the Appellate Court even before the receipt of the lower Court record from the Court below. Though under Section 384, the Court may in appropriate cases call for the lower Court record of the case before dismissing an appeal summarily. This power can be exercised by the Appellate Court even before the receipt of the lower Court record from the Court below. Though under Section 384, the Court may in appropriate cases call for the lower Court record of the case before dismissing an appeal summarily. The learned Advocate-General, therefore, submitted that an appeal preferred before this Court under Section 382 or Section 383 of the Code of Criminal Procedure must, in the first instance, even without the lower Court record, be placed for admission before a Bench of this Court, and the Bench may dismiss such an appeal summarily. 5. Section 385 provides that if, the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf, and to the complainant, if, the appeal is from a judgment of conviction in a case instituted upon complaint. Sub-section (2) of Section 385 provides that "the Appellate Court shall then send for the record of the case," if, such, record is not already available to the Court, and hear the parties, (emphasis supplied). Proviso to sub-section (2) of Section 385 provides that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. 6. Section 386 then deals with the powers of the Appellate Court which is not relevant for our purpose. 7. The learned Advocate-General is, therefore, right in submitting that the Code of Criminal Procedure itself envisages appeals which may be dismissed summarily without calling for the record. Even if, an appeal is not dismissed summarily, the Court may decide to admit the appeal for hearing without calling for the record, except appeals covered by proviso to sub-section (2) of Section 385 of the Code, which may be disposed of even without the lower Court record. He is also right in contending that not as a matter of practice, but, as a matter of requirement of law, the Bench dealing with the appeal is required to pass an order calling for the record of the case from the Court below. He is also right in contending that not as a matter of practice, but, as a matter of requirement of law, the Bench dealing with the appeal is required to pass an order calling for the record of the case from the Court below. The learned Judges were, therefore, not right to observing that the record is called for by the Registry only after the Benches dealing with the criminal cases call for them, as a matter of practice. 8. The learned Advocate-General has also drawn our attention to the provisions in the Patna High Court Rules, particularly Rules 5 to 15 under Chapter XII which deals with the procedure in criminal cases. Rule 5 provides for the manner in which petition of appeal or application for revision shall be presented before a Court. Under Rule 8, no appeal against conviction, or motion, shall be heard for admission unless the appellant has surrendered to the order of the Court below convicting him to a sentence of imprisonment for a term, and an intimation to this effect has been filed, except in cases, where the appellant has been released on bail by the trial Court. Rule 9 requires that no appeal shall be made without notice in writing given to the Advocate- General not later than on of the day preceding that on which the application is to be made. Rule 12 provides that if, upon any petition a Judge orders : (i) the records to be sent for, the Registrar shall send for the record and submit it to the Judge, who passed the order; (ii) a rule to issue, the Registrar shall fix a day hearing and shall cause notice to issue in the prescribed form; (iii) the records to be sent for the rule to issue, the Registrar shall fix a date for hearing, cause notices to issue in the prescribed form and send for the record. Rule 13 provides that, a copy of every notice issued on admission of appeal, reference, revision and motions cases shall be sent to Advocate-General of Bihar. Under Rule 14 subject to any order which may be made by a Bench, the date of hearing of any appeal, application or motion shall be fixed by the Registrar. Rule 13 provides that, a copy of every notice issued on admission of appeal, reference, revision and motions cases shall be sent to Advocate-General of Bihar. Under Rule 14 subject to any order which may be made by a Bench, the date of hearing of any appeal, application or motion shall be fixed by the Registrar. Rule 15 is also important and reads as follows : "When an appeal, application or motion has been admitted, notice in the prescribed form shall at once be issued by an Officer of the Court appointed for the purpose, to the Court of Chief Judicial Magistrate concerned, calling upon him to transmit the records of the case and all material papers along with the service reports of notices to the respondents or Opposite Party, as the case may be, annexed thereto before the appointed date. In cases instituted on complaint or appeal under Section 377, Cr PC notice shall also be issued to the complainant. The records of Sessions trial or cases disposed by Court of Session shall be called for direct from the concerned Court." 9. The procedure prescribed under the Patna High Court Rules follows the same patterns as the Code of Criminal Procedure and further clarifies that the record is to be sent for after an appeal application or motion has been admitted by a Bench. Under Rule 15, where an appeal, application or motion has been admitted notice is required to be issued to the Court of Chief Judicial Magistrate concerned calling upon him to transmit the record of the case and all material papers along with the service reports of notices, etc. 10. There is, therefore, no room for doubt that after an appeal is presented before this Court, the appeal has to be placed before the Bench for its consideration. The Bench may either dismiss the appeal summarily, even without calling for the record, or in appropriate cases call for the record. If it does not summarily dismiss the appeal, the Bench may admit the appeal and call for the lower Court record. Thereafter, the appeal has to be heard in accordance with the procedure prescribed under the Patna High Court Rules. If it does not summarily dismiss the appeal, the Bench may admit the appeal and call for the lower Court record. Thereafter, the appeal has to be heard in accordance with the procedure prescribed under the Patna High Court Rules. It is also open to the Bench while considering the appeal for admission to call for the record at that stage, and if, the Bench calls for the record, a notice has to be issued to the concerned Court to sent the record to this Court. Even if, the Court admitting an appeal does not pass a specific order calling for the record of the lower Court, Rule 15 comes into operation and mandates the office of this Court to call for the lower Court record. Rule 15, however, comes into operation only after the matter has been admitted for hearing. It is, therefore, apparent that not as a matter of practice, but, pursuant to the provisions contained in Code of Criminal Procedure and the Patna High Court Rules, the Bench is required to call for the record. There is no provision in the Code of Criminal Procedureor in the Patna High Court Rules empowering the Registry of this Court to call for the record of the case on its own without an order of the Bench dealing with the appeal, revision, etc. until the matter has been admitted for hearing. 11. While on this question, we may also refer to Rule 35 of Chapter XII of the Patna High Court Rules which provides that criminal appeals, other than Jail appeals, shall be presented in open Court. Rule 37 provides that if the appeal is admitted, it shall be dealt within the manner prescribed for appeals which are filed in the open Court. Under Rule 38 as soon as the notices have been issued, the Registrar shall cause paper book to be prepared, which under Rule 39 shall contain the petition of appeal, the judgment appealed against and any other petition or affidavit which may be filed and ordered by the Bench to be considered at the time of hearing of appeal. Thereafter, upon receipt of the record, the Registrar shall cause a paper book of the lower Court recorded to the prepared in the manner provided under Rule 41. Thereafter, upon receipt of the record, the Registrar shall cause a paper book of the lower Court recorded to the prepared in the manner provided under Rule 41. These rules also indicate that the petition of appeal has to be placed before an appropriate Bench for passing appropriate order after the same has been filed. Though, as a matter of practice, the petition of appeal is not filed in the open Court, and is now being filed at the Centralised Section by reason of the amendment of Rules, the memo of appeal, even if, presented at the filing counter, has to be placed before a Bench for orders in the admission matter and for orders on any other application which may have been filed, such as a bail petition. 12. We can take judicial notice of the fact that some times it takes considerable time for the lower Court recorded to reach this Court and there may be many reasons for such delay, including negligence on the part of the persons concerned. The order of the Division Bench impugned before us, was perhaps passed with a view to emphasise that the lower Court record must be received promptly by this Court so that the hearing of matters before this Court is not delayed, and was not intended to delay the hearing of the bail petitions filed along with the memo of appeal. It appears that, the provisions of the Code of Criminal Procedure and the Patna High Court Rules were not brought to the notice of the Bench. A petition of appeal is presented along with a copy of the judgment of the Court below. A judgment in a criminal trial must contain all the material facts of the case, the submissions urged on behalf of the parties and the findings recorded by the Court below together with reasons therefore. In the memo of appeal, the appellant is expected to set out the grounds on which he impugns the judgment of the Court below. Normally, therefore, the judgment of the trial Court together with the memo of appeal presented by the appellant should provide sufficient material to the Court to decide whether the appeal should or should not be admitted for hearing. If the Court does not dismiss the appeal summarily, it may admit the appeal and call for the record. Normally, therefore, the judgment of the trial Court together with the memo of appeal presented by the appellant should provide sufficient material to the Court to decide whether the appeal should or should not be admitted for hearing. If the Court does not dismiss the appeal summarily, it may admit the appeal and call for the record. At that stage, the Court may also consider the question of grant of bail to the appellant. There is nothing in the Code which provides that the appeal presented by an appellant should be placed before a Court only after receipt of the lower Court record. It may be that while considering an appeal for admission, the Court may call for the record before passing an order. Similarly, in a case where the memo of appeal is accompanied with a prayer for release of the appellant on bail, the Court may call for the lower Court record before passing an order on the petition for grant of bail. This may be done in cases where the judgment may by cryptic and the Court feels the need to peruse the record of the case. Similarly, in a case where a statement in a judgment is challenged on the ground that it suffers from an error of record, the Court may wish to verify the fact from the lower Court record before passing an order in the bail matter. These instances, however, are rare, and in vast majority of cases the Court while admitting an appeal calls for the record and also disposes of the application for grant of bail. Counsel appearing on behalf of the appellant submitted that this procedure is followed since ages, and that it is not merely a practice, but, the procedure established by law. While passing the order aforesaid, the notice of the learned Judges was not drawn to the provisions contained in the Code of Criminal Procedure, or else such an order may not have been passed. 13. Having regard to the provisions of the Code of Criminal Procedure and the Rules of the Patna High Court, we are of the view that, after a criminal appeal is presented before this Court and is found to be in order, the appeal has to be placed before the appropriate Bench of this Court for admission of the appeal, and for necessary order on bail petition if any. It is not necessary that, before an appeal is placed for admission and for orders on any petition accompanying the memo of appeal, the record of the lower Court should be available to this Court. Even in the absence of the lower Court record, the Bench is empowered to dispose of the appeal summarily, if it is a case which can be disposed of summarily, or may admit the appeal and call for the record and at the same time pass order on the bail application. It is only thereafter, that the Registry is required to call for the lower Court record and prepare paper book, etc. We, therefore, hold that the order of the Bench of this Court reported in, 1999 (1) PLJR 936, passed on 13.1.1999 in Jannu Roy and anothers V/s. The State of Bihar, does not lay down a binding precedent, and is in the teeth of the provisions of Sections 384 and 385 of the Code of Criminal Procedure. We, therefore, overrule the aforesaid order and direct the Registry to proceed in accordance with the provisions contained in the Code of Criminal Procedure and the Patna High Court Rules.