Patna High Court
Bindhyachal Ahir vs State Of Bihar on 16 September, 1957
Equivalent citations: AIR1958PAT98, 1957(5)BLJR727, 1958CRILJ210, AIR 1958 PATNA 98, 1957 BLJR 727 ILR 36 PAT 1285, ILR 36 PAT 1285
JUDGMENT
1. This is a represented appeal by Binduyacnal Ahir. The appellant and Shrikishan Dusadh were convicted by the Sessions Judge of Purnea on 31-1-56 of an offence under Section 402 of the Indian Penal Code and sentenced to 7 years' rigorous imprisonment each. They were also convicted under Section 399 of the Indian Penai Code, but no separate sentence was imposed upon them under that section. The convicted persons riled an appeal trom jail which was received in this Court on 20-3-56.
On 23-3-56 Bindhyachal Ahir alone filed the present appeal through counsel. On 3-4-56 the jail appeal was summarily dismissed by the Criminal Bench then presided over by Sahal and Prasad JJ. under the provisions of Section 421 (1) of the Code of Criminal Procedure. When the represented appeal came up for admission before a single Judge of this Court on 4-4-56 it was brought to his notice that a jail appeal preferred by the appellant and the other convicted person had already been dismissed on the prcviou's day.
The learned Judge thereupon ordered the appeal to be placed before the Bench which had dismissed the jail appeal. When that Bench took up the matter it was contended on behalf of the appellant that the dismissal of the jail appeal was not a bar to the admission of the regular appeal. Observing that the matter required investigation their Lordships directed notice to be issued to the Advocate General.
The question as to whether the dismissal of the jail appeal was or was not a bar to the admission of the regular appeal was heard by the Bench on 25-7-56. On a suggestion from the Additional Standing Counsel that the question might be considered and finally decided at the time of the hearing of the appeal their Lordships Ordered as follows :
''We think, in the circumstances of this case, that this would be the best course to adopt. We, therefore, admit the appeal subject to the condition that the question of its maintainability will be considered at the time of its hearing. Issue notice."
2. The learned Additional Standing Counsel has raised a preliminary objection to the hearing of this appeal and we have heard both sides on the question of whether in view of the jail appeal having been summarily dismissed under Section 421 (1), this Court has jurisdiction to hear the represented appeal,
3. The learned Additional Standing Counsel contends that so far as this Court is con-
cerned the matter is concluded by the case of Pern Manion v. Emperor, ILR 14 Pat 392 : (AIR 1935 Pat 420) (A), where a Bench of this Court laid down when an accused person presented a petition of appeal from tne conviction and sentence passed on him through the officer in charge of the jail in accordance with the provision of Section 420 of the Code ot Criminal Procedure, and the appeal was dismissed by the High Court, but later another memorandum of appeal was presented to the Court through an advocate and was admitted by the Bench which had dismissed the jail appeal, the Court bad no power to entertain an appeal from the conviction and sentence passed on the appellant after the dismissal of the appeal which he had preferred from jail.
Their Lordships further held that neither the Bench which nad admitted the appeal nor the Bench beiore which it came on for final hearing had power to review or revise the order of dismissal. In laying down these propositions their Lordships followed the decisions in Emperor v. Khiali, ILR 44 All 759 : (AIR 1922 All 480) (B); Kunhahamad Haji v. Emperor, ILR 46 Mad 382 : (AIR 1923 Mad 426) (C); Lachmi Singh v. Bhusi Singh, 43 Ind Cas 817 : (AIR 1917 Pat 110) (D); Gajo Chaudhry v. Debi Chaudhury, 72 Ind Cas 945 : (AIR 1923 Pat 532) (E); Nand Kishore Lal v. Emperor, 51 Ind Cas 271 : (AIR 1919 Pat 514) (F); Kuldip Das v. Emperor, ILR 11 Pat 697 : (AIR 1933 Pat 38) (G).
4. The learned Additional Standing Coun-sel has also referred to some recent cases Rabari Rana Raja v. State, (S) AIR 1955 Sau 9 (H); State v. Kalu, AIR 1952 Madh-B 81 (FB) (I) and Jodha v. Emperor, AIR 1940 Oudh 369 (J), where the same view has been expressed. It has been pointed out in the Saurashtra case (H), that the dismissal of an appeal from jail is as final as the dismissal of an appeal filed under Section 419 after giving a hearing to the appellant or his pleader, and that Sub-section (1) of Section 421 made no distinction between an appeal filed under Section 419 and one filed under Section 420 in so far as it empowered the Court to dismiss it summarily, the only distinction being that in the case of an appeal under Section 419 before doing so the appellant or his pleader is to be given an opportunity of being heard.
5. Learned counsel for the appellant has drawn our attention to Hulai v. Emperor, 36 Ind Cas 133 : (AIR 1916 Oudh 85) (K); Lachh-man Chamar v. Emperor, AIR 1934 All 988 (1) (L) and In re, Kunta Gowramma, 1952 Cr LJ 1057 (Mad) (M). The case reported in 36 Ind Cas 133 : (AIR 1916 Oudh 85) (K), was noticed by Agarwala and Verma JJ. in Pem Mahton's case (A), but was not followed. Neither this case nor the case reported in AIR 1934 All 988 (1)(L), was followed in AIR 1949 Oudh 369(J) In the case of AIR 1934 All 988 (1) (L), it was held that the dismissal of the jail appeal must be deemed to be a provisional dismissal in no way affecting the right of the appellant to have his counsel heard under the proviso to Section 421, Criminal Procedure Code, in connection with the appeal filed under Section 419, Criminal Procedure Code. Their Lordships went on to reier to the practice in regard to sealing ot the order on jail appeals in that Hign court and remarked :
"the practice in tne High Court is that a summary dismissal of a jail appeal by a learned Juuge aoes not in any way debar the hearing of an appeal tiled by counsel. Indeed, the fixing of the seal is delayed till the period of limitation is over".
Apparently the decision was based upon the practice in the Aiianabad High Court under which the dismissal of a jail appeal does not debar tne hearing of an appeal filed by counsel. The view expressed in the Allahabad case dissented irom in AIR 1940 Ouari 369 (J). It was further pointed out in that case that a different view has been expressed by tne Allahabad High Court on the point in ILR 44 All 759 : (AIR 1922 All 480) (B).
The decision reported in 36 Ind Cas 133 : (AIR 1916 Oudh 85) (K), was referred to but was not followed in that case. 1952 Cr LJ 1057 (Mad) (M), which is a single Judge decision of the Madras High Court, it was observ-ed that once an appeal preferred by the counsel was in the arenives of the Court and when it was pending after notice to the Public Prosecutor was given the Court had no jurisdiction to dismiss the jail appeal without aliording an opportunity to the counsel to argue the case.
This case does not make mention of the earlier decision on the point. In the case reported in (S) AIR 1955 Sau 9 (H), on the other hand several decisions of the Madras High Court have been referred to, where it was held that the Court was functus officio and the order in the later appeal made after the summary dismissal of an appeal from jail was one without jurisdiction.
6. Learned counsel for the appellant laid stress on the fact that the present appeal was pending when the jail appeal was dismissed. It was argued that this distinguishes it from the facts of ILR 14 Pat 392 : (AIR 1935 Pat 426) (A). We do not see any force in this contention. As has been pointed out before, all that the proviso to Section 421 of the Code of Criminal Procedure requires is that an appeal filed under Section 419 can be dismissed summarily only after the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
In Pem Mahton's case (A), it has been clearly laid down that the Bench had no power to review or revise the order of dismissal of a jail appeal when that order, as in the present case, was valid and proper in law. Learned Counsel for the appellant also suggested that the subsequent order of the Bench admitting the present appeal should be regarded as an order reviewing the order of dismissal of the jail appeal. We are unable to accede to this contention. A similar argument was advanced also in Pem Mahton's case (A), but their Lordships replied it with these observations :
"I am not prepared to hold that the Bench which admitted the appeal on 6th of September intended to assume a jurisdiction which it did not possess. The view I take of that order is that it admitted the appeal subject to any objection which might be taken to its hearing."
In the present case there was an express order to the effect that the appeal was admitted subject to the condition that the question of its maintainability was to be considered at the time of its hearing.
7. In our view, therefore, this Court has no power to entertain this appeal. The appeal must, therefore, be dismissed.