Basdeo Koiri and Another vs Emperor

Manohar Lall, J.—This is an application on behalf of the petitioners against the summary order of dismissal of their appeal by the learned Sessions Judge of Gaya. The learned Judge was asked to submit an explanation on the facts stated in para. 8 and in ground No. 1 of the application to this Court, namely

that on 16th July 1937, the learned Sessions Judge dismissed the appeal summarily apparently u/s 421, Criminal P.C., but without hearing the petitioners'' pleader in support thereof or even without giving them a reasonable opportunity of being so heard at any stage of the appeal.

The learned Sessions Judge has submitted an explanation which is to the effect that the appeal was presented before him by the pleader for the petitioners on 14th July and he heard him fully but was not inclined to admit the appeal on that date. He was in doubt whether he would summarily dismiss the appeal, but in order to satisfy himself as to the points raised by the appellants'' lawyer, he sent for the record of the case and having perused the same dismissed it summarily on 16th July 1937. Now, in view of this statement, which must be accepted as correct, it is not open to the petitioners to say that they were not given sufficient opportunity at the time they presented the appeal. It is true that the learned Judge has not committed any illegality in the course adopted by him as was observed by this Court Dewal Mahton v. Emperor A.I.R.1930. Pat 499 But in my opinion it is desirable in all cases where a busy Sessions Judge sends for the record in a criminal appeal, which is presented to him for admission, that he should note in the order, sheet the points for which he is sending for the record in order to satisfy himself as to the correctness of the submissions made by the appellants before him. It will be difficult in many cases, if not in all, for a busy Sessions Judge to remember the submissions which were advanced by the appellants'' advocate which had satisfied him to this extent that he was forced to send for the record.

In the present case I do not see any trace in the order-sheet of 14th July 1937 as to the points on which the learned Judge wanted to be satisfied by a perusal of the record which he sent for. Again, in the order under revision the learned Judge says in the concluding portion of his remarks:

There is no reason why the complainant should pursue the prosecution, unless the appellants did something highhanded.

With great respect to the learned Judge, this remark is liable to give rise to the objection that the learned Judge has not dealt with the case on the facts but simply upon the ground that when the complainant brings his case he must be assumed to have a real grievance. This is not the manner in which criminal trials are conducted in this country. The presumption is just the other way. The accused must be presumed to be innocent unless the prosecution have satisfactorily and without any reasonable doubt shown that the guilt is brought home to the accused. I think therefore that the order of the learned Judge was improper, although not illegal, within the meaning of Section 435 Criminal P.C.

In the result I set aside the order and direct the learned Judge to re-hear the appeal after sending for the record and after giving notice to the Public Prosecutor so that the Crown may be represented.

The petitioners will be released on bail to the satisfaction of the District Magistrate pending the disposal of the appeal by the learned Judge, which will be expedited.