Dewal Mahton and Another vs Emperor

Adami, J.—The petitioners were convicted u/s 379, I.P.C., by a Deputy Magistrate of the 2nd Class and sentenced to pay a fine of Rs. 30 each, or in default rigorous imprisonment for thirty days.

The case for the prosecution was that Churan Gope, the recorded tenant of a holding under the petitioners, who were the landlords of the village, having died, the complainant came into possession of the holding.

The petitioners, however, were not ready to recognize him as a tenant and set up two of their servants Puna and Khedua to claim that they ware entitled as heirs of Churan in preference to the complainant. Eventually the names of these two persons were entered in the sharista and the landlords refused the rent from the complainant.

On the day of the occurrence the two petitioners entered the field cultivated by the complainant and looted away his makai crop. The Deputy Magistrate found that, though the petitioners had done their best to influence the prosecution witnesses, the possession of the complainant was proved and also the theft by the petitioners, and he thereof ore convicted the petitioners, as I have stated above.

An appeal was made before the Deputy Commissioner of Hazaribagh, who, having heard the pleader for the petitioners then sent for the record of the case. After perusal of the record he passed the following order:

I have gone through the record of this casa carefully. I agree with the lower Court in thinking the case a true one, and the evidence is sufficient to support the conviction. The appeal is summarily dismissed.

Against that order this Court was moved. It was contended that the order was not according to law, firstly because the case was one in which there should have been no summary dismissal, and secondly, that, having called for the record, the Deputy Commissioner was bound again to hear the pleader which he failed to do. It is also urged that as there was a bona fide dispute as to title between the parties, the appeal should have been heard in the ordinary way.

The application was heard by a single Judge of this Court, who disagreed with a decision of Chapman, J., in the case of Jagdeo Rai v. Kali Rai [1917] 18 Cr. L.J. 639, in which it was held that after perusal of a record the appellate Court is again bound to hear the appellant''s pleader. The learned Judge, considering that this was a point which should be decided by a Bench, has referred the case to us.

First, with regard to the question whether the Deputy Commissioner was bound again to hear the pleader, the case which was chiefly relied upon was the case of Jagdeo Rai v. Kali Rai [1917] 18 Cr. L.J. 639, above cited. Chapman, J., in that case, decided that where a District Magistrate, on a criminal case coming before him in appeal, sends for the record and on receipt of the record dismisses the appeal without hearing the appellant or any legal practitioner engaged on his behalf, the procedure adopted by him is not in accordance with law and the appellant must be given an opportunity to be heard.

There are two other cases which have also been relied on they are Lalit Kumar Sen Vs. Emperor, and Surendra Nath Ghose and Others Vs. King-Emperor, . These two cases were both decided by the to the effect that after a record has been sent for, the pleader must be heard.

Now in the first of the three cases Chapman, J., remarked that the record was sent for after giving some sort of hearing to the mukhtear at the time of the, presentation of the appeal. In the other two cases there is nothing to show that a pleader had been heard before the record was sent for.

In the present case the learned Deputy Commissioner gave a full hearing to the pleader before he decided to send tot the record. If we turn to Section 421, Criminal P.C. we find that, though it is provided that no appeal presented u/s 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same, the Court has power, before summarily dismissing an appeal, to call for the record but is not bound to do so. There is nothing in that section requiring that the pleader should be heard again if a record is sent for. All that the section requires is that the pleader shall have a reasonable opportunity of being heard in the Court of appeal before there is a summary dismissal.

In the present case the pleader had been fully heard and had the reasonable opportunity which the section demands. It may be that in some cases, after perusing" the record, the Court may de sire to hear the pleader on a point which the perusal of the record makes it necessary to have explained, but I can find nothing in the law requiring this; second hearing of the pleader.

In the case of Emperor Vs. Basavaneppa Basava, , Fawcett and Patkar, JJ., held that ordinarily, if the Court does send for the record it is preferable to hear the pleader when the record is before the Court, but there is nothing in Section 421 to prevent the Court from hearing the appellant''s pleader at the time when he presents the appeal, if the appellant''s pleader desires that course, and if the Court decires to send for the record then it is not illegal summarily to dismiss the appeal without giving a further opportunity of the pleader being heard. That decision coincides with my view on the point. If after hearing a pleader and sending for the record it is necessary to hear the pleader again with the record before the Court, the dealing with the appeal would hardly be a summary dealing, for the appeal would practically have to be heard fully and there would be no reason for the Sub-section (2), Section 421, allowing for the calling for the record before summarily dismissing an appeal. I would hold that, though in many cases it may be useful to hear the pleader again to elucidate some point raised by a perusal of the record, there is no illegality in summarily dismissing the appeal without hearing the pleader again after the record is called for.

With regard to the reasonableness of the summary dismissal in this case it has to be remembered that there was really no bona fide dispute as to the right to hold the land between the petitioners and the complainant in the case. Any such dispute, if it existed, was between the complainant and Puna and Khedu. The landlords, in no case could claim that they had a right to enter a tenant''s holding and cut and take away his crop, so that the contention that this case should have been heard fully as any ordinary appeal and a judgment should have been delivered on the ground that there was a bona fide dispute can have no support. The Deputy Magistrate came to a finding that he believed the complainant and his witnesses on the question of possession and as to the theft of the crop by the petitioners, and the learned Deputy Commissioner states in his order that he has carefully read through the record and finds that the Deputy Magistrate''s finding on this point was correct.

The order of the Deputy Commissioner is a proper order u/s 421, It was unnecessary for him to write a judgment if he found that the case was one which could be dismissed summarily.

I can see no reason to interfere in this case and the application should be rejected.

Scroope, J.

I agree. Section 421, Criminal P.C., contemplates that a reasonble opportunity of being heard should foe given to the appellant or his pleader in support of the appeal no more and no less; and if after hearing the pleader at the time of presentation of the appeal, as admittedly the Deputy Commissioner did in this case, he then sends for the record and dismisses the appeal without hearing the pleader for the appellant--then I do not consider that he infringes the section in question. In fact my view entirely coincides with that expressed on this matter in the case of Emperor Vs. Basavaneppa Basava, .