Kuldip Das vs Emperor

Macpherson, J.—Three persons, Raghunandan Singh, Raghubar Koiri and Kuldip Das, were tried at the Sessions with a jury on charges under Sections 147 and 395, Penal Code, and were convicted and sentenced. Two of them, Raghunandan Koiri and Kuldip Das, have appealed. Raghubar Koiri has not appealed. The appeals came up before two separate Benches of this Court which considered that the sentences which are one year''s rigorous imprisonment u/s 147 and seven years'' rigorous imprisonment u/s 395, to run concurrently, and a fine of Rs. 800 in each case, required examination. The order which was passed in the appeal of Kuldip Das was:

This appeal is dismissed except as to the question of sentence on which only it will be heard.

The order in the case of Raghunandan Singh was:

This appeal will be heard with the appeal of Kuldip Das on the question of sentence only. Quoad ultra it is dismissed.

The learned advocate who have appeared in support of the appeals have urged that though the appeals have been admitted on one point only, they are under the Code and the decisions entitled to be heard upon the whole appeal. Reliance is placed upon the decision in Gaya Singh v. Emperor AIR 1925 Pat 453 which followed Nafar Sheikh Vs. Emperor, and which has been followed in this Court by a member of this Bench in Rameshwar Prashad Verma Vs. Emperor, . As regards the decision of a single Judge, it is enough to say that it was not open to the learned Judge to ignore the decision of a Division Bench even if contrary to his own views.

Now though, in my opinion, the decision in Gaya Singh v. Emperor AIR 1925 Pat 453 may require examination when a proper occasion arises, in the present instance it is clearly distinguishable. There the order of the Bench which heard the appeal was: "This appeal will be heard on the question of sentence only." A definite order of dismissal on other points raised on behalf of the appellant cannot be said to have been passed. In the present instance however it is clear that the Benches which admitted the appeals on the question of sentence, have not only determined all other considerations which could be advanced in favour of the appellants [as the trial was by jury, the appeal is u/s 418(1) limited to a matter of law only] and have determined them adversely to the appellants and dismissed the appeal in respect of them.

The dismissal was u/s 421, Criminal P.C. It is not open to us to go behind such an order of dismissal even if passed by this Bench at an earlier stage, and still less if passed by a different Bench. Section 422 only applies if and in so far as an appeal has not been dismissed summarily. If in part it has not been so dismissed, the provision will apply in respect of such part: it cannot however operate to nullify a definite order of dismissal u/s 421.

It is unnecessary to appeal to the argument of convenience of the Courts and of the appellants themselves, powerful though it be. In my judgment we are bound by the order of dismissal in part passed at the time of presenting the appeal and the only portion of the appeal which remains for decision is that in respect of which there was not an order of dismissal, that is to say, the question of sentence.

We have carefully considered the submissions in respect of the sentence which prima facie was severe. It is true that the loot in the dacoity was very great and extended to at least Rs. 2,000 and naturally it is desirable that the dacoits should not profit financially by their crime. At the same time we consider, having regard to all the circumstances of the case, that the necessary and sufficient punishment is a sentence of five years'' rigorous imprisonment and a fine of Rs. 200 in default six months'' rigorous imprisonment. The sentences upon the two appellants are reduced accordingly.

Rowland, J.

I agree. I would like to point out that in the case of Sheikh Rijhu v. Emperor AIR 1931 Pat 351, which came before me, the question was as to the propriety of an order by a Sessions Judge (to whom appeal lay on facts as well as law) directing that the appeal be admitted on the question of sentence only. He had not passed an order summarily dismissing the appeal, and if he had passed such an order the propriety of doing so without giving reasons would have fallen to be considered in revision, for it has been repeatedly held that a Sessions Judge even in disposing of an appeal summarily is required to give some reasons. The Bombay case of Emperor v. Keshavlal Virchand [1911] 35 Bom 418 was also a decision dealing with the procedure of a Sessions Judge who had passed an order exactly similar to that passed by the Sessions Judge in the case of Sheikh Rijhu AIR 1931 Pat 351.

I expressed no opinion as to the procedure in the High Court in dealing with appeals, where different considerations may arise. The provisions of the Code with reference to the judgment of a subordinate Court do not apply to the judgment of a High Court; the High Court can undoubtedly dismiss an appeal by an order without giving reasons. To that extent the decisions in Keshavlal Virchand [1911] 35 Bom 418, and in Sheikh Rijhu AIR 1931 Pat 351 are not on all fours with the case before us.

The case of Gaya Singh AIR 1925 Pat 453 is distinguishable as pointed out by my learned brother, with whom 1 agree in thinking that the correctness of some of the observations in the judgment of that case may require further examination with reference to the provisions of the Code which conclude an appellant from challenging a conviction when he has pleaded guilty and those provisions which conclude him from appealing on facts when he has been Convicted by a jury. Except as regards sentence, the petitions of appeal before us were but thinly disguised attempts to reopen matters of fact concluded by the verdict.