Mahanth Gulab Das vs Emperor

Fazl Ali, J.—In my opinion the order of the learned District Magistrate against which this application is directed cannot be supported. On 25th March 1935 the petitioner preferred an appeal before the District Magistrate against his conviction under S. 379, I.P.C., by a Magistrate holding second class powers. The learned District Magistrate took up the appeal on 2nd April 1935 and summarily rejected it, the order which he recorded in the order sheet on that date being to the following effect: "Time prayed for. I do not agree as notice was given. Appeal summarily rejected. Now, one of the petitioner''s grievances in this Court was that he had received no timely notice that his appeal was to be heard by the District Magistrate on the 2nd April. This however is not borne out by the order sheet. It was also stated that the pleader who had been instructed by the petitioner to argue the appeal was busy elsewhere when the petitioner''s appeal was taken up by the District Magistrate and in the circumstances of the case the learned Magistrate should have granted a short adjournment to the petitioner. It is however unnecessary for me to go into this question as, in my opinion, in summarily rejecting the appeal the learned District Magistrate disregarded the clear provisions of S. 421, Criminal P.C. That section provides that before an appeal is summarily dismissed the Court must peruse the petition of appeal as well as the copy of the judgment of the trial Court and it can dismiss the appeal only if it considers that there is no sufficient ground for interfering. The order of the learned District Magistrate does not indicate that he gave any consideration to the merits of the case and it appears that he dismissed the case merely for default. There is ample authority for the proposition that an, appeal should not be dismissed merely because the appellants do not appear to support the petition, but the appellate; Court should consider whether there was sufficient ground for interfering; which would imply judicial consideration of the appeal on the merits. In these circumstances I would set aside the order against which this application is directed and direct that the appeal be re heard by the present District Magistrate or any other Magistrate who may be empowered to hear the appeal and dispose of it according to law.