Nathuni Ahir and Many Others vs The State

M.P. Varma, J.—Short facts giving rise to this application under sections 397 and 401 of the Code of Criminal Procedure, are as follows. The aforementioned petitioners were convicted by a Judicial Magistrate, second class, Siwan, under judgment dated 5.5.1977 in T.R. Case No. 290/77, G.R. No. 365/69, for offences under sections 225 and 147 of the Indian Penal Code and petitioner Nos. 1, 4 and 5 were also found guilty and convicted for the offence under section, 323 of the Indian Penal Code and they all were sentenced to various terms of imprisonment and also to pay fine. The petitioners preferred an appeal before the Sessions Judge at Siwan which was registered as Criminal Appeal No. 140 of 1977 which was put up for admission on 26.5.77. The learned Sessions Judge was not holding court on this date and, therefore, the appeal was put up before an Additional Sessions Judge Incharge for admission. The Additional Sessions Judge being not empowered to admit the appeal for hearing, passed a preliminary order for grant of bail to the petitioners and the appeal was posted for 30.5.77 for hearing on the question of admission. The appeal however, was put up before the learned Sessions Judge Shri S.M.M. Alam on 31.5.77, but nobody appeared on this date on behalf of the appellants to press the appeal for admission. The learned Sessions Judge, however, dismissed the appeal. The order reads as follows:

No one responds on behalf of the appellants and as such let this appeal be dismissed.

It was only after lapse of certain period that processes of the court were issued for realisation of the fine from the petitioners and it is stated that it was on this point of time that they could get the notice of dismissal of the appeal. They came over to Siwan and in consultation with their lawyers, as advised, they filed an application before the learned Sessions Judge for restoration of the appeal for being heard on merit. This was registered as Misc. Case No. 28 of 1979 which also was dismissed by the then Sessions Judge Shri G.N. Singh on the ground that the court was not authorised to revise an earlier order dismissing an appeal. The petitioners thereafter presented another appeal on the same cause which was registered as Criminal Appeal No. 99 of 1979 and at the same time a petition for condonation of the delay in presenting the appeal was also filed.

The learned Sessions Judge Shri G.N. Singh before whom the appeal was put up for hearing dismissed the same stating therein that the earlier appeal of the petitioners which was registered as Criminal Appeal No. 140 of 1977 was rightly dismissed by the then Sessions Judge Shri S.M.M. Alam u/s 384 of the Code of Criminal Procedure as in spite of the reasonable opportunities given to the petitioners, nobody appeared in court to press the appeal.

It is against the earlier order dated 31.5.77 by which the Criminal Appeal No. 140 of 1977 was dismissed, that this application in revision has been filed.

A petition u/s 5 of the Limitation Act has also been filed explaining the delay in coming to this Court in revision. The Bench admitting this application kept the petition open for being considered by the Bench finally hearing and disposing of this criminal revision.

It has been stated on behalf of the petitioners that they could not come earlier to this Court in revision against the impugned order as they had no notice regarding the dismissal of their appeal (i.e. Criminal Appeal No. 140 of 1977) which was dismissed on 31.5.77. They could get the notice of the dismissal only when the processes were issued for realisation of fine from them. It is further stated that soon thereafter the petitioners rushed to Siwan and on getting legal advice from their lawyer they filed an application for restoration of the criminal appeal which was registered as a criminal miscellaneous case and was also dismissed. It is also stated that the petitioners did not come to this Court earlier as according to the lawyer''s advice, it was thought advisable to present another appeal against the earlier order of conviction passed on 5.5.1977 in TR Case No. 290/77, GR No. 365/79, by which the Judicial Magistrate had convicted the petitioners for various charges referred to above.

Since the second appeal i.e. Criminal Appeal No. 99 of 1979 was also dismissed on the ground that the previous appeal against the impugned judgment of conviction stood dismissed u/s 384 of the Code of Criminal Procedure, the petitioners could not have presented another appeal and it was under this circumstance that the petitioners under the advice of their lawyer came to this Court in revision u/s 397 and 401 of the Code of Criminal Procedure against the earlier order dated 31.5.77 by which the then Sessions Judge Shri S.M.M. Alam dismissed the Criminal Appeal No. 140 of 1977.

On hearing the learned counsel for the petitioners and also counsel for the State and on perusal of the application u/s 5 read with section 14 of the Limitation Act, the delay in presenting this application was condoned and the application was heard on merit.

The learned counsel has stated that from the impugned order dated 31.5.77, it is patently clear that the appeal of the petitioners was dismissed for default. The impugned order shows that since there was no response on behalf of the appellants, it was dismissed as such. It is contended on behalf of the petitioners that the learned Sessions Judge was wrong in dismissing the appeal in such a summary manner without assigning adequate reasons for the same. It has also been contended that the court below did not afford reasonable opportunity to the petitioners or their counsel of being heard in support of the facts agitated in appeal against the judgment of conviction.

Counsel for the State, on the other hand, has contended that it was expected for the appellants, i.e. the petitioners in this case, to be vigilant in the court below and no court it supposed to wait for the parties to turn up for arguing the case. The impugned order shows that reasonable opportunity was given but in spite of the call nobody responded on behalf of the petitioners and the learned Sessions Judge having no alternative dismissed the appeal.

It is true that any person convicted on a trial may appeal against the order of conviction and sentence passed by the trial court. The appeal so presented u/s 382 of the Code of Criminal Procedure shall be made in the form of a petition in writing to be presented by the appellant or by his pleader and the law requires that every such appeal shall be accompanied by a copy of the judgment or the order appealed against. In case if the person convicted is in jail, he may present an appeal through the officer in charge of the jail who shall thereupon forward such petition to the appellate court. If an appeal is so presented either u/s 382 or 383 of the Code of Criminal Procedure, the appellate court, if upon examining the petition of appeal and the copy of the judgment received, considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily, but in so doing the appellant or his pleader shall be given a reasonable opportunity of being heard in support of the same. In case, even if I accept the contention raised by the counsel for the State that reasonable opportunity was given to the appellants-petitioners, I must say that the appellate court could have passed the order of dismissal of the appeal only on examination of the petition itself and also on perusal of the judgment accompanying the memo of appeal and the appellate court should have applied its mind to the facts and should have dismissed the same summarily if there was no sufficient ground for interfering with the judgment under appeal. In the instant case, it is patently clear that the learned Sessions Judge dismissed the same for default on the part of the appellant-petitioners but did not wait to examine the petition of appeal or the copy of the judgment accompanying the appeal. In other words, the learned Sessions Judge did not apply his mind to find out whether there were grounds for interference or the appeal was devoid of any merit as there being no sufficient ground for interfering with the judgment under Appeal. Section 384 of the Code of Criminal Procedure authorises the appellate court to dismiss an appeal summarily, if on examining the memo of appeal and the judgment, the court does not find sufficient ground for interference and it is expected that reasonable opportunity should be given to the appellant or his pleader in an appeal presented either u/s 382 or section 383 of the Code of Criminal Procedure.

To sum up I find and hold apart from not giving reasonable opportunity to the petitioners, the learned Sessions Judge did not in fact apply his mind to the facts of the case on perusal of the petition of appeal and the impugned judgment against which the appeal was presented and there is no finding whether there were grounds for interference or not. In case if an appeal is not dismissed summarily u/s 384 of the Code of Criminal Procedure, the appellate court shall cause a notice of time and place to be notified at which the appeal presented would be heard. In the circumstances referred to above, the impugned order dated 31-5-77 (passed in Criminal Appeal No. 140 of 1977) is set aside and the appeal is restored to its original file, and it is hereby directed that the court below before whom the appeal is placed shall proceed to dispose it of in accordance with law. The application is accordingly allowed.