Emperor v. Bansgopal

Bennet, J.:— This is an application in revision against an order of the learned Sessions and Sub-ordinate Judge of Cawnpore, dated the 15th of July, 1933, passed on an appeal which was filed before him by an accused person from a conviction by a Magistrate under section 225B of the Indian Penal Code and a sentence of 6 months' rigorous imprisonment. The facts are as follows. After the conviction by the Magistrate an appeal was presented on behalf of the accused to the Sessions Judge on the 1st of June, 1933. As there was no copy of the judgment, which is required by section 419 of the Criminal Procedure Code, the learned Sessions Judge allowed 10 days for a copy of the judgment to be filed. On the 16th of June, 1933, the learned Sessions Judge passed the following order: “No steps have been taken to complete this appeal by filing a copy of the judgment. I therefore dismiss the appeal. The appellant must now surrender to his bail.” Subsequently on the 30th of June, 1933, an application was made on behalf of the accused stating that the appellant's counsel and the applicant could not know the date fixed for filing a copy and that a copy of the judgment was herewith filed and asking that the appeal should be heard on the merits. On this the learned Sessions Judge passed the following order on the 21st of June, 1933. “I see that copy of the judgment was applied for within the time allowed by me. I will therefore admit the appeal, subject to objection. It is transferred to Sessions and Subordinate Judge for disposal.” When the appeal was heard by the learned Sessions and Subordinate Judge, counsel for the Crown argued that the court had no jurisdiction to hear the appeal because section 369 of the Criminal Procedure Code prevented the sessions court from altering or reviewing its judgment. It was claimed that the order of the 16th of June, 1933, amounted to a judgment dismissing the criminal appeal and therefore that judgment could not be subsequently altered. The question is whether the order of the 16th of June, 1933, does amount to a judgment such as is contemplated by section 369. Learned counsel argued that under the provisions of section 367 of the Criminal Procedure Code every judgement should contain certain details as to the point or points for determination, the decision thereon and the reasons for the decision. But that section states that its provisions may be excepted by other provisions of the Code and as a matter of fact a court may summarily dismiss a criminal appeal under section 421 of the Criminal Procedure Code without giving the points for determination or the reasons for the decision.

The order of the 16th of June, 1933, does not come under section 421 of the Criminal Procedure Code as an order passed by the appellate court on perusing a petition of appeal and the copy of the judgment and considering that there is no sufficient ground for interference, because no copy of the judgment was before the court. There are no definite rules laid down in regard to the action to be taken by the appellate court where the petition of appeal does not comply with section 419 of the Criminal Procedure Code, i.e where there is 110 copy of the judgment attached to the appeal. But it appears to me that it is open to the appellate court to take action where the copy is not supplied. The question is what is the nature of that action. I consider that the action taken in the present case may be correctly described as rejection of the appeal and not as dismissal. The appeal is rejected because it did not comply with the provisions of section 419. A similar order would have been passed for the rejection of the appeal if the appeal had been filed beyond the period of limitation. In both cases 1 consider that the order rejecting the appeal cannot be held to be an order amounting to a judgment within the meaning of section 369. Under that section it is laid down in various rulings that the section applied to judgments and not to orders of rejection on the ground of formal defects. It has been so decided in Ibrahim v. Emperor(1), that where a criminal court dismisses an appeal for default of appearance, it is not a judgment and that the judgment contemplated by section 369 is a decision on the merits. In that case a criminal revision had been dismissed for default of appearance and it was held that the High Court could admit a revision again and dispose it of on the merits. Under the circumstances I consider that the order of the Sessions and Subordinate Judge refusing to consider this appeal on the merits is a mistaken order and accordingly I set that order aside and I remand this criminal appeal to the Sessions judge of Cawnpore for disposal on the merits.