Decided on July 16,1968

STATE Appellant


- (1.) The respondent was acquitted of a charge under S.409 of the Penal Code; and the State has filed the appeal. The appeal has been admitted; and in spite of the best efforts of the State, notice in the appeal has not been served on the respondent: his whereabouts are not known.
(2.) The latter part of S.422 of the Code of Criminal Procedure applies to a case like this; and the appellate court shall cause a notice to be given to the accused. This provision is mandatory, which appears from the language of the section itself; and the Supreme Court has also said so in Mohammed Dastagir v. The State of Madras ( AIR 1960 SC 756 ). In that case, a counsel wrote to the Registrar of the Madras High Court that he had instructions to appear for the accused. Thereafter, the Registrar issued a notice to him when the appeal became ready; and the Registrar also issued a notice to the accused. The counsel also appeared before the High Court at the time of the hearing of the appeal: nevertheless, the appeal was allowed and the accused was convicted and sentenced. In the appeal filed by the accused before the Supreme Court, it was argued that the provision of S.422 of the Code of Criminal Procedure was not complied with. In considering this contention, the Supreme Court said, inter alia, that S.422 did not speak of the notice being served on the accused: it only stated that notice was to be given to the accused. The Supreme Court consequently held that, in the circumstances mentioned above, service on the counsel of the accused was good and sufficient.
(3.) In the above decision, the Supreme Court referred to an earlier decision of the same Court in Crl. Appeal No. 1 of 1950 (an unreported decision). In that decision, the Supreme Court said that S.422 of the Code of Criminal Procedure was mandatory; and that compliance with it was an essential preliminary to the hearing of the appeal. The Supreme Court said further that the arrest of the accused under a non bailable warrant in such a case could not be the substitute for a notice of appeal as required by S.422. In Crl. Appeal No. 1 of 1950, the father of the accused instructed a lawyer to appear and the lawyer appeared too. However, the appellate court set aside the order of acquittal and convicted the accused; and against that the accused filed Crl. Appeal No. 1 of 1950 before the Supreme Court. Ultimately, the Supreme Court set aside the conviction and sentence and remanded the appeal for rehearing to give an opportunity to the accused to be heard.;

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