EMPEROR Vs. DAHU RAUT
LAWS(BOM)-1935-3-6
HIGH COURT OF BOMBAY
Decided on March 01,1935

EMPEROR Appellant
VERSUS
DAHU RAUT Respondents

JUDGEMENT

Thankerton, J. - (1.) THESE are consolidated appeals by special leave from, four judgments of the High Court of Judicature at Fort William in Bengal dated respectively May 29, May 29, May 31, and June 7, 1933, which reduced the sentences passed on the respective respondents by the respective criminal Courts of first instance on March 25, February 28, April 1, and March 18, 1933.
(2.) IN each case the respective respondents presented petitions of appeal to the High "court against both the conviction and the sentence, in exercise of the statutory right conferred on them by the Criminal Procedure Code, and the question in the present appeals is whether the orders of the High Court in each of the four cases, by which the sentences were reduced, were in conformity with the requirements of the Code. The Crown, as appellant, maintains that the orders were passed in violation of the statutory provisions and were beyond the jurisdiction of the High Court. The Crown desires to test the validity of the procedure adopted by the High Court, but does not ask for any interference with the reduction of the sentences made by these orders. The sections of the Code which prescribe the procedure to be followed on presentation of a petition to the appellate Court in this instance, the High Court,-are as follows : 419. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment "or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367. 420. If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court. 421. (1) On receiving the petition and copy under Section 419 or Section 420, the Appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily : Provided that no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. (2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so. 422. If the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the Local Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under Section 417, the Appellate Court shall cause a like notice to be given to the accused. 423. (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 417, the accused if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction, (1) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of Section 106, Sub-section (3), not so as to enhance the same; (c) in an appeal from any other order, alter or reverse such order ; (d) make any amendment or any consequential or incidental order that may be just or proper. (2) Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. The following facts are common to each of the four cases :-No order was passed for summary dismissal of the appeal under Section 421 (1) ; no notice was sent in terms of Section 422 to the Legal Remembrancer, who is the officer appointed by the Local Government; the record was not sent for, as provided by Section 423 (1) ; in each case an advocate was present on behalf of the accused, when the order was made by the High Court, but none was present on behalf of the Crown.
(3.) THERE were slight variations in the form of the orders. In the case of two of the orders it was stated that the appeal was admitted, while a third order stated "this appeal is allowed on the question of sentence only" ; the fourth order is silent on this point. But all four orders are expressed as pronounced in exercise of the Court's criminal appellate jurisdiction. On becoming aware of what had been done, the Deputy Legal Remembrancer approached the Acting Chief Justice (Sir Charu Chandra Ghose) on the matter, and on August 8, 1933, the latter passed an order in the following terms : This matter was mentioned before me on Thursday last by the Deputy Legal Remembrancer. I have no jurisdiction whatsoever to interfere with the orders of the Division Bench, As Mr. Justice Lort-Williams has written to me as Chief Justice that he would like to look into the matter further, I direct that the two learned Judges referred to on this page (Lort-Williams and Mcnair, JJ.) do form a Division Bench on Friday the 11th August at 4 p. m. , when the Crown, if so advised, may mention the matter to the learned Judges. Subsequently, the matter was mentioned before the two learned Judges named in the above order, when the Advocate General, on behalf of the Crown, submitted that the orders in the four petitions of appeal were made without jurisdiction in respect that they had been passed without notice to the Legal Remembrancer and without sending for the records, that they were therefore null and of no effect, and that the petitions should be disposed of according to law. Lort-Williams J. passed one judgment in all four cases on August 29, 1933, and Mcnair J. delivered a separate judgment on August 31, 1933. Both of the learned Judges held that they could not review or alter their orders, except in regard to clerical errors within the meaning of Section 369 of the Code, but they differed as to the existence of such errors in the orders in question, and no alteration or correction was made.;


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