P.N.Bakshi - (1.) :-Padam Singh sand Bhikam Singh stood sureties for Smt. Gulabo, who had been tried for a criminal offence. On the date fixed Smt. Gulabo did not appear before the trial court, with the result that the bonds of sureties were forfeited and notices were issued to them to show cause. An application was filed on behalf of Bhikam Singh that Smt. Gulabo had died on 5-1-1980. He was given an opportunity to produce evidence in support of this allegation. 17th June 1980 was fixed for evidence. On that date Bhikam Singh did not appear. It is said that Padam Singh had also died by then. However, the position was that on the failure of the surety to produce evidence in support of the allegation of death of Smt. Gulabo, the instant warrants have been issued by the trial court for the recovery of the bonded amount. It appears that an appeal was filed by Bhikam Singh before the Sessions Judge, Bulandshahar under Sec. 449 CrPC. The Sessions Judge has dismissed the appeal summarily on 24th July 1980 in exercise of his powers under Sec. 384 CrPC. Hence this revision.
(2.) I have heard counsel for the parties and have also perused the impugned orders. The applicant's counsel has submitted that the Sessions Judge had no jurisdiction to dismiss the appeal summarily without calling for the record of the case. Reliance for this purpose is placed upon Sec 384 (2) CrPC (New) which runs to the effect that before dismissing an appeal under this section the Court may call for the record of the case. Learned counsel for the applicant has pointed out that under the old Criminal Procedure Code Sec. 421 (2) corresponded to the present Sec. 384 (2) CrPC. Under Sec. 421 (2) old it was laid down that 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. The argument is that the expression 'but shall not be bound to do so' has been deleted in the New Code of Criminal Procedure in the equivalent Sec. 384. This argument appears to have great force. Apart from that learned counsel for the applicant has also cited before me a decision of the Supreme Court in Munir Sayed Ibna Husain v. State of Maharashtra, AIR 1976 SC 1992 in which it has been held that: "The power of summary rejection of a criminal first appeal under Sec. 421 should be only exercised when the court is satisfied, from a perusal of the judgment as well as the record, that there is absolutely no reasonable possibility of its success for the reasons mentioned in the order." It is noticeable that this decision by the Supreme Court was given when the old Code of Criminal Procedure was in existence and Its phraseology had not been amended. A fortiori it goes without saying tthat now the Legislature has thought it fit to delete the words 'but shall not be bound to do so' in the new Sec. 384 (2) CrPC. The only reasonable inference is that the Legislature now intends that in the case of summary dismissal of the appeals, the record of the case must be called for by the subordinate courts. Reading Sec. 384 CrPC as a whole it is obvious that before an appeal can be dismissed summarily not only the record has to be sent for but also an opportunity has to be given to the accused of hearing, and the order of dismissal is to be passed after perusing the record and also recording reasons therefor if such order is passed by a Sessions Court or the Chief Judicial Magistrate. Only then such a summary dismissal can be deemed to be a dismissal in the eyes of law. This appears to be the view of the majority also in the Supreme Court case reported in Sita Ram v. State of U. P., AIR 1979 SC 745." In order to verify the question whether the record had been called for by the Sessions Judge while dismissing the appeal summarily, I had summoned the record of the case. From the order sheet it is clear that the record was not summoned by him prior to the summary dismissal of the appeal. I would have myself decided this matter, but I am afraid that exercising these powers would not, in the circumstances of the case, serve the cause of justice. It is more appropriate that the appeal should be decided by the Sessions Judge himself, in accordance with the procedure prescribed by law.
(3.) THIS revision application is accordingly allowed. The order of the Sessions Judge dated 24-7-1980 is hereby set aside and the case is remanded back to the Sessions Judge for deciding the case after perusing the record. The record of the case shall be sent down to the Sessions Judge immediately for the aforesaid purpose. Needless to point out that it shall be open to the Sessions Judge to decide the appeal summarily after giving an opportunity to the accused applicant and after perusing the record. In these circumstances, it is advisable that this case be disposed of by another Sessions Judge. Revision allowed.;