R.N.GURTU, J. - (1.) THIS appeal has come to me upon a difference of opinion between my brother Roy J. and my brother Mulla J. under Section 429 of the Code of Criminal Procedure.
(2.) APPELLANT Gokul was convicted on the 14th January, 1955 by the Additional Sessions Judge of Pilibhit under Section 395 of the Indian Penal Code and was sentenced to five years rigorous imprisonment. He submitted an appeal from jail under Section 420 of the Code of Criminal Procedure. The appeal was numbered as 435 of 1955 and was submitted to my brother Nasirullah Beg under Part III, Chapter XVIII, Rule 13 (2) of Rules of Court. That rule runs as follows : '(2) On receipt of such petition of appeal or application for revision the office shall examine it and endorse thereon a report containing as nearly as may be the particulars required under Rule 7 and the Registrar shall thereafter submit it to a Judge for orders. If the case is one which cannot be dealt with by the Judge sitting alone, the orders passed by the Judge shall be laid before another Judge for concurrence before they are issued. If the Judge does not dismiss the appeal or revision summarily and orders notice to be issued, the procedure prescribed for appeals and revisions presented in Court shall, as nearly as may be, be followed.' On the 16th March, 1955 an appeal from the same conviction was presented to this Court by the appellant through counsel under Section 419 of the Code of Criminal Procedure. On this appeal the office made the following endorsement: 'Jail appeal on behalf of Gokul has been received in this very case and has been submitted to the Hon'ble Judge for admission which has not been received back yet. This is an appeal for the second time on behalf of Gokul through counsel. In time up to 19 -3 -1955. Sd. R. N. Singh 17 -3 -1955. Then the Registrar made an endorsement to the following effect : 'Presented today. Lay before Court for orders on 22 -3 -1955. Sd. Illegible 13 -3 -1955. There is a further office report dated 22 -3 -1955 which is as follows : 'N. B. Jail appeal on behalf of Gokul has been dismissed by Hon'ble Beg J., placed below. Sd. R. N. Singh 22 -3 -1955. Then on 29th March, 1955 the appeal was laid for orders before my brother James who passed the following order : 'Appellant's learned counsel states that the appellant's appeal from Jail was previously dismissed summarily. A regular appeal has now been filed. It Ts hereby admitted and will be heard on merits in due course. There is also a prayer for bail, but, in view of the evidence of identification against the appellant, bail cannot be allowed for the pendency of the appeal. Sd. B. R. James.' The Judgment of my brother Beg on the jail appeal was sealed on 30th March, 1955. The date of my brother's judgment is not given at the foot of the judgment but it appears that that judgment was given on some date prior to 22nd March, 1955 and after 17th March, 1955. The represented appeal came up for final hearing before my brother Mulla J. who referred it on 23rd October, 1956 to a Division Bench because in his view the following important questions of law arose for determination : '1. Is the proviso to Section 421, Criminal Procedure Code, which makes a distinction between appeals filed under Section 419, Cr. P. C. and Section 420, Cr. P. C. justifiable or whether it violates Article 14 of the Constitution of India as it lays a basis for discrimination which is neither reasonable nor compatible with the principles of natural justice? 2. Has the High Court any powers to admit and hear a second appeal filed through a counsel after the first appeal filed by the prisoner from jail has been summarily rejected under the proviso quoted above? 3. Can it be said that the judgment of the High Court is not delivered until the seal of the High Court is affixed to such a judgment? and 4. Can the High Court review its own judgment under Section 561 -A, Cr. P. C.?' When the appeal went before the Division Bench there was a difference between the learned Judges. My brother Mulla's answer to the first question was that the inclusion of the words 'presented under Section 419, Cr. P. C.' has made the proviso unjustifiable and ultra vires of the Constitution of India, but these words could be severed from the proviso, which after this deletion becomes a salutary rule of law. My brother Roy did not consider that any part of the proviso to Section 419 was ultra vires of the Constitution of India. In regard to questions 2 and 3 my learned brethren were agreed that the High Court had no power to hear a second appeal filed through a counsel after the first appeal filed by the prisoner from jail had been summarily rejected. There was also an agreement in holding that the fixing of the seal of the High Court was not necessary to give validity to the judgment of the High Court. On the fourth question my brother Mulla was of the view that under certain circumstances the High Court could review its own judgment under Section 561 -A, Cr. P. C. My brother Roy was of the contrary view.
(3.) AFTER having expressed their views on the legal questions my brethren considered the represented appeal on merits and Mr. Justice Mulla expressed the view that the appellant's appeal should be allowed, that he was entitled to the benefit of doubt and that he should be acquitted. My brother Roy expressed the view that the appeal was without force and should be dismissed.;