K.C.Das Gupta, J. - (1.) The appellant was convicted by a Presidency Magistrate of an offence under Section 420 of the Indian Penal Code and was sentenced to rigorous Imprisonment for six months and to pay a fine of Rs. 300, in default to suffer rigorous imprisonment for three months more. The appeal was presented to this Court on the 7th of February, 1955. It came up for hearing before this Bench (Guha Ray and Sen JJ.) on the 22nd February, 1955. The prayer made in the memorandum of appeal was in these words : "In the circumstances the appellant prays that your Lordships will be pleased to admit the appeal, call for the records of the case and after hearing the parties and perusing the records allow the appeal and set aside the order of conviction & sentence and to pass such other order or orders as to your Lordships may seem fit and proper............" There was also a prayer for bail and stay of realisation of fine pending the hearing of the appeal. The learned Judges, passed an order, the relevant portion of which, for our present purposes, in these words: "This appeal will be heard only on the ground of sentence." Notice was issued on the State in accordance with this order and the records called for end the State has appeared through the learned Deputy Legal Remembrancer. When the appeal was opened before us by Mr. Eanerji, he drew our attention to the fact that though the appeal was directed against both the conviction and the sentence, the order passed was that the appeal would be heard only on the ground of sentence. He submitted, however, that in law, there could be no partial admission of an appeal and partial dismissal, and that it would be proper for us to read the order of this Court : "This appeal will be heard only on the ground of sentence", as not amounting to a partial dismissal of the appeal but only an order under Section 422 of the Criminal Procedure Code after the Court had decided not to dismiss the appeal summarily. Mr. Banerji has argued that the scheme of the legislation of the Criminal Procedure Code as embodied in Section 421 and 422 clearly shows that the Court to which the appeal is preferred cannot summarily dismiss the appeal partially nor admit the appeal in part. Section 421 provides that on receiving the petition of appeal. the appellate Court should peruse the same, and, "if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily." With the other portions of the section, we are not concerned for our present purposes. Section 422 provides that "if the Appellate Court does not dismiss ths appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, .. .. ......" Section 423 provides for the further procedure in the matter. These provisions do not thus provide for a partial dismissal or a partial admission. That this is the correct position in law can no longer be doubted-in view of the decisions of this Court in a number of cases of which mention may be made of the case of Nafar Sheikh V. Emperor, ILR 41 Cal 406 (A). There was also an observation in the decision of the Privy Council in the case of King-Emperor v Dahu Raut, 39 Cal WN 626 : (AIR 1935 PC 89) (B). which, in my opinion, should be considered as binding authority that there can be no partial summary dismissal of an appeal. In discussing the correctness of the procedure followed by this Court in reducing sentences passed on certain accused persons who had preferred appeals against their conviction & sentence, without issue of notice on the Crown, their Lordships pointed out that Chap. 31 of the Code was a complete Code relating to appeals and referred to the provisions of Sections 421, 422 and 423 of that Chapter. After setting out the relevant portions of Section 421 of the Criminal Procedure Code, their Lordships observed : "The terms of the section equally exclude the possibility of partial summary dismissal, e. g., in so far as the conviction is appealed against.'' It is therefore, no longer open to question that while an appellate Court may, acting under Section 421, dismiss an appeal in its entirety summarily, it cannot dismiss it in part either as regards conviction or as regards sentence.
(2.) Mr. Banerji has submitted that, if possible It would be proper to read the order passed by this Court on the 22nd February, 1955 in a way that makes it an order in accordance with law and that the only way to do it is to read it as not amounting to summary dismissal as regards the order of conviction.
(3.) I find it impossible, however, to read the order passed by this Court in any other way than that while the Judge thought that they were not prepared to dismiss the appeal summarily in accordance with Section 421 and therefore, were directing issue of notice and calling for records under the provisions of Section 422, they were at the same time giving a direction that, at the hearing, the appellant would be restricted to arguments only on the ground of sentence. The question then arises whether, in spite of this, it is open to the Court at a later stage, to allow arguments against the order of conviction passed by a Magistrate. I confess that I have felt some difficulty in the matter partly because perhaps the order of the 22nd February, 1955 was passed by Judges other than ourselves, and was at first inclined to think that after once an order of this nature had been passed, it is not open in this Court, but only to a superior Court to decide that the appeal can be heard as against the order of conviction also.;