- (1.) AN appeal was filed by Mulia, Kalia and Narain under sec. 419 of the Code of Criminal Procedure against the conviction of the first two under sec. 395 and of the third, vis. , Narain, under sec. 395 read with sec. 397 of the Indian Penal Code, and sentences of 7 years' rigorous imprisonment each passed by the Court of Sessions Judge, Jaipur District, on the 27th of October, 1951. Subsequently Mulia, Kalia and Narain along with Rehman filed a joint appeal from jail under sec. 420 of the Code of Criminal Procedure. The appeal under sec. 419 of the Code of Criminal Procedure was received on the 17th of November, 1951, and the jail appeal on the 5th of December, 1951: The jail appeal came up for decision before a Division Bench of this Court on the 17th of December, 1951, and it-was summarily rejected. At that time, the fact of another appeal under sec. 419 of the Code, of Criminal Procedure, on behalf of Mulia, Kalia and Narain was not brought to the notice of the Court. Subsequently, the appeal of Mulia and others under sec. 419 was listed for hearing, and it was urged by the learned Government Advocate that, their appeals had been decided by this Court, and that decision was final. The appeal under sec. 419, therefore, could not be heard again. The learned counsel for the accused persons, however, contended that under sec. 421 of the Code of Criminal Procedure it was necessary that the appellants or their pleader should have been allowed a reasonable opportunity of being heard, and as such an opportunity was not allowed, the decision given on the jail appeal could not take away the right of the appellants of being heard. The decisions in Emperor vs. Mewa Ram and others (1) (A. I. R. 1926 All. 178.), Lachhman Chamar vs. Emperor (2) (A. I. R. 1934 All. 988 (1)), Shahu and others vs. Emperor (1) (A. I R. 1935 Sind 84.), and Bhawani Dehal vs. Emperor (2), have been cited in support of the argument of the learned counsel for the appellants.
(2.) THE decisions in Emperor vs. Mewa Ram and others (3) (A. I. R. 1926 All. 178.), Bhawani Dehal vs. Emperor (2) ( (1906) IV C. L. J. 373.), Lachhman Chamar vs. Emperor (4) relate to the decisions of the Courts of Sessions Judges, and the Allahabad High Court in exercise of its revisional jurisdiction set aside the previous judgments of those courts, and directed the courts to re-hear the appeals under sec. 419 of the Code of Criminal Procedure after allowing a reasonable opportunity of being heard to the appellants or their counsel. In course of the judgment in Lachhman Chamar vs. Emperor (4), the following observations appear: - "the dismissal of the jail appeal must be deemed to be a provisional dismissal in no way affecting the right of the appellant to have his counsel heard under the proviso to sec. 421, Criminal P. C. , in connection with the appeal filed under sec. 419, Criminal P. C. THE practice in the High Court is that a summary dismissal of a jail appeal by a learned Judge does not in any way debar the hearing of an appeal filed by counsel. Indeed, the fixing of the seal is delayed till the period of limitation is over. " As the Court in that case exercised its revisional powers in setting aside the judgment of the learned Sessions Judge and in directing that Court to re-hear the appeal under sec. 419, no question arose about the practice of the High Court in that case; but the observations of the Court, which have been reproduced above, are significant on this point. With due respect to the learned Judge, who made those observations, we do not think that the decision of a Judge of the High Court in summary rejection of an appeal under sec. 420 of the Code of Criminal Procedure would be in the nature of a provisional decision. THE matter has been more fully discussed in the judgment in Chandrika vs. Rex (5), which is a Single Bench decision, and it has been held that in exercise of its powers under sec. 561a of the Code of Criminal Procedure, the High Court can hear an appeal filed under sec. 419, even after a jail appeal under sec. 420 has been rejected summarily by a Judge of the same Court, and sec. 369 of the Code of Criminal Procedure is not a bar in the exercise of the powers of Court under sec. 561 A. THE basis of the decision in Chandrika vs. Rex (5) (A. I. R. (36) 1949 All. 176.) is different from the observations referred to above in the case Lachhman Chamar vs. Emperor (4) (A. I. R. 1934 All. 988 (1) ). In this case reference has been made to a decision of the Madras High Court in In re Tadi Soma Naidu and another (6) (47 Mad. 428 (A. I. R. (11) 1924 Mad. 640 ).) and a decision of the Lahore High Court in Muhammad Sadiq vs. THE Crown (7) (A. I. R. (12) 1925 Lah 355. ). THE following observations in the Madras and Lahore decisions have been reproduced in the aforesaid Allahabad decision (5) : - "an order to the prejudice of an accused, without affording him an opportunity of being heard as, for instance, where by mistake a case was posted on a day anterior to that fixed in the notice to the accused and the sentence was enhanced in his absence' is null and void ab initio, as being one passed without jurisdiction and that the proper course in such a case is to proceed with the matter afresh after proper notice to the accused. " (In re Tadi Soma Naidu and another, 47 Mad. 428 ). "where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order dismissing the appeal must be held to have been passed without jurisdiction and the Court has an inherent power to make an order that the appeal should be re-heard after giving the appellant or his counsel a reasonable opportunity of being heard in support of the same. " (Muhammad Sadiq vs. THE Crown, A. I. R. 1925 Lahore 355 ). THE Allahabad High Court has not gone to the length to which the Madras and Lahore decisions have gone in holding the decision of the High Court to be without jurisdiction, but it has been held that under such circumstances the exercise of jurisdiction by the High Court should be considered to be irregular, and the Court in- exercise of its inherent powers under sec. 561a can re-hear the case, and decide it according to law. We are in respectful agreement with the views expressed in Chandrika vs. Rex (1) (A. I R. (36) 1949 All. 176. ). Sec. 369 of the Code of Criminal Procedure provides that: - "save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error. " In the present case, it cannot be said that there is any clerical error, but under sec. 561a it has been provided that: - "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. " THE provision of sec. 561a, therefore, which appears in the Code, itself, controls the provision of sec. 369 of the Code of Criminal Procedure, and the High Court is competent to re-hear the appeal after allowing a reasonable opportunity to the appellant or his counsel, even though the jail appeal of the same appellant had been summarily rejected previously. THE case of the appellants here is much stronger, because their appeal under sec. 419 was pending at the time they filed a jail appeal. It was, therefore, obligatory for the Court to allow a reasonable opportunity of being heard to the appellants or their counsel before their appeal could be disposed of. As no such opportunity was given to the appellants at the time of the summary rejection of this appeal, the decision of the jail appeal was not in accordance with law, and it may be said to have been made in irregular exercise of the jurisdiction of this Court. THE matter can be set right by this Court in exercise of its powers under sec. 561a to secure the ends of justice. We are, therefore, of opinion that the appeal, which has been filed under the provisions of sec. 419 of the Code of Criminal Procedure, can be heard in accordance with law, in spite of the fact that the jail appeal of the appellants has been summarily rejected by this Court. The appeal of Mulia, Kalia and Narain was, therefore, reheard in the presence of their counsel and the Government Advocate. It was urged on their behalf that there were certain discrepancies in the statements of the prosecution witnesses relating to the weapons used by the accused appellants in the commission of the dacoity. Mst. Chhabbo has said that Mulia was armed with lathi, Narain with a gun, and Kalia had a gandasa. Mst. Badami, on the other hand, said that Kalia and Mulia had lathis, and Narain had a pharsi at the time of the commission of the offence. Mst. Basanti simply says that Mulia and Kalia had lathis. Mishria says that Narain had a pharsi, and the rest of the accused were armed with lathis. Jai Lal also says that Narain had a gandasa, and the remaining accused were armed with lathis. Kanhaiya has said that Narain had a pharsi, and the remaining accused were armed with lathis. Mst. Batool has stated that Narain had a pharsi, and the other accused had lathis. The statements of the prosecution witnesses, it is contended, should not be believed, because there are inconsistencies in their statements. The next point that has been urged on behalf of the appellants is that the conviction, which has been based on the evidence of identification only, is not proper. In support of this decisions in Hindu Singh vs. The State (2) (1952 R. L. W. 130.), Emperor vs. Irjan and others (3) (A. I. R. 1927 Cal. 820.), Chanan Singh vs. Emperor (4) (A. I. R. 1933 Lah. 299.) have been referred to. Lastly, it has been said that the sentence awarded is excessive. We have read the prosecution evidence. It is true that there are discrepancies in the statements of the prosecution witnesses on the point of arms carried by each one of the accused persons at the time of the commission of the dacoity. Some of the prosecution witnesses have said that Narain was armed with a gun, the others have said that he was armed with a pharsi, and a third set of witnesses has said that he was armed with a gandasi. The learned trial Court has applied sec. 397 of the Indian Penal Code against Narain on the ground that he was armed with a pharsi at the time of the commission of the dacoity. In view of the discrepancies in the statements of the prosecution witnesses on the point of the arm which was carried by Narain at the time of the dacoity, it cannot be safely said that he was armed with a pharsi. We are, therefore, of the opinion that sec. 397 of the Indian Penal Code cannot be safely applied to the case of Narain. As regards the other points, there are no inconsistencies in the statements of the prosecution witnesses. They have all said that ten or twelve dacoits came at mid-night; gun shots were fired, and the dacoits at first went to the huts of singiwalas, and the occupants of those huts were beaten, and as there was no property worth looting, the dacoits came to the huts of the complainants. Certain persons were beaten, and some property was taken away. Having heard the cries of the complainants, some people from the nearby village came, and among them one was Jai Lal and other his father Phoolia. The dacoits fired a shot at Jai Lal, and injured him. Phoolia having seen a gun-shot being fired, scared away. A report was made by Vazira at the police station on the next day at about 12 noon. There is no reason to disbelieve the evidence of the prosecution witnesses. The learned counsel for the appellants has said that there was enmity between the prosecution witnesses and the appellants; but there is nothing on the record of the case to show that it was so. Under these circumstances the argument of the learned counsel relating to enmity is not supported by the record of the case. Some of the complainants received severe injuries, and there appears no reason why they should falsely implicate the accused persons. In the first information report, the names of the appellants were stated. The appellants belong to the same village, and were known to the prosecution witnesses from before. It was a full-moon-lit night, and there was sufficient opportunity for the witnesses to have seen the features of the appellants and to have recognised them. The cases, therefore, cited by the learned counsel for the appellants do not apply to this case. In those cases the dacoits were not known to the witnesses from before, and there was insufficient light, whereas in the present case there was good light, and the accused persons were known to the witnesses from before. Under the circumstances of this case, in our opinion, the ends of justice would be met, if the accused persons, Mulia, Kalia and Narain, are sentenced to five years' rigorous imprisonment under sec. 395 of the Indian Penal Code. This appeal is, therefore, partially allowed. The conviction of Narain under sec. 397 of the Indian Penal Code is set aside. The conviction of all the three appellants Mulia, Kalia, and Narain, under sec. 395 of the Indian Penal Code is upheld, but their sentences are reduced from seven years to five years' rigorous imprisonment. There is no appeal on behalf of Rahman, and his Jail appeal has already been dismissed. Therefore, there will be no order in his case. . ;