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In Re: Chirumamilla Tirupatayya and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ1218
AppellantIn Re: Chirumamilla Tirupatayya and anr.
Excerpt:
.....notice of the application for suspension of the sentence or for bail should be given to the public prosecutor. when the state government is represented by the public prosecutor and notice is directed to be given to him under section 422 in the appeal, 1 fail to see why the court is not entitled to give notice to him of the interlocutory applications filed by the appellant for suspension of the sentence or for bail pending appeal. , that principles of natural justice require that no man should be condemned unheard. next there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect..........of the application for suspension of sentence under section 426, cr. p. c., should be given to the public prosecutor, and (ii) whether the court is entitled to give notice to the public prosecutor before the appellant is released on bail or the sentence is suspended, pending the criminal appeal.2. the petitioners herein applied for suspension of the sentence of fine of rs. 100 passed against each under section 4 (1) (b) of the madras prohibition act before the sessions judge, guntur, pending a criminal appeal filed before him. the sessions judge directed notice to be given to the public prosecutor. instead of serving notice, the petitioner's advocate filed an elaborate memo to the effect that no notice was necessary. the sessions judge held that as the notice directed by him was not.....
Judgment:
ORDER

Umamaheswaram, J.

1. Two questions arise for consideration in this revision case (a) whether advance notice of the application for suspension of sentence under Section 426, Cr. P. C., should be given to the Public Prosecutor, and (ii) whether the Court is entitled to give notice to the Public Prosecutor before the appellant is released on bail or the sentence is suspended, pending the Criminal appeal.

2. The petitioners herein applied for suspension of the sentence of fine of Rs. 100 passed against each under Section 4 (1) (b) of the Madras Prohibition Act before the Sessions Judge, Guntur, pending a criminal appeal filed before him. The Sessions Judge directed notice to be given to the Public Prosecutor. Instead of serving notice, the petitioner's advocate filed an elaborate memo to the effect that no notice was necessary. The Sessions Judge held that as the notice directed by him was not given to the Public Prosecutor, he had no alternative but to reject the application for suspension of the sentence of fine, The petitioners have thereupon preferred this petition to this Court.

3. The first question raised by Sri T. V. Sarma, on behalf of the petitioners was that the practice and convention referred to by the Sessions Judge in paragraph 5 of the order as prevailing in Guntur district, i.e., to give advance notice of the application for suspension to the Public Prosecutor, is not warranted by the provisions of the Code of Criminal Procedure and that he was consequently under no obligation to give previous notice. This contention appears to be perfectly correct. There is no provision in the Criminal Procedure Code or in the Criminal Rules of Practice requiring the appellant to give advance notice before the appeal is admitted. The learned Public Prosecutor conceded that there is no such practice prevailing in the Andhra High Court. Mr. Justice Govinda Menon with his vast experience of criminal law and procedure observed in Balasundara Pavalar v. State : AIR1951Mad7 , as follows:

As a matter of practice it is very seldom that in an application for bail pending the hearing of an appeal by a convicted person that notice is given to the Public Prosecutor and he is heard.

4. Section 426, Criminal Procedure Code, is in the following terms:

Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in wilting, order that the execution of the sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond.

5. The section does not provide for any previous notice being given to the Public Prosecutor, It does not also enact that in every appeal the Court should give notice to the Public Prosecutor before suspending the sentence or releasing the accused on bail. The practice referred to by Mr. Justice Govinda Menon is not therefore opposed to the provisions of the Criminal Procedure Code. I am therefore clearly of opinion that the Sessions Judge erred in holding that according to the practice and convention prevailing in Guntur district, advance notice of the application for suspension of the sentence Or for bail should be given to the Public Prosecutor.

6. The next question that arises for decision is, whether it is open to the appellate Court to direct notice in any particular case to the Public Prosecutor before an order is passed under Section 426, Criminal Procedure Code. Sri Sarma contended that the appellate Court has no such power as Section 426, Criminal Procedure Code, does not, in terms, provide for issuing any such notice. In support of his contention, he invited my attention to the decision of the Privy Council in The King Emperor v. Dahu Raut 1935 Mad WN 469 at p. 472 : AIR 1935 PC 89 at p. 91 (B). Lord Thankerton in delivering the judgment of the Privy Council held that without giving the statutory notice under Section 422, Criminal Procedure Code, to the Public Prosecutor the Court was not entitled to reduce the sentence. The observations relied on by the learned advocate are as follows:

The jurisdiction of the Court in these matters is statutory, and the Court, however admirable its intentions, is not entitled to go outside these provisions and - in effect - to legislate for itself.

Chapter XXXI of the Code, as its title bears, is a complete code relating to appeals, and the appellate Court referred to includes other Courts than the High Court.

7. Those observations do not in any way affect the jurisdiction or the right of the appellate Court, in proper cases, to issue notice to the Public Prosecutor before exercising the powers under Section 426, Criminal Procedure Code. Section 419, Criminal Procedure Code, prescribes the form of the appeal, Section 420 relates to the filing of appeals when the appellant is in jail, Section 421 enables the Court to dismiss the appeal summarily. Rule 302 of the Criminal Rules of Practice sets out what the judgment passed under Section 421, Criminal Procedure Code, should contain, Section 422 prescribes that when the appeal is not dismissed summarily but is taken on file, the Court should 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 the appeal will be heard. It also provides that the Court should, on the application of such officer, furnish him with a copy of the grounds of appeal. When the State Government is represented by the Public Prosecutor and notice is directed to be given to him under Section 422 in the appeal, 1 fail to see why the Court is not entitled to give notice to him of the interlocutory applications filed by the appellant for suspension of the sentence or for bail pending appeal. There is nothing in the language of Section 426, Criminal Procedure Code, prohibiting the issue of notice to the Public Prosecutor in such interlocutory applications. If the case is either complicated or the Court feels that it is not able to make up its mind, whether the sentence should be suspended or bail should be granted, it may not follow the general practice referred to by Mr. Justice Govinda Menon but direct notice to the Public Prosecutor. Section 426 also requires that the appellate Court should record reasons in writing for suspending the sentence or for releasing the appellant on bail. In the majority of cases, as already stated, it may be possible for the appellate Court to pass necessary orders without giving notice to the Public Prosecutor. But I am unable to agree with the learned advocate for the petitioners that in no case is the appellate Court entitled to give notice to the Public Prosecutor when passing orders under Section 426, Criminal Procedure Code. As stated supra, the applications for suspension of sentence or for releasing the appellant on bail are only interlocutory applications in the appeal and the Public Prosecutor may rightly represent the State Government. I do not think that any specific provision is necessary to empower the Court to give such notice in interlocutory applications when the State Government is represented by the Public Prosecutor and notice to him in the appeal is mandatory under the terms of Section 422, Criminal Procedure Code. In the above view, it is unnecessary for me to discuss the scope and effect of the terms of Section 561A, Criminal Procedure Code, relied on by the learned Public Prosecutor.

8. The learned Public Prosecutor invited my attention to the decisions in Kaveri Ammal v. Emperor 1934 Mad WN 98 (C) and Joginder Singh v. Amar Singh AIR 1952 Pepsu 97 (D), in support of the proposition that even though notice is not provided under Section 528, Criminal Procedure Code, it was held that notice should be given to the person affected. Those decisions are based on principles of natural justice referred to by Vivian Bose, J., in Sangram Singh v. Election Tribunal : [1955]2SCR1 , viz., that principles of natural justice require that no man should be condemned unheard. The relevant observations are as follows:

Now a Code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

Next there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

9. Those decisions referred to by the Public Prosecutor may not directly apply to this case. It cannot be contended that the State should be regarded as an opposite party who will be affected or prejudiced if no notice is given before the sentence is suspended or the appellant is released on bail, and so the principle laid down in the cases referred to supra does not strictly apply to this case.

10. My conclusions on the second point therefore are : (i) that the appellate Court is not bound, in every appeal, to issue notice to the Public Prosecutor before a sentence is suspended or the appellant is released on bail; and (ii) that the appellate Court may, whenever it deems necessary, issue notice before passing orders under Section 426, Criminal Procedure Code.

11. The last question that was argued in the petition was, whether the appellant was bound to furnish a copy of the grounds of appeal to the Public Prosecutor. Section 422, Criminal Procedure Code, is quite clear that it is the Court that should furnish the Public Prosecutor with a copy of the grounds of appeal. So, even when an application is made under Section 426, it is not the duty of the appellant to furnish the Public Prosecutor with a copy of the grounds of appeal. I am informed that the practice prevailing in this Court is that the copy of the grounds of appeal is supplied to the Public Prosecutor by the office and not by the appellant. I do not see why a different practice should pervail in the Sessions Courts or in the Subordinate Appellate Courts.

12. As in this particular case, the learned advocate for the petitioners failed to give notice to the Public Prosecutor in spite of his having been directed to do so by the Sessions Judge, I cannot say that the Sessions Judge acted wrongly in dismissing the application. The Criminal Revision Case therefore fails and is dismissed.


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