J. Sahai, J.
1. Appeal No. 1394 of 1955 has been filed by Vijaipal and Babu Lal while appeal No. 1529 of 1955 has been filed by Chandan and Prabhu. all four of whom have been convicted under Sections 399 and 402, I. P. C., by the learned Assistant Sessions Judge, Aligarh. Chandan has also been convicted under Section 19(f) of the Arms Act. Whereas the sentences under Sections 399 and 402, I. P. C., of all the appellants have been ordered to run concurrently, the sentence under Section 19(f) of the Arms Act imposed on Chandan has been ordered to run consecutively.
Along with these four persons Chiranji son of Megh Singh, Chiranfi son of Maharam, Khushali, Mahabir, Balbir and Ram Gopal were also convicted by the learned Assistant Sessions Judge. These persons, as also the four appellants had filed one jail appeal against their conviction and sentence. This jail appeal was admitted by my brother V. D. Bhargava, J., on 21-11-1955. After the jail appeal had been filed and admitted the present two appeals Nos. 1394 and 1529 of 1955 were filed in this Court.
By a mistake of the office no endorsement was made on the memorandum of these two appeals to the effect that a jail appeal had also been filed, with the result that these represented appeals also were admitted. On 19-7-1957, the jail appeal waslisted before me. The two represented appeals mentioned above were not listed that day with the result that I disposed of the jail appeal with the help of the State counsel but without having the assistance of the learned Counsel appearing in the represented appeals, because their names were notprinted in the cause list.
I dismissed the jail appeal with this modification that I ordered that that the sentence passed under the Arms Act would also run concurrently and not consecutively with the sentences awarded under Sections 399 and 402, I. P. C. After some time the office realised its mistake and listed the two represented appeals before me and now I have had the benefit of hearing Mr. Kedar Nath Sinha in appeal No. 1529 of 1955 and Mr. J. N. Agarwalin appeal No. 1394 of 1955.
2. The first question that arises for consideration in this case is whether it is possible in view of the provisions of Sections 369 and 430 of the Code of Criminal Procedure to rehear these two represented appeals. In my opinion it is possible to do so. I have got ample powers under the provisions of Section 561-A, Cr. P. C. to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The said Section runs as follows :
'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.'
It is a well established principle of justice that an act of the Court shall not prejudice any party. It cannot be denied that because of the mistake of the office of the Court the appellants have been deprived of the right of being heard through a counsel. This right has been guaranteed to them by Section 340 (1) of the Code of Criminal Procedure which runs as follows :
'Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.'
There is ample authority for the proposition that the hearing of an appeal would also be included in the word 'proceedings' as contemplated by Section 340 (1), Cr. P. C. Therefore it has got to be held that by a mistake of the office of this Court the appellants have lost a very valuable right of being heard through their counsel. Under these circumstances I think I should invoke my powers conferred by Section 561-A, Cr. P. C.
3. I am of the opinion that Section 369, Cr. P. C., would be no bar to the exercise of my powers under Section 561-A nor do I think would the provisions of Section 430 be a bar. Section 369, Cr. P.. C., runs as follows :
'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 by the Letters Patent or other instrument constituting 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 first place the expression 'save as otherwise provided by this Code' clearly means that the provisions of Section 561-A, Cr. P. C. are not affected by Section 369, Cr. P. C., and secondly when I give the appellants a rehearing and ignore my judgment dated 19-7-1957, I am neither altering nor reviewing that judgment of mine. Therefore the course that I propose to take would not fall within the mischief of Section 369, Cr. P. C. Similarly the bar of Section 430, Cr. P, C. would not stand in my way because an order which has been passed due to the mistake of the court itself in complete disregard of the statutory rights of the parties is an order to which no finality can be attached.
In the view that I am taking I am supported by a decision of this Court in the case of Chandrika v. Rex : AIR1949All176 . In that case Chandrika had filed a criminal appeal through a counsel in which 5-7-1948 was fixed for hearing but by a mistake of the High Court office the case was listed for hearing earlier and was heard and disposed of on 25-6-1948, ten days before the date fixed for hearing, with the result that the learned Counsel appearing for the appellant in that case could not address the Court. Seth, J., acting under Section 561-A, Cr. P. C., set aside his earlier order dated 25-6-1948 dismissing the appeal and directed rehearing of the appeal
A Division Bench of this Court has also taken a similar view in the case of Sriram v. Emperor 0043/1947 : AIR1948All106 . In that case an order was passed by a Division Bench ignoring a certain provision of law. Though the order had apparently become final under Section 430, Cr. P. C. and though it was contended that it could not be altered or reviewed under Section 369, Cr. P. C., a Bench of this Court took the view that they could under Section 561-A, Cr. P. C., pass such orders in the interests of justice and, setting aside the earlier proceedings, passed a fresh order.
4. A difficulty however may arise inasmuch as the judgment dated 19-7-1957 can be said to ba due to the mistake of the office only so far as it related to the four appellants before me and not with regard to the others. The question then would be whether it is possible to ignore that order with regard to the four appellants only and to maintain it with regard to the other six. In my opinion there should be no difficulty in doing so because though one single appeal was filed on behalf of ten appellants notionally there were ten different appeals.
A right to file an appeal is an individual right which has been conferred by Section 410, Cr. p. C. The mere fact that ten different persons who had got ten different rights joined together in one common petition of appeal and their cases were disposed of by one common judgment does not mean that in the eye of law they would not be deemed to be ten different appeals. Therefore there is nothing objectionable or contrary to law in re-hearing the appeals of only those four persons, who had filed appeals through counsel also and maintaining my order dated 19-7-1957 in respect of the others who have not appealed through counsel.
At the time when these re-presented appeals were listed before me I asked Mr. Sinha and Mr. Agarwal to argue the appeals on merits also which they have done. I therefore set aside my order dated 19-7-1957 so far as it relates to the present appellants and embark upon a discussion of theircases.
5. It has been strenuously contended by Mr. K. N. Sinha that the evidence in the case is not of an independent character and all the non-police witnesses who have been examined in the case are connected with the police or under their influence. The prosecution case in short is as follows:
6. At about 4.30 P.M., on 26-8-1954, Chandan (appellant) and Khushali and Chiranji son of Maharam accused approached one Govardhan resident of village Naurangabad and requested him to help them with one or two pistols and few persons in order to enable them to commit a dacoity at the house of one Khema Lodha of village Ba-dhauli. Govardhan befriended these persons and obtained from them detailed information with respect to the proposed dacoity and promised to help them, but after they had left he proceeded to Kotwali Aligarh and informed the Station Officer Sri Gurmukh Singh about the plans of these persons at about 7P.M., the same day.
The station officer got a report entered in the general diary and after collecting sufficient force started for the grove. He got the usual report of his departure also made in the general diary, The police party proceeded in a truck and picked up one Narain Dutt from the railway road. They picked up one Om Prakash Singhal also a little further away and leaving the truck near the D. A. V. School the police party collected in an open maidan known as Takiya.
The station officer called some other persons also from Naurangabad and Jwalapuri Mohallas. These persons were Malook Chand, Dhani Ram and Lakshmi Narain. After the party had thus become complete a search was taken of its members to ensure that they had nothing unlawful in their possession which could be planted upon the persons arrested if the police party succeeded in doing so. The party was divided in three batches. The batch which left towards the eastern side of the grove was led by Sri Munshi Singh while the one going towards the western side was led by Sri Balwant Singh and Sri Amar Singh. Sri gal-want Singh and Sri Amar Singh were police circle Inspectors.
The batch going towards the north of the grove was led by Sri Har Narain Singh and Station Officer Sri Gurmukh Singh. The three batches started simultaneously and when they reached near the grove they saw about 15 or 16 persons sitting on a chabutra under a tree in the middle of the grove. One of those persons inside the grove was heard to say, 'Bhoora, your man did not turn up with the Danda' upon which another man replied 'It does not matter, we have already got three Dandas with us.'
The prosecution suggestion is that the word 'Danda' stood for a country-made gun. It is said that the three batches of the police party after flashing torches challenged the persons sitting inside the grove and attacked them. Some three or four persons sitting inside the grove managed to escape while 11 of them were caught at the spot. All these 11 persons were searched by the raiding party and the prosecution case is that one unlicensed pistol and 8 live cartridges were recovered from the possession of Chiranji, sou of Megh Singh, one unlicensed pistol and six cartridges from the possession of Chandan (appellant) and one unlicensed pistol and four cartridges from, the possession of Chiranji son of Maharam.
Certain other Articles e.g., one jemmy, two torches, one knife and some lathis were also recovered from the possession of the persons who had assembled inside the grove. A recovery memo was prepared at the spot by station officer Gurmukh Singh in which details of the properties recovered from the various persons were given. This recovery memo was attested by Malook Chand, Dhani Ram, Om Prakash Singhal, Narain Dutt, Lakshmi Narain and Circle Inspector Amar Singh as also the station officer. The eleven arrested persons were thereafter brought to police station Kotwali where a first information report was lodged at 11P.M., by the Station Officer.
Chandan and Babu appellants and Khushali and Chiranji son of Megh Singh had received some injuries in the course of the struggle leading to their arrest. These injuries consisted of some faint abrasions and contusions. In all 14 persons were put up on their trial in the court of sessions i.e., the four appellants and ten others. Three of them namely, Netrapal, Chetram and Bhoora who had not been arrested on the spot were acquitted by the learned Assistant Sessions Judge and the rest were convicted, the appellants being four of them.
7. The prosecution examined II eye-witnesses from amongst the persons who had formed the party which raided the grove and arrested 11 persons (including the four appellants) there. These witnesses were Circle Inspector Amar Singh (P.W. 4) and Balwant Singh (P. W. 11), station Officer Gurmukh Singh (P. W. 25), Head-constables Mushtaq Husain (P. W. 12) and Desh Raj Singh (P.W.19), constable Pritam Das (P. W. 18), Narain Dutt (P. W. 5), Om Prakash (P.W.17), Lakshmi Narain (P.W.8), Dhani Ram (P.W.9) and Malook Chand P.W.13). P.Ws. Narain Dutt, Om Prakash, Lakshmi Narain, Dhani Ram and Malook Chand are public men and have nothing to do with the police officers. They live in the nearby mohallas.
8. It has been contended before me by the learned Counsel for the appellants that the statement of P.W. Govardhan should not be relied upon because he admitted in his statement that he was a history-sheeter. To my mind that is not a sufficient ground for rejecting his testimony because 7 or 8 years before he had made the statement in court that bis history-sheet had already been closed. The statement of P. W. Lakshmi Narain is assailed on the ground that he admitted that he had appeared as a witness for the police in one or two cases before appearing as a witness in this case.
He denied the suggestion made by the learned Counsel for the defence that he had appeared for the police 10 or 20 times. It is also contended that he admitted that he could not identify the men arrested on the spot and that the arrested persons were not known to him from before. It is contended that there is no evidence that the appellants were put up for identification in a parade in which this witness picked out the appellants, and consequently it is argued that the evidence of this witness is liable to be rejected.
In my opinion this is not a sufficient ground for rejecting the testimony of this witness. The evidence of Dhani Rani Sharma is challenged on the ground that he had appeared once or twice before as a prosecution witness in some cases. I am unable to agree that on this ground alone I should reject the testimony of this witness. Nothing has been shown to me against the acceptance of his statement. With regard to the evidence of P. W. Malook Chand it has been pointed out to me that he too had appeared as a prosecution witness once or twice before he appeared as a witness in the present case.
As that is the only criticism against the evidence of this witness I am not inclined to discard his testimony. The evidence of P. W. Om Pra-kash is criticised on the ground that he had once given evidence against one Ghani under Section 109, Cr. P. C. That fact alone to my mind does not show that the evidence of this witness is not reliable. I am therefore not prepared to hold that the statements of all these witnesses are liable to be rejected. This evidence along with the evidence of the police witnesses who were members of the raiding party to my mind is sufficient to prove that the appellants were arrested at the place and in the manner suggested by the prosecution.
9. The contention of the learned Counsel for the appellants is that even if it be assumed that they were arrested at the time and place and in the manner suggested by the prosecution, their conviction under Sections 399 and 402, I. P. C., cannot be maintained in view of the fact that there is no evidence to indicate that they had assembled there for the purpose of committing dacoity. I am unable to accept this argument in view of the statement of Govardhan which I have believed. From the evidence of Govardhan it appears that Chiranji and others had approached him and asked him to lend some weapons and had also requested him to send those weapons to the grove where the appellants were arrested.
From the evidence of this witness it also appears that the appellants were assembling in the grove for the purpose of committing dacoity. Therefore it is not possible to accept the contention of the learned Counsel for the appellants that there is no evidence to indicate that they had assembled there for the purpose of committing dacoity. In my opinion therefore the appellants have been rightly convicted.
10. It has been urged before me that two of the appellants Vijai Pal and Prabhu are quite young and are aged 20 and 22 years respectively. There appears to be no previous conviction against these two persons. I am therefore inclined to agree with the learned Counsel for the appellants that there is scope for reduction of their sentences. I therefore reduce the sentences of Vijaipal and Prabhu to three years rigorous imprisonment each under Sections 399 and 402, I. P. C. These sentences shall run concurrently.
With this modification in sentence their appeal IB dismissed. I see no justification for reducing the sentences imposed upon Babu Lal and Chandan. I therefore dismiss their appeal but direct that the sentence of two years imprisonment awarded to Chandan under Section 19(f) of the Arms Act shall also run concurrently along with the sentence imposed on him under Sections 399 and 402, I. P. C.
The appellants shall surrender and serve out the rest of their sentences.