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Khiali and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All480; 68Ind.Cas.41
AppellantKhiali and anr.
RespondentEmperor
Cases ReferredEmprers v. Bhimappa
Excerpt:
criminal procedure code (act v of 1898, section 421 - appeal through jail authorities summarily rejected--appeal subsequently through counsel, whether entertainable. - - there, distinctly held that an order dismissing an appeal, under section 421 of the code of criminal proc3dure, was a final order, not open to review by the court whish passed the same, and that a sessions judge had acted without jurisdiction when, having re-considered a question of limitation, he proceeded to hear and decide in a different sense an appeal which he had previously dismissed......through counsel under section 419 of the code of criminal procedure it is improper to dismiss the appeal summarily at all, and an order summarily dismissing an appeal while there is a petition presented through counsel pending and undisposed of on the file of the court, would be, nonetheless, an imporper order, because it happened that another petition of appeal in the same matter from the earns convict had been received through the superintendent of the jail. in the case now before us, the order summarily dismissing the petitions of appeal presented on behalf of khiali and halasi through the superintendent of the jail in whish they were confided was a valid and proper order, there being on the file of this court on that day no petition of appeal other than the two petitions received.....
Judgment:

1. On the 4th of April 1922 the Court of the Additional Sessions Judge at Aligarh, sitting at Etah, convicted two men, Khiali and Hulasi, on a charge under Section 395 of the Indian Penal Code, and passed upon them substantial sentences of imprisonment and fines. On the 12th of April 1922 both Khiali and Halasi caused to be prepared in the Ja(sic)1, in which they were confined, petitions of appeal against their convictions and the sentences passed upon them. These petitions of appeal reached this Court on the 15th of April 1922. Hiving been examined and reported upon by a ministerial officer of this Court, they ware laid before a Judge of this Court on the 20ih of April 1922. On the day following, the Judge in question, dealing with the petitions of appeal under Section 421 of the Code of Criminal Procedure, dismissed both the appeals of Khiali and Hulasi summarily.

2. On the 1st of May 1922 Counsel, having been instructed on behalf of Khiali and Hulasi, brought for presentation to this Court a petition of appeal, which was submitted to a ministerial officer of this Court for report In the report thereupon prepared, attention was drawn to the fact that petitions of appeal from Khiali and Hulasi had been received, through the Superintendent of the Jail, and summarily dismissed by a Judge of this Court Counsel for Khiali and Hulasi seams to have taken a little time to consider his position, but finally presented a fresh petition of appeal on the 8th of May. 1922. The Judge, before whom this petition was presented, passed an order dated the 10th of May 1922, in which he referred to a previous decision of this Court and directed that the petition of appeal should be laid before a Bench of two Judges for consideration.

3. We are asked expressly to determine the question whether the second petition of appeal, on behalf of Khiali and Hulasi, is entertainable in view of the order of the 21st of April 1922 summarily dismissing the petitions of appeal received through the Superintendent of the Jail.

4. The earlier ease of this Court is that of Emperor v. Bhawani Dihal A. W. N. (1906) 303 : 3 A. L. J. 693 : 4 Cr. L. J. 573. The facts of that ease are dearly distinguishable from those now before us. A petition of appeal had been received by a Sessions Judge, through the Superintendent of the Jail in which the appellant was confined, and while that petition was still pending and undisputed of in the Sessions Court, the same appellant presented a second petition of appeal through Counsel. Apparently, overlooking this fast, the Sessions Judge, first of all, summarily dismissed the petition which had been received through the Superintendent of the Jail and then proceeded further, on the strength of this order, to dismiss the petition filed through Counsel without having even offered the Counsel concerned an opportunity of arguing the same. A learned Judge of this Court held that this procedure was illegal and, setting aside the order of dismissal, directed the Session's Judge to re-admit the appeal of that particular convict and to dispose of it according to law after hearing Counsel. The point of that decision obviously is that, when once a petition of appeal has bean filed through Counsel under Section 419 of the Code of Criminal Procedure it is improper to dismiss the appeal summarily at all, and an order summarily dismissing an appeal while there is a petition presented through Counsel pending and undisposed of on the file of the Court, would be, nonetheless, an imporper order, because it happened that another petition of appeal in the same matter from the earns convict had been received through the Superintendent of the Jail. In the case now before us, the order summarily dismissing the petitions of appeal presented on behalf of Khiali and Halasi through the Superintendent of the Jail in whish they were confided was a valid and proper order, there being on the file of this Court on that day no petition of appeal other than the two petitions received through the Superintendent of the Jail. The right of appeal allowed to Khiali and Hulasi against their conviction by the Sessions Judge and sentences passed upon them has, therefore, been fully exercised according to law and their appeals have bees disposed of by a proper and valid order of this Court before the petition of appeal with which we are now dealing was ever presented to the Court at all? The objection is not to the presentation of more than one petition of appeal by or on behalf of tin same convict, bit to the obtaining from this Court of more than one judicial determination upon the question raised by the appeal. In our opinion this application is not entertain-able.

5. We have been referred in argument to one case, whish has not found its way into any of the authorised reports, but whish certainly is an authority in favour of these appellants. The case is that of Hulai v. Emperor 36 Ind. Cas. 133 : (sic) C. L. J, 826 : 17 Cr. L. J. 453. In that ease Mr. Justice Lindsay, the a Judicial Commissioner of Oudh, had before him the order of a Sessions Judge dismissing an appeal which had been presented through Counsel, on the ground that a previous petition of appeal in the same matter received through the Super-intendent of the Jail had been summarily dismissed. Mr. Lindsay set aside the order of the Sessions Judge fur reasons stated in the report. He, there, refers to the case of Emperor v. Bhawani Dihal (1), but does not note the distinction in the facts to which we have referred. As regards the reference whish Mr. Lindsay makes regarding his recollection of a previous decision of the same Court, we believe the facts to be that the learned Judge of the Oudh Court, who had previously summarily dismissed an appeal, found it possible under the circumstances to review and set aside his own order, before the appeal presented through Counsel was heard or permitted to be argued. There is no such question arising in the present case and we need not consider under what circumstances, if any, it would be possible for a Judge of this Court to reconsider a final judgment of his own delivered in a criminal matter. There is one case in the authorised Law Reports which is entirely in accordance with the view which we ourselves are disposed to take, and that is the case of Queen-Emprers v. Bhimappa 19 B.732 : 10 Ind. Dec. (N. S.) 490. It was. there, distinctly held that an order dismissing an appeal, under Section 421 of the Code of Criminal Proc3dure, was a final order, not open to review by the Court whish passed the same, and that a Sessions Judge had acted without jurisdiction when, having re-considered a question of limitation, he proceeded to hear and decide in a different sense an appeal which he had previously dismissed. In our opinion the appellants, Khiali and Hulasi, are not entitled to be heard upon a petition of appeal presented after their original petitions of appeal, received through the Superintendent of the Jail, had been finally disposed of according to law by the order of a Judge of this Court. We reject this petition of appeal accordingly.


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