1. The petitioners were convicted by the Sub-Divisional Magistrate, Athgarh, under Section 448, I.P.C., and sentenced to undergo rigorous imprisonment for one month each. Petitioners Chaitan Pandit and Arta Pandit were also further convicted under Section 323, I.P.C., and sentenced to pay a fine of Rs. 60 each, in default to undergo rigorous imprisonment for 15 days each. On thus being convicted they appealed before the Sessions Judge, Cuttack, before whom the appeal remained pending for some time, and thereafter was transferred to the file of the Additional Sessions Judge, Cuttack. The Additional Sessions Judge on a perusal of the records of the case for himself confirmed the convictions and sentences passed against the petitioners by his judgment dated 21-11-1966 in Criminal Appeal No. 194-C of 1966. Hence this revision.
2. I find from the order sheet of the Sessions Court that the appeal before the Sessions Judge was admitted on 29-7-1966, and it came up before him on several dates for incidental orders, and on 10-10-1966 the Sessions Judge passed an order as follows:
'L.C.R, and S.R. received, Respondent does not appear To 2-11-1968 for hearing.'
Before the said date of hearing, the learned Sessions Judge again passed an order on17-11-1966, transferring the said appeal to the file of the Additional Sessions Judge for disposal. On 18-11-1966, the Additional Sessions Judge on receiving the case on transfer recorded an order stating as follows:
'Received by transfer. Register and put up on the date fixed.'
Both the orders dated 17-11-1966 and18-11-1966 were, obviously passed in the absence of the parties On 21-11-1966, the learned Additional Sessions Judge took up the hearing of this appeal at 12-45 p.m., as I find from the order recorded on that date, when neither the lawyers appearing for the petitioners not any other person on behalf of the petitioners appeared before him in spite of repeated calls. As such he perused the record for himself and confirmed the convictions and sentences passed against the petitioners.
3. In this revision petition it is averred on affidavit that neither the petitioners nor their lawyers were aware of the fact that the appeals had been transferred from the file of Sri L, Panda, Sessions Judge, Cuttack, to the file of Sri B. Misra, Additional Sessions Judge; and no notice of such transfer was given to them in any manner whatsoever. It is also stated that Mr. Panda, Sessions Judge, Cuttack, being absent from Cuttack on 21-11-1968, the petitioners and their lawyers did not take any step on that date, and were not ready for the hearing of the case. But as soon as the petitioners came to know that their appeal had been transferred to the file of the Additional Sessions Judge, they immediately filed a petition before him by about 12-30 p.m. on the same day, stating, amongst other things, that they were ignorant of the said appeal having been transferred to his file, and prayed for a short adjournment of the hearing of the appeal. By the time that petition was filed, it is alleged in this revision petition that the learned Additional Sessions Judge had left the Court-room, and was inside his chamber.
Order No. 8 recorded later on 21-11-1966 by the Additional Sessions Judge suggests that the said petition was fifed after the judgment in the said appeal had been delivered. It is of course asserted in the revision petition on affidavit that the said petition was filed at 12-30 p.m., whereas the learned Additional Sessions Judge states in his order recorded earlier on 21-11-1966 that he waited till 12-45 p.m. and as no body turned up before him, he disposed o! the appeal as stated above.
4. Mr. Kanungo, the learned counsel for the petitioners in this case, contends that if the learned Additional Sessions Judge would have taken care to go through the order sheet of the case, then he would have been satisfied that the petitioners did not and could not have any notice of the pendency of this appeal in his Court, or that the same was to be taken up for hearing by him on that date.
The order sheet shows that the appeal was transferred by the Sessions judge to the Court of the Additional Sessions Judge on 17-11-1966 when the petitioners or their lawyers were not present in the said Court: There is nothing on record to show that the assertion made by the petitioners that they were ignorant about the transfer of the appeal till they filed the petition before the Additional Sessions Judge is not correct. Under Section 422 of the Code of Criminal Procedure, a notice is to be given to the appellant by the Appellate Court both about the time and also the place at which such appeal will be heard. There is nothing in the order sheet to show that any such notice, or even an intimation that the appeal would be taken up for hearing by the Additional Sessions Judge on 21-11-1966 was given to the petitioners, or their lawyers, nor is there anything to show that they were either aware or expected to be aware of the same, in the circumstances of the present case. It may also be noted that the Additional Sessions Judge by his order dated 18-11-1966 did not specifically state that 'on the date fixed' i.e., 21-11-1966 he would take up the appeal for hearing
5. Mr. Kanungo the learned counsel for the petitioners, also contends that the Additional Sessions Judge in taking up this appeal so early on the day without waiting for the parties for some more time, specially in the present context of things, and in disposing of the appeal merely on a consideration of the records of the case for himself, has deprived the petitioners of a valuable tight of being heard as provided for under Section 423, Cr.P.C. As I have discussed above, that was the very first date when the parries would have appealed before him, if they had notice or intimation of the transfer of the appeal to this Court, and as nobody actually was present before him on behalf of either party even on repeated calls, the learned Additional Sessions Judge should have taken particular care to ascertain for himself if the parties had the requisite notice or even information that the matte; had been transferred to this Court, and that it would be taken up for hearing before him on that date This consideration does not seem to have been present in the mind of the Judge sitting in the Appellate Court, and as such the contention of Mr. H, Kanungo appears, to have some force.
Section 423- read with Section 422 of the Code of Criminal Procedure would mean that at first the appellant or the pleader should be given proper notice of the time and place at which such appeal would be heard and thereafter at the hearing the appellant or his pleader should be heard if he appears, and then the Court would proceed to deliver his reasoned order in accordance with law. As discussed above, no such notice of intimation in any manner indicating the time and specially the place at which such appeal would be heard was given to the petitioners or their lawyers. That being so, it cannot be said that reasonable opportunity of being heard was afforded to the petitioners in this case as provided for under Section 423, Cr.P.C. In the circumstances of the present case, there does not appear to be any special reason why the hearing of the appeal should not have stood over for a few days to enable the petitioners or their lawyers to be heard in the appeal. In any case a comparatively short adjournment should have, in the circumstances, been granted; or at least the learned Additional Sessions Judge should have waited for some more time on the same day for the appearance, if any, of the appellants of their lawyers.
In this view of the matter, I feel that the petitioners have been deprived of their right of being heard in the appeal, before the matter was disposed of. The petitioners have been sentenced to undergo substantive terms of imprisonment in addition to payment of fine, and Mr. Kanungo contends that the Additional Sessions Judge in disposing of this appeal in the manner aforesaid has not taken into consideration certain salient features of the evidence and materials before him. In my opinion, the petitioners are entitled to a proper finding of fact from the final Court of fact which is the lower Appellate Court in this case.
6. In this view of the matter, I set asidethe judgment of the learned Additional Sessions Judge, and the case is remanded tothe Court of the Sessions Judge Cuttack,who would dispose of the appeal in accordance with law keeping in view theobservations made above. The lower Courtrecords be sent to the Court of the SessionsJudge, immediately. The appeal should bedisposed of within as short a time aspossible.