Skip to content


Prabhakaran Nair and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 91 of 1959
Judge
Reported inAIR1960Ker314; 1960CriLJ1333
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 367, 419, 421 and 423
AppellantPrabhakaran Nair and ors.
RespondentState of Kerala
Appellant Advocate M. Bhaskaran Menon, Adv.
Respondent AdvocatePublic Prosecutor
Excerpt:
- - it is well-settled that the appellate judgment must be quite independent and stand by itself without being merely supplementary to the judgment of the trial court......and the appeal was dismissed by the learned magistrate by the short order 'i heard the assistant public prosecutor who is appearing for the respondent and also perused the records. i am of the view that the lower court's conviction and sentence have to be confirmed. the appeal is dismissed'.2. it is urged that the disposal of the case in this summary fashion is not proper and it is prayed that the appeal may be directed to be heard and disposed of according to law.3. the objection is justifiable and this petition has only to be allowed. even in cases where an appeal filed under section 419 is to be dismissed summarily the provisions of section 421 are to the effect that the petition and judgment should be read, the records may be sent for and the appellant or his pleader must be heard,.....
Judgment:
ORDER

Anna Chandy, J.

1. This revision is by the five accused in C. C. No. 561 of 1957 on the file of the Second Class Magistrate, Alwaye. They were convicted for the offence punishable under Sections 143, 447 and 427 read with Section 149 I.P.C. and sentenced to pay a fine of Rs. 25 each. They appealed to the District Magistrate, Ernakulam and the appeal was admitted and numbered. On 12-12-1958 when the appeal came up for hearing the appellant's counsel applied for leave on the ground of some personal inconvenience. That application was disallowed and the appeal was dismissed by the learned Magistrate by the short order 'I heard the Assistant Public Prosecutor who is appearing for the respondent and also perused the records. I am of the view that the lower Court's conviction and sentence have to be confirmed. The appeal is dismissed'.

2. It is urged that the disposal of the case in this summary fashion is not proper and it is prayed that the appeal may be directed to be heard and disposed of according to law.

3. The objection is justifiable and this petition has only to be allowed. Even in cases where an appeal filed under Section 419 is to be dismissed summarily the provisions of Section 421 are to the effect that the petition and judgment should be read, the records may be sent for and the appellant or his pleader must be heard, These provisions indicate that proper judicial consideration must be given to the subject matter of appeal even where the appeal is dismissed before issuing notice to the opposite party.

4. In this case the appeal was admitted and notice was issued to the Public Prosecutor. Thereafter the court can dismiss the appeal only in accordance with the provisions of Section 423. That section provides that the appellate court is bound to peruse the record, hear the appellant or his pleader if he appears and the Public Prosecutor if he appears and then dismiss the appeal if it considers that there is no sufficient ground for interfering. Even if the appellant or his pleader is absent the court cannot dismiss the appeal summarily. It must go through the record and write a judgment and dispose of the appeal on the merits. Section 424 enjoins that the rules contained in Chanter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply so far as may be practicable to the judgment of an appellate court other than a High Court and Section 367 provides that every judgment shall except as otherwise expressly provided by this Code.... ....shall contain the point or points for determination, the decision thereon and the reasons for the decision'. It therefore follows that the appellate court can dismiss the appeal only by a proper judgment based on the merits of the case. It is well-settled that the appellate judgment must be quite independent and stand by itself without being merely supplementary to the judgment of the trial court.

5. The judgment in this case does not conform to any of the abovementioned requirements. Apart from the bald statement that 'I am of the view that the conviction and the sentence have to be confirmed' there is nothing on record to justify the assertion made in the judgment that the records were perused. The High Court if it is to see whether the dismissal is justified, should know the reasons which prompted the learned Magistrate to dismiss the appeal.

6. The judgment of the learned District Magistrate is therefore set aside and the appeal is remanded for fresh disposal according to law and in the light of the observations made above. An opportunity may also be given to the appellant to argue the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //