(1) The question arising for consideration is whether if one an appeal from jail is summarily dismissed Under Section 421(1), Criminal Procedure Code, a fresh appeal filed by the same appellant through a pleader Under Section 419 can be heard.
Under Section 421(1), the appellate Court is required to peruse the petition of appeal and the copy of the judgment appealed against and if the Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily; but by virtue of the proviso to the subsection an appeal presented Under Section 419 by the appellant or his pleader is not to be dismissed without giving them a reasonable opportunity of being heard.
By necessary implication therefore an appeal from jail may be dismissed without giving to the appellant an opportunity of hearing, and such dismissal is as final as the dismissal of an appeal filed Under Section 419 after giving a hearing to the appellant or his pleader. Sub-section (1) makes no distinction between an appeal filed Under Section 419 and one filed Under Section 420 in so far as it empowers the Court to dismiss it summarily. The only distinction is that in the case of an appeal Under Section 419 before doing so the appellant or his pleader is to be given an opportunity of hearing. It follows that once an appeal from jail is summarily dismissed, the dismissal is final and no fresh appeal filed through a pleader can be entertained and the Court has no power to alter or review its own order.
(2) Mr. Shukla has relied upon - 'Daya Ram v. Emperor' : AIR1934All888 , where it was held that the dismissal of a jail appeal must be deemed to be a provisional dismissal in no way affecting the right of the appellant to have his counsel heard under the proviso to Section 421(1) in support of the appeal filed Under Section 419. That decision was based on the practice in the Allahabad High Court under which the dismissal of a jail appeal does not debar the hearing of an appeal filed by counsel, and is, on that account, distinguishable. But, if independently of the said practice, the dismissal of a jail appeal were to be deemed as provisional, then, with respect, we cannot agree with that view.
The above Allahabad case was not followed in - 'In re Neelabri Appadu' AIR 1947 Mad 243(1) (B), where following the earlier decisions of the Madras High Court in - 'Kunhahamad Haji v. Emperor' AIR 1923 Mad 426 (C), and - 'In re Somu Naidu' AIR 1924 Mad 640 (D), it was held that the Court is functus officio and the order in the latter appeal, made after the summary dismissal of an appeal from jail, was one without jurisdiction. The legal position has been examined at length in - 'State v. Kalu' AIR 1952 Madh-B 81 (E), and it was held:
Only in the above case (i.e., where an order to the prejudice of an accused is made without affording him an opportunity of being heard, as for instance, where a case was posted on a day anterior to that fixed in the notice to the accused) the High Court can vacate its sum- mary order passed under Section 421 for rehearing the case, though it will not amount to reviewing a previous judgment. Even this will be possible only in the case of appeals presented Under Section 419 and that too only at the instance of the accused appellants. In no other case can an order passed Under Section 421 be vacated or reviewed or revised. The order passed Under Section 421 is definitely a judgment and cannot be altered. It is as final and effective as a decision made Under Section 423(1) (b) after hearing the arguments of the appellant and the Government Advocate.
For the purposes of the present case, it is sufficient to say that we fully agree with the view expressed in the above case that an order of Summary dismissal of an appeal presented Under Section 420 cannot be reviewed or revised.
(3) learned Counsel for the appellant then sought to invoke Section 561-A, Criminal Procedure Code, but that Section has no application. 'Chan-drika v. Rex' : AIR1949All176 , cited by learned Counsel is not relevant because there the appeal was dismissed before the date fixed for the hearing and counsel had no opportunity of being heard. It was therefore held to amount to an abuse of the process of the Court, though not deliberate but only inadvertent. In the present case the former appeal was from jail, and the Court had the power of dismissing it without hearing the appellant. Therefore no question of exercising the inherent powers of the High Court for preventing abuse of the powers of the Court or of securing the ends of justice arises in this case.
(4) The order of dismissal of the appellant's appeal from jail must therefore be treated as final, and this appeal must be dismissed.