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Udesing Pratapsing and anr. Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR627
AppellantUdesing Pratapsing and anr.
RespondentThe State of Gujarat
Cases ReferredKunjamma Paru v. State and
Excerpt:
- - but a practice of the court on the latter matter cannot be regarded as good if it happens to contravene the specific provisions of the code of criminal procedure. however that case is clearly distinguishable from the present case......sessions judge ahmedabad (rural) at narol in criminal appeals no. 36 and 37 of 1964 by which the learned judge confirmed the convictions and sentences passed on the two sets of applicants under section 65(a) bombay prohibition act 1949 and confirmed the conviction under section 66(1)(b) bombay prohibition act 1949 but set aside the sentence passed thereon. six persons were prosecuted for the aforesaid two offences before the learned judicial magistrate first class dholka. the learned magistrate convicted accused nos. 1 2 and 3 of the offences under sections 65(a) and 66(1)(b) bombay prohibition act 1949 and sentenced them for those two offences and acquitted the other three accused nos. 4 5 and 6 aggrieved by the aforesaid order of conviction accused nos. 1 and 2 filed criminal appeal.....
Judgment:

N.M. Miabhoy, J.

1. These two revision Applications are directed against the order dated 6th March 1965 passed by the learned Additional Sessions Judge Ahmedabad (Rural) at Narol in Criminal Appeals No. 36 and 37 of 1964 by which the learned Judge confirmed the convictions and sentences passed on the two sets of applicants under Section 65(a) Bombay Prohibition Act 1949 and confirmed the conviction under Section 66(1)(b) Bombay Prohibition Act 1949 but set aside the sentence passed thereon. Six persons were prosecuted for the aforesaid two offences before the learned Judicial Magistrate First Class Dholka. The learned Magistrate convicted accused Nos. 1 2 and 3 of the offences under Sections 65(a) and 66(1)(b) Bombay Prohibition Act 1949 and sentenced them for those two offences and acquitted the other three accused Nos. 4 5 and 6 Aggrieved by the aforesaid order of conviction accused Nos. 1 and 2 filed Criminal Appeal No. 36 of 1964 in the Court of the learned Sessions Judge Ahmedabad (Rural) at Narol and accused No. 3 filed Criminal Appeal No. 37 of 1964 in the same Court. Both these appeals were admitted and notices of the appeals were caused to be given to the learned Public Prosecutor. The paper-books in the two appeals were ready on 13 February 1965. The aforesaid three accused persons were represented by two learned Advocates in the Court of the learned Sessions Judge. A clerk working under one of the learned Advocates took delivery of the paper-books on 17th February 1965. Thereafter on 19th February 1965 a Notice Board was prepared for the Court of the learned Additional Sessions Judge to whom probably in the meantime the appeals had been transferred for disposal. The Board stated that the aforesaid two appeals were fixed for hearing on 25th February 1965. On that day the learned Additional Sessions Judge called out the two appeals for hearing. The learned Public Prosecutor was present but none of the aforesaid three accused nor any of their Advocates was present though their names were called out in the open Court. Therefore the learned Additional Sessions Judge perused the record of the case and heard the learned Public Prosecutor in the two appeals. Thereafter the learned Judge adjourned the two appeals to 5th March 1965 for delivery of judgment. In the meantime, on 2nd March 1965 Mr. Chinoy and Mr. Shastri the learned Advocates for appellants presented an application to the learned Judge in which they set out the reasons for their non-appearance and the non-appearance of the three appellants on the date fixed for hearing of the two appeals and requested the learned Judge to set down the appeals for re-hearing. The learned Judge was pleased on that day to issue a notice to the learned Public Prosecutor. This application for re-hearing was heard at length by the learned Judge on 3rd March 1965. The learned Judge allowed the counsel to file affidavits in support of their application on that day. After hearing the arguments of both the sides and taking into consideration the affidavits filed the learned Judge came to the conclusion that no case had been made out for re-hearing the appeals. Accordingly the learned Judge dismissed the aforesaid application for rehearing. Then on 5th March 1965 the learned Judge delivered a common judgment disposing off both the appeals and as already stated these two revision applications have been preferred by the original accused persons against that common judgment.

2. Now the judgment of the learned Judge is attacked in the revision applications on a number of grounds. But in my judgment the first ground which is urged against the aforesaid judgment has been made out and as that objection goes to the root of the matter and requires that the appeals should be re-heard on merits I did not hear the Learned Counsel on both the sides regarding the other points raised by them. The objection which has been made out by the Learned Counsel is that the learned Judge had contravened the provision of Section 422 Criminal Procedure Code 1898 in hearing the appeals without giving a notice of the time and place of hearing those appeals either to the appellants in his Court or to their learned Advocates. The relevant part of Section 422 of the Code of Criminal Procedure 1898 reads as follows:

If the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard...

Now a perusal of the record of the two appeals does not leave any doubt that no such notice under Section 422 of the Criminal Procedure Code was issued either to the applicants or to their learned Advocates. The Rojnamas of the two appeals show that after the two appeals were admitted notices thereof were issued under Section 422 of the Criminal Procedure Code to the learned Public Prosecutor probably as being the officer appointed by the State Government under Section 422 to receive notice of appeals. The Rojnamas of the two appeals do not contain any statement anywhere that a similar notice was issued to either the applicants or their Advocates. On 12th June 1964 Mr. Chinoy appeared in Criminal Appeal No. 37 of 1964 and prayed for dispensing with the production of the copy of the judgment appealed from. The Rojnamas then state that the appeals were taken up for hearing on 25th February 1965. Thus the record does not leave any doubt that neither any written nor even an oral notice of the hearing of the two appeals was given to the applicants or their Advocates. All that has happened in the two appeals is that on 19th February 1965 a board was prepared which was pasted on the Notice Board of the Court in which the names of the applicants and their Advocates were shown together with the numbers of the aforesaid appeals intimating that those two appeals would be taken up for hearing on 25th February 1965. I have no doubt whatsoever that even assuming that preparation of the Notice Board and giving intimation of the hearing or an adjourned appeal is justified after the primary or the first notice as required by Section 422 of the Code of Criminal Procedure 1898 has been given intimation by such a notice cannot be regarded as sufficient compliance with the provisions contained in Section 422 of the Criminal Procedure Code. That section in terms puts the appellant on a par with the officer of the Government to whom notice under that section is required to be given. It is quite obvious that a publication of the notice in the aforesaid manner giving intimation to the Public Prosecutor or the officer concerned of the hearing of the appeal would not be sufficient. It is true that the case of an appellant or his Advocate stands slightly on a different footing from that of the respondents that is the State Government in the present case. It is true that Section 422 does not prescribe the exact mode in which intimation is to be given of the hearing of the appeal. Even assuming that if the Court whilst admitting the appeal gives an intimation even oral to the learned Advocate of the exact date and place where the appeal would be taken up for hearing such an intimation would comply with the provision of Section 422 it cannot be held that Section 422 of the Criminal Procedure Code has been complied with if the procedure adopted by the learned Judge is such that neither the appellant nor his Advocate would ever have notice of the date for the hearing of the appeal. I must make it clear that I have made these observations in the context of the provision contained in Section 422 aforesaid. It may be that if once the notice has been served in such a manner as to give effective intimation of the time and place of the hearing of the appeal and if the appeal happens to be adjourned to a later date the practice to which the learned Judge has made reference viz. of publication of the numbers of appeals and the names of the Advocates and parties may amount to sufficient intimation to the parties concerned of the adjourned date. But a practice of the Court on the latter matter cannot be regarded as good if it happens to contravene the specific provisions of the Code of Criminal Procedure. When I asked the learned Advocates on both the sides specifically whether any provision had been made by the High Court in regard to the mode of service of notice under Section 422 of the Criminal Procedure Code the learned Advocates on both the sides were unable to enlighten me on the subject. When 1 perused the Chapter containing rules on appeals in the Criminal Manual issued by the High Court I was unable to find any provision made therein by the High Court on the subject. Therefore this is a case where a notice as required by Section 422 of the Code of Criminal Procedure 1898 was not served either on the applicants or their Advocates. The question therefore arises as to what is the legal effect of the non-service of notice under Section 422 aforesaid. Now I have no doubt whatsoever that the provisions contained in that section are mandatory and the non-compliance with that section would have the result of deciding an appeal without hearing the party most vitally concerned in the result of the appeal. In the view that I have taken above regarding the mandatory nature of the provision. I am fortified by the observations made by Their Lordships of the Supreme Court in Dwarkaprasad v. The State Criminal Appeal No. 1 of 1950 in their judgment dated 6th October 1950 which observations are found to have been extracted in State Government Madhya Pradesh v. Vishwanath Nidhanji and others A.I.R. 1954 Nagpur 231 at page 233. The observations are as follows:

One thing, however, is clear that although it was an appeal from a judgment of acquittal no notice was served upon the accused as is required under Section 422 Criminal P.C. The provision of the section as its language shows is mandatory and a compliance with it an essential preliminary to the hearing of the appeal.

The case-law on the subject also appears to be in favour of the view which I am taking. In Ta Pu v. Emperor 25 Criminal Law Journal 933 Lentaigne J.held that the provisions of Section 422 Criminal Procedure Code were mandatory and it was the duty of the Court to cause notice to be given to the appellant or his pleader of the time and place at which the appeal was to be heard. I have no doubt whatsoever that a breach of the aforesaid section is not a mere irregularity and can not be cured under Section 537 Criminal Procedure Code. The effect of the non-compliance of that section is that the party most vitally concerned in the result of the appeal would have no chance of addressing the learned Judge about the merits of the case and it is quite clear that such ex parte hearing would violate the principles of natural justice. However Mr. Thakore appearing for the applicants very fairly drew my attention to the case Kunjamma Paru v. State and another 52 Criminal Law Journal 641. In that case Govinda Pillai J. refused to give a re-hearing of an appeal in which the appellant and his Advocate had remained absent the intimation of which hearing was given by publication thereof on the Notice Board. However that case is clearly distinguishable from the present case. From the facts recited by the learned Judge in the first paragraph of his judgment it appears that the learned Advocate had intimation of the date which had been posted for hearing of the appeal concerned and that on the adjourned date the learned Advocate did not argue the appeal on the ground that though he had given intimation of the posted date to his client the latter had not given him any instructions in the matter. Therefore this was not the case of a direct breach of the provision contained in Section 422 inasmuch as it was not a case where the primary or the first notice which the section enjoins should be given to an appellant or his Advocate after the admission of an appeal was not given. In view of the mandatory nature of the aforesaid provision it cannot be said that the learned Judge had decided the case after giving an opportunity which the law requires him to do to the applicants and/ or their Advocates. Therefore on this single ground these two revision applications deserve to be allowed the judgment of the learned Additional Sessions Judge deserves to be set aside and the record of the two appeals sent back to the Sessions Court Ahmedabad (Rural) at Narol for decision in accordance with law. However I direct that the two appeals should be heard by a learned Judge other than Mr. R.C. Israni who had decided the two appeals.

3. Before parting with this case I may mention in fairness to the learned Additional Sessions Judge that his attention was not drawn to Section 422 Criminal Procedure Code. The application for re-hearing was supported before the learned Judge under the provisions of Section 423 and 428 Criminal Procedure Code and on merits. At the time of hearing of the application for re-hearing the case under Section 428 Criminal Procedure Code was given up and the learned Judge after exhaustively discussing the provisions contained in Section 423 and the arguments addressed on the merits came to the conclusion that no case was made out for putting up the two appeals for a second hearing. In view of my conclusion that the provisions of Section 422 Criminal Procedure Code have been violated it is not necessary for me to consider the reasons which were given by the learned Judge for rejecting the application for re-hearing under Section 423 Criminal Procedure Code and on merits.

For the aforesaid reasons the revision applications are allowed the judgment and order passed by the learned Additional Sessions Judge are set aside and the rule is made absolute in the two revision applications. I further direct that the Sessions Court Ahmedabad (Rural) at Narol shall take up the aforesaid two appeals under their original numbers and a learned Judge other than Mr. R.C. Israni shall dispose of the two appeals in accordance with law. If the applicants or any of them make an application for bail the Sections Court will consider the same on its own merits.


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