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In Re: Mittor Moideen Hajee and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad95; 71Ind.Cas.217
AppellantIn Re: Mittor Moideen Hajee and anr.;In Re: Edekkattu Chekkuti Haji
Respondent;
Cases ReferredKopparthi Lingayya v. Alaveli Chinnarayana
Excerpt:
.....we think, be taken as legitimate only after the preliminary stage indicated in sections 421 and 422 has been passed; it is true that notice has been given in this case to the public prosecutor but (as we stated distinctly in the order directing it) it was given only for the special purpose of enabling him to appear to take part in the proceedings authorised by section 421 at which the question of admission and the question whether there should be further proceedings, with respect to which section 423 applied, are considered......a fine and who, therefore, is entitled, under section n of the ordinance, to appeal only to the special judge and not to this court. in fact, he did present appeal originally to the special judge. but that officer returned it to him on the ground that some of the accused had been sentenced in the judgment appealed against to 5 years' rigorous imprisonment and that the appeal lay in the case of those also who had been sentenced to a shorter period to the high court. that view of the law is incorrect--vide venkatakrishnayya, in re 39 ind. cas. 294 : 40 m. 591 : 31 m.l.j. 837 : cr.l.j. 454. for the purpose of deciding the tribunal before which the appeal lies, each accused must be deemed to have been convicted in a separate case of his own; and the determination of the court having.....
Judgment:

1. These appeals came before one of us for admission; and notice was issued to the Public Prosecutor solely on the question whether they could be admitted or whether they were out of time. The point arises primarily because the convictions and thesentences were passed under Ordinance 1 of 1922, a special enactment. The time provided for appealing under that Ordinance is only 15 days. Judgment was given in each of these appeals on the 31st March. The presentation in this Court was, in Appeal No. 325, on the 24th April and in Appeal No. 342 on the 28th April. It is clear that this presentation was out of time, unless the appellants were entitled at least to an allowance for the period requisite for obtaining copies of the judgments appealed against. Such a deduction would, of course, be admissible in any appeal against a conviction under the ordinary law with reference to section. 12 of the limitation Act. This Court has, however, recently held in Kopparthi Lingayya v. Alaveli Chinnarayana 44 Ind. Cas. 805 : 41 M. 169 : 33 M.L.J. 566 : 7 L.W. 433 that Section 12 cannot be applied in the case of appeals under a special law, such as the Ordinance we have to deal with.

2. The point, however, calls for no further consideration since the passing of Act X of 1922, which became law on the 5th March, 1922, and provided that Sections 4, 9 to 18 and 22 of the Indian Limitation Act should be applicable to proceedings under any special or local law, in so far as and to the extent to which they are not expressly excluded by such law. It may be said at once that there is nothing in the Ordinance expressly excluding this provision. The appellants are, therefore, entitled to credit for the time they spent in obtaining copies; and that is, as Mr. Kurup on their behalf agrees, from the date of judgment, 31st March 1922 to the date, on which copies were given to their Vakil, 2nd April 1922.

3. That deduction, however, made, the presentation on the 24th and 28th April was still beyond the 15 days allowed by the Ordinance. Mr. Kurup has accordingly. conceded that there is delay in the presentation of Appeal No. 325 and has urged that the delay should be excused by this Court. The difficult is, that Section 5 of the Limitation Act, under which the Court can excuse delay, is not one of the provisions the application of which is extended by Act X of 1922 to proceedings under a special or local law. We, therefore, have no right to utilize Section 5 in dealing with these appeals. Next, it has been argued that we have power to excuse the delay under Section 423(i)(d), Criminal Procedure Code, because an order excusing the delay would be a consequential or incidental order and would be just or proper in their disposal. We are unable to take that view of the nature of such an order. It is not consequential. We must then consider whether it is incidental and, if so, incidental to what Section 423 begins: 'The Appellate Court shall then send for. the record of the case, if such record is not already in the Court;' and it has to be presumed that any power conferred by Section 423 can be-used only after the stage, at which Section 423 becomes applicable to the proceedings, has been reached. That is clearly indicated by the use of the word 'then'. The application of Section 423 must, we think, be taken as legitimate only after the preliminary stage indicated in Sections 421 and 422 has been passed; that is, after the appeal has been admitted and after the notice referred to in the latter section has been given. It is true that notice has been given in this case to the Public Prosecutor but (as we stated distinctly in the order directing it) it was given only for the special purpose of enabling him to appear to take part in the proceedings authorised by Section 421 at which the question of admission and the question whether there should be further proceedings, with respect to which Section 423 applied, are considered. We do not think that Section 423 confers on us any power the exercise of which can help these appellants. We must, therefore, dismiss Appeal No. 325 as out of time.

4. These considerations, however, are not sufficient for the disposal of appeal No. 342, because it is presented by the 36th accused, who was sentenced only to 4 years' rigorous imprisonment and a fine and who, therefore, is entitled, under section n of the Ordinance, to appeal only to the Special Judge and not to this Court. In fact, he did present appeal originally to the Special Judge. But that officer returned it to him on the ground that some of the accused had been sentenced in the judgment appealed against to 5 years' rigorous imprisonment and that the appeal lay in the case of those also who had been sentenced to a shorter period to the High Court. That view of the law is incorrect--Vide Venkatakrishnayya, In re 39 Ind. Cas. 294 : 40 M. 591 : 31 M.L.J. 837 : Cr.L.J. 454. For the purpose of deciding the Tribunal before which the appeal lies, each accused must be deemed to have been convicted in a separate case of his own; and the determination of the Court having jurisdiction to hear his appeal will depend on the extent of his individual sentence. That being the law, the learned Special Judge was wrong in returning the appeal to the appellant for presentation to this Court. We have only then to decide whether the presentation to the learned Special Judge was in time. It is not disputed that, if allowance is made for the time taken for obtaining copies and for the time during which the Court was closed for the holidays, presentation there on 24th April 1022 was in time. That being so, the learned Special Judge has refused to exercise the jurisdiction vested in him by law and we must deal with his order in revision. We, therefore, in Appeal No, 342 return the appeal to the appellant's Counsel for re-presentation in the Court of the Special Judge.


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