1. I entirely agree with, the remarks of the Sessions Judge in his letter of reference. The decisions mentioned by him, viz., Ramtohal Dusadli v. Emperor I.L.R., (1909) Calc., 385 and Rangacharlu v. Emperor I.L.R., (1905) Mad., 236 both lay down, that a criminal appeal should not be heard at the time of the presentation of the papers, even for the purpose of dismissal under Section 421. The posting for the purpose of hearing under Section 421 must be a special posting after a reasonable time not less than a week. Ramtohal Duaadh v. Emperor I.L.R., (1909) Calc., 385. This is the practice in the High Court and ought to be the practice in the mufussal wherever it is not.
2. I may also point out that the view of the learned Sub divisional Magistrate, viz., that a pleader who has looked into the papers of a case for the purpose of drafting grounds of appeal is guilty of professional misconduct if he is not prepared to argue the appeal at the time of presentation of the appeal papers is not correct. It is well known that a memorandum of appeal containing all possible grounds (some of which may be ultimately untenable) can be drafted by a mere perusal of the judgment and without the use of the depositions, whereas for arguing the questions of fact, the depositions have to be carefully studied.
3. In Rangacharlu v. Emperor I.L.R., (1905) Mad., 236 it is pointed out that, if questions of fact are argued in the appeal, the appeal ought not to be disposed of even under Section 421 without sending for the original records of the Court below containing the depositions. I agree with this.
4. The result is, the dismissal of the appeal by the Sub-divisional Magistrate is set aside and the appeal is remanded to him for rehearing and disposal according to law.