Shamsul Huda and Smither, JJ.
1. The circumstances under which this Rule was issued are shortly these: In April 1917 there was a riot in the course of which one Hasanuddin received a lathi blow on the head which resulted in his death, Ali Newaz being the person who was alleged to have struck the fatal blow. In connection with this occurrence six persons, namely, Ali Newaz, Nabi Newaz, Hamid Ali, Surat Ali, Jafar Ali and Akram Ali, were tried together and on conviction under Sections 147 and 304/149 of the Indian Penal Code, Ali Newaz was sentenced to seven years' rigorous imprisonment, Hamid Ali to three years, Nabi Newaz to eighteen months and the remaining three, viz., Surat Ali, Jafar Ali and Akram Ali, were sentenced to two years' rigorous imprisonment. Rajjab Ali one of the accused in the case was tried subsequently, lie having been ill at the time of the trial of the other accused persons. Rajjab Ali, who was convicted last and sentenced to two years' rigorous imprisonment, appealed from jail. His appeal was placed on the undefended list, and we summarily rejected the appeal without calling for the record, as on the face of the judgment there was nothing to show that the sentence was inappropriate. The other convicted persons subsequently appealed through a vakil of this Court. The appeal, except as regards Ali Newaz, was admitted for consideration of sentence only and the record was sent for and ultimately, after hearing the vakil for the appellants and the Deputy Legal Remembrancer for the Crown, the learned Judges, with fuller materials before them, reduced the sentences passed on the five appellants to rigorous imprisonment for four months only.
2. An application was then made to us to review our order summarily rejecting the appeal of Rajjab Ali and to reduce the sentence passed on him, as his case, it was urged, was not distinguishable from that of the five appellants sentenced to four months' rigorous imprisonment. We thought that for the sake of consistency the sentence on Rajjab Ali should also be reduced. We had our doubts whether, having regard to the decision of the Full Bench in In the matter of Gibbons (1886) I.L.R. 14 Calc. 42, we could review our order, but we issued the Rule as we were informed that in some more recent cases this Court had reviewed its orders in criminal cases. See King-Emperor v. Romesh Chandra Gupta, 22 C.W.N. 168.
3. The matter has now been argued before us, and the learned vakil for the petitioner has drawn our attention to the following cases decided by this Court after the Full Bench decision: Bibhuti Molvun Roy v. Dasi Money Dasi (1902) 7 C.W.N. vii n, Bibhuty Mohun Roy v. Dasimoni Dassi (1902) 10 C.L.J. 80. In the matter of An Attorney (1914) I.L.R. 41 Calc. 734.
4. We think the present case is not distinguishable from the case decided by the Full Bench, and is distinguishable from these other cases. In the first of these cases the order had not issued nor had it been sealed with the seal of the Court, and the Rule was discharged for default as the learned vakil engaged in support of the Rule could not appear when the case was called on for hearing and there was no consideration of the merits of the case. The second case was of the same nature, i.e., the case was disposed of for default of appearance only, without any decision on the merits. The last case does not seem to us to throw any light on the question under our consideration. The result of the decisions of this Court subsequent to the Full Bench case seems to be this: that where a case is disposed of merely for default of appearance or where an order is passed to the prejudice of an accused person and by mistake or inadvertence no-opportunity has been given to him to be heard in his defence such an order is not one to which the ruling in the Full Bench case applies. We are, therefore, of opinion that we are bound by the decision of the Full Bench and that this Rule must be discharged. At the same time we may observe that we are not prepared to say that the sentence passed on the five appellants was too lenient, having regard to all the circumstances of the case, nor can we say that Rajjab Ali deserves a severer sentence than that passed on the five appellants, before mentioned.
5. We would, therefore, direct that a copy of this judgment, as well as a copy of the judgment in Appeal No. 679 of 1917, be forwarded to the Local Government with a recommendation that the sentence of rigorous imprisonment passed on Rajjab Ali be reduced to the period he has already undergone.