B.N. Dutt, J.
1. Nine persons were convicted by an Assistant Sessions Judge at Birbhum under Section 395 of the Indian Penal Code and sentenced to rigorous imprisonment for three years each. Six of them preferred an appeal before the Sessions Judge of Birbhum. They filed a joint petition of appeal. This appeal was heard by an Additional Sessions Judge. He dismissed the appeal on the preliminary point that a joint petition of appeal by more than one convicted person was not maintainable in law The petitioners were three out of the said six appellants The petitioners have obtained this Rule against theaforesaid order of the Additional Sessions Judge.
2. The short question for consideration is if a joint petition of appeal by more than oneconvicted pennon is maintainable under Section 419 of the Code of Criminal Procedure. The relevant portion of Section 419 is as follows: 'Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader' Does this mean that when several persons are convicted at a joint trial each one must file a separate petition of appeal or more than one such person can join in one petition of appeal? What Section 419 contemplates is that an appeal shall be in the form of a petition in writing It does not say that each appellant must file a separate petition in writing or in other words, the words in Section 419 do not bar more than one convicted person to join in one petition.
3. It has been argued that if more than one convicted person join in one petition of appeal. Sections 421 and 431 of the Code would become unworkable Section 421 reads as follows 'On receiving the petition... under Section 419... the Appellate Court shall peruse the same. and. if it considers that there is no sufficient ground for interfering it may dismiss the appeal summarily.' It is said that if more than one person join in one petition of appeal, the Appellate Court will not be in a position to summarily dismiss the appeal in respect of one of the appellants even though it considers that there is no sufficient ground for interfering as against him There can be no substance in this contention. When more than one convicted person files a joint petition of appeal there will be no difficult in proceeding under Section 421 of the Code inasmuch as if the Appellate Court thinks that the appeal in respect of one of the appellants has no substance it can record an order that the appeal of that appellant would stand summarily dismissed and the appeal of the other appellants would proceed But to this it has been argued that that would mean partial summary dismissal of an appeal which would be bad in law Reference is in this connection made to the Supreme Court decisionBabri Ghela Jadav v. State of Bombay reported in AIR 1960 SC 746. But that was a case of an appeal filed by one person. What was held there was that the Appellate Court could not in exercise of its powers under Section 421 of the Code direct that the appeal should be heard only on the point of sentence. The Appellate Court in that case summarily dismissed the appeal as regards the conviction of the appellant but admitted the appeal on the question of sentence What the Supreme Court said was that the Appellate Court had power to dismiss the entire appeal summarily if it considers that there was no sufficient ground for interfering But it had no power to direct that the appeal should be heard only on the point of sentence Thus what was held by the Supreme Court was that when there was an appeal by one appellant there can be no partial summary dismissal of the appeal under Section 421 of the Code. The Supreme Court had not to consider in that case if the Appellate Court in exercise of the powers under Section 421 of the Code can summarily dismiss the appeal in respect of one person and proceed with the appeal in respect of the other persons where more than one person have filed a joint petition of appeal When more than one person file a joint petition of appeal and when the Appellate Court summarily dismissed the appeal of one of them this does not amount to a partial summary dismissal of the appeal within the terms of the aforesaid Supreme Court decision because the whole appeal in respect of that appellant is dismissed.
4. Then Section 431 reads as follows: 'Every appeal and even other appeal under this chapter shall finally abate on the death of the appellant' It has been argued that if there be more than one appellant in one appeal and if one of them dies, the whole appeal shall abate, that is the result will be that even the appeal of the persons who are not dead will also automatically abate. We find no substance in this argument either. When there is a .joint petition of appeal and one of the appellants dies during the pendency of the appeal the appeal in respect of that appellant only shall abate and the appeal of the other appellants must proceed Though several persons join the petition of appeal in effect the appeal is by each of the appellants and when one of them dies his appeal abates and not the appeal of the others.
5. Merely because more than one person join in one petition of appeal it does not become one appeal though registered as such. The effect of more than one person joining in one petition of appeal is that they are enabled by a single petition to institute their respective appeal to be regarded treated and dealt with as if there was an appeal by each of the persons joining in that petition of appeal. When dealing with such an appeal it will be open to the Appellate Court under Section 421 of the Code to summarily dismiss the appeal of one of the appellants and to proceed with the appeal of the others. And such an appeal is liable toabate under Section 481 of the Code to respect of the appellant who dies bat the appeal of the others shall proceed. Every convicted person has a right to appeal and it is immaterial if they file one petition of appeal or separate petitions of appeal. After all even though there are separate petitions of appeal all the appeals are to be heard together as they arise out of the same judgment. The question of filing separate petitions of appeal or joining in one petition of appeal does not involve substantive rights but involves only questions of procedure. The procedure of more than one convicted person joining in one petition of appeal has all along been followed in this Court and we are not satisfied that this involves any irregularity or illegality.
6. We have been referred to the decision on this point of a Division Bench of Gujrat High Court as also a decision on the same point by the Full Bench of the same High Court, reported in : AIR1962Guj250 . Lalu Jela v. State of Gujarat and : AIR1962Guj125 (FB). With respect we agree with the reasonings of the Full Bench in preference to the reasoning of the Division Bench. The difficulties pointed out by the Division Bench are as we have discussed above no difficulties of substance
7. We hold therefore that the order of the learned Additional Sessions Judge dismissing the appeal of the petitioners on the ground of non-maintainability cannot be sustained.
8. In the result, the Rule is made absolute. The order of the learned Additional Sessions Judge dismissing the appeal of the petitioners is set aside and the record be sent down to the learned Judge for the appeal of these three petitioners to be heard in accordance with law. Pending the hearing of their appeal the petitioners will continue on the same bail.
T.P. Mukherji, J.
9. I agree