1. This Rule which was issued on limited grounds is directed against an order of conviction under Section 323 of the Indian Penal Code and a sentence of fine passed on the petitioner by Sri A. P. Goswami, Magistrate, 2nd Class, Burdwan which was confirmed on appeal by Sri H. N. Sen, Assistant Sessions Judge, Burdwan.
2. The two grounds on which the Rule was issued were these :
'Ground No. II: For that there has not been proper compliance with the provisions of Section 423 of the Code of Criminal Procedure and as Such the order of conviction ought to be set aside.Ground No. IV : For that the learned Judge has not considered the defence evidence at all and as such the order of conviction is bad in law.'
3. In my view, the more substantial point arising in this case is that the learned Judge has not considered the defence evidence at all.
4. The Prosecution case was that the complainant was staying with his wife in the house of his father-in-law. As the relevant date the petitioner entered into that house and uttered abusive words, in the presence of the complainant's wife at which the complainant protested. Then followed an altercation between the complainant and the petitioner in the course of which the petitioner, assaulted the complainant with fists and blows. At the time of the occurrence, it is stated, the complainant's father-in-law was away from home. Six witnesses were examined on behalf of the Prosecution and the petitioner also examined five witnesses on his behalf. The defence plea was that it was a false case instituted out ofa grudge which the complainant bore againsthim. Prosecution witnesses Nos. 3, 4 and 5 cameto assault the petitioner and it was the Prose- cution witnesses Nos. 3, 4 and 5 who beat thepetitioner.
5. It appears that on 14th of September, 1956, at the hearing of the appeal before the learned Assistant Sessions Judge neither the petitioner nor his lawyer was present but the complainant was represented. The learned Assistant Sessions Judge therefore went through the evidence on record in the absence of the petitioner or his Counsel. The learned Judge has covered several grounds as appeared from the Memorandum of Appeal before him. Mr. De appearing for the complainant, has contended that in the circumstances disclosed the High Court has no jurisdiction under Section 439 of the Code of Criminal Procedure to set aside the judgment of a Court below merely upon the ground that the Counsel on behalf of the petitioner was prevented from being, present in Court in time and therefore could not be heard. He relied upon two decision's of the Patna High Court in the cases of Olayet Khan v. Emperor, 24 .Cri LJ 118: (AIR 1922 Pat 587) (A) and Kewalram v. Emperor, 36 Cri LJ 1354: (AIR 1935 Pat 515) (B). In the latter case it was held that
'where the Advocate appearing for the accused in an appeal was not prepared to and did not argue the case on the merits after he had failed to persuade the Court that his client was entitled to a postponement of the hearing until an investigation had been made into the allegations which he then made and the judgment showed that without the assistance of the appellant's Counsel the Judge himself examined the evidence against the appellant and satisfied himself that the convictions were well-founded, it could not be said that there had been no hearing of the appeal against the conviction within the meaning of Section 423 of the Code of Criminal Procedure.'
With great respect to the learned Judge I am unable to agree with the principle of law decided by the Patna High Court in these cases. In a proper case where it is found that the appellant or his Counsel coul'd not be present in Court when the appeal was heard for no fault of theirs, it is the duty of the Court to adjourn the hearing of the appeal to enable the appellant to put forth his arguments before the Court. In this connection the observations made by their Lordships of the Judicial Committee of the Privy Council in the case of Galos. Hirad v. The King, AIR 1944 PC 93 (C), may be cited. Their Lordships Said,
'The importance of persons accused of a serious crime having the advantage of Counsel to assist them before the Courts cannot be doubted by anybody who remembers the long struggle which took place in this country and which ultimately resulted in such persons having the right to be represented by Counsel: See Holdsworth History of English Law, Vol. 9, page 226.'
Their Lordships went further to observe that
'Just as a conviction following a trial cannot stand if there has been a refusal to hearthe Counsel for the accused, so it seems totheir Lordships, an appeal cannot stand wherethere has been a refusal to adjourn an appealin which the appellant was entitled as of rightto be heard by a Counsel assigned to him bythe Government who was unable without anydefault on his part to reach the Court in timeto conduct the appeal.'
Here, in this case, although the offence charged was not a very serious one, I think, the same principles would apply.
6. It is quite clear to me from the records that there was some sort of occurrence in which both the parties were involved. The learned Judge considered the question of mutual fight and held that it was the petitioner who was the aggressor. The judgment of the trial Court which was placed lbefore me by the learned Advocate for the complainant opposite party has dealt with the evidence of the defence witnesses in detail and in the judgment it has,also been pointed out that Prosecution witness No. 3 had admitted that Prosecution witness No. 1, namely, the complainant and the accused beat each other. He has alsofound that the complainant, Prosecution witness No. 1, stretched his hands to save himself and what little was done by him was justified as it was done in the exercise of his right of private defence of body. In other words, the learned trial Court thought that the plea'of right of private defence was available to the complainant.
7. It is not necessary to go into the details of the respective cases of the parties as deposed to by Several witnesses. It is quite clear, however, that the appellate court did not at all consider the evidence of the defence' witnesses which was dealt elaborately by the trial Court. In my judgment, the petitioner is entitled to a finding of fact from the final court of fact which is the lower appellate court in this 'case.
8. I therefore set aside the order passed by the learned Assistant Sessions Judge dated the 15th of September,.- 1956, and direct that the appeal be re-heard in accordance with law by a learned Judge other than Sri H. N. Sen.
9. The Rule is accordingly made absolute.