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Criminal Revision No. 5 of 1959, decided on 20th October 1959

S. 421‑Summary dismissal of appeal‑Court to carefully peruse lower Court's judgment, grounds of appeal, and record, if already sent for‑Power to be used sparingly, with " very great " caution, and not without opportunity given to appellant or his counsel for being heard‑Brief reasons for summary dismissal to be given.

Section 421, Cr. P. C. does not invest the Court with powers of summary dismissal of appeal to the extent of dismissing it without carefully ascertaining whether the case does or does not call for interference. This step in itself involves a careful perusal of the judgment, the grounds of appeal, and the record of the case, if the Court has chosen to send for it. If this study leads the Court to the conclusion that the appeal merits a summary rejection, the Court may do so, but this power should be exercised sparingly and with very great caution and not until an opportunity has been afforded to the appellant or his counsel for being heard in support of the appeal. It is not necessary under the law to write out a detailed order, but however concise it may be, it should at least indicate that the Court it had under stood the case and for this purpose it is necessary that it should briefly give reasons for the summary dismissal of the appeal.

S. 423‑Criminal appeal‑No provision for dismissal in default‑Court must decide points of fact and law arising in appeal.

When an appeal survives a summary dismissal, and enters the stage of sections 422 and 423, Criminal Procedure Code, it calls for a more intensive perusal and examination of the record by the Appellate Court for deciding points of fact and law arising therein. This is so whether or not the Court has had the benefit of address by the counsel. But under no cir cumstances and at no stage can a criminal appeal be dismissed in default of the presence of the appellant or his counsel without reference to the merits of the appeal itself.

Where the Sessions Judge had dismissed the appeal in default owing to the non‑appearance of the appellant and his counsel, and had rejected the appellant's application for a re‑hearing, the High Court set aside the order of summary‑ dismissal and directed a re‑hearing without any comments on the merits of case after notice to the appellant and his counsel.

Virasat Ausain Naqvi for Petitioner.

Dilawar Mahmood for A. G. for Respondent.

Date of hearing : 20th October 1959.

Ghulam Muhammad, a goldsmith of Gujranwala, was con victed under section 406, P. P. C. and sentenced to one year's rigorous imprisonment by Mr. Karam Din, section 30 Magistrate of Gujrat by his order, dated the 31st of July 1958. The charge against the accused related to his having misappropriated certain ornaments entrusted to him by some of his customers which he had failed to return to them. Ghulam Muhammad filed an appeal against his conviction and sentence in the Court of Additional Sessions Judge, Gujranwala at Gujrat, which was laid before the District Magistrate, who granted him bail in the exercise of (1) his delegated powers under section 17 (4) of the Criminal Procedure Code, and sent the appeal for disposal to the Sessions Judge, Gujranwala. The latter by his order, dated the 13th August 1958 sent the same for disposal to the Additional Sessions Judge, Gujrat. Subsequently, it came on the file of the Sessions Judge, Gujrat (Mr. Mohsin Tirmizey).

2. The first order, which is in Vernacular, signed by the learned Sessions Judge on the record is as follows :‑

When it was next laid before him on the 18th of October 1958, he fixed the 24th of October 1958 as the date of hearing in the appeal. No intimation was sent to the appellant personally about the date, but there is a chit at page 15 of the session's file requiring the Civil Nazir that the council for the appellant in Appeal No. 303 " Ghulam Muhammad v. The State " be directed to appear on the 24th of October, 1958 for conducting the appeal. There is an acknowledgment by the Advocate, Mr. M. A. Rafi, dated the 22nd of October 1958, on this chit itself in token of the intimation having been received. When on the 24th of October 1958 the appeal came up before the learned Sessions Judge, Gujrat, (Mr. S. M. Tirmizey), he disposed it of by a short order as follows:‑--

" Mr. Asad Ali Rizvi, A. P. P. Appellant's counsel not present in spite of service.

Dismissed in default ".

No direction appears on the record for the arrest of the accused after the dismissal of his appeal, which was necessary as he had been enlarged on bail.

3. On the 29th of October 1958, Ghulam Muhammad made an application to the learned Session's Judge, which is in Vernacular, at page 19 of the file, through his Advocate, Mr. M. A. Rafi, asking for the revival of the appeal which had been dismissed in default. The ground taken was that he had had no notice about the date of hearing and a letter which had allegedly been sent to him by a clerk of his counsel in this respect had not been received by him. He prayed that as his absence was not willful his appeal should be restored. On this the learned Sessions Judge wrote the following order in his own handwriting :‑

" Ghulam Muhammad.

His appeal was dismissed as his counsel failed to turn up inspite of service. I see no reason to restore the case. Application rejected. He be taken into custody ".

Ghulam Muhammad has come up in revision to this Court chal lenging his conviction and the orders made against him as mentioned above.

4. I regret to say that the orders of the learned Sessions Judge in this case dismissing the petitioner's appeal in default are devoid of legal sanction. If the learned Sessions Judge had, before dismissing the appeal, adverted to the relevant provisions of the law relating to criminal appeals as contained in Chapter XXXI of the Criminal Procedure Code, he would not have taken the action which he has, and a lot of resultant inconve nience and the prolongation of the case would have been avoided.

5. There is no provision in the Criminal Procedure Code for the dismissal of an appeal on account of the non‑appearance of the appellant or his pleader, such as exists in Order XLI, rule 17 of the Civil Procedure Code in respect of civil appeals. The Appellate Court in criminal appeals is bound, even in the absence of the appellant or his pleader, to peruse the judgment and the record, it it had been sent for, and decide the appeal judicially. This is so even in the case of a summary dismissal of an appeal as provided in section 421 of the Criminal Procedure Code which reads as follows :‑

" 421.‑(1) On receiving the petition and copy under sec tion 419 or section 420, 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:

Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had, a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so ".

It will be seen that under this provision the Appellate Judge is enjoined to read the judgment in the case and the petition containing the grounds of appeal so that before dis missing it, he should be able to find out that there is no sufficient ground for interfering in the order of the trial Court. He may, for this purpose, call for the record of the case although he is not legally bound to do so. Section 421, Criminal Procedure Code, does invest the Appellate Court with summary powers to reject an appeal but not to the extent of dismissing it without carefully ascertaining whether the case does or does not call for interference. And this step in itself involves a careful perusal of the judgment, the grounds of appeal, and the record of the case, if the Court has chosen to send for it. If this study leads the Court to the‑ conclusion that the appeal merits a summary rejection, the Court may do so, but this power should be exercised sparingly and with very great caution and not until an opportunity has been afforded to the A appellant or his counsel for being heard in support of the appeal. Although it is not necessary under the law .for the Judge to write out a detailed order dismissing an appeal under section 421, Criminal Procedure Code, yet I consider that his order, however concise it may be, should at least indicate that he had understood the case and for this purpose it is necessary that he should briefly give reasons for the summary dismissal of the appeal.

6. But when once an appeal is admitted, as was done in the present case, and notice is issued to the appellant or his pleader, than the appeal passes the stage of summary dis missal under section 421 and can only be dismissed under section 423 of the. Code of Criminal Procedure which entails the obligation on, the part of the Judge to send for the record of the case, if it is not already in Court the perusal of such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and he may dismiss it then, if he considers that there is no sufficient ground for inter ference in the decision of the lower Court.

7. It is, therefore, obvious that when an appeal survives a summary dismissal, and enters the stage of sections 422 anti 423, Criminal Procedure Code, it calls for a more intensive; perusal and examination of the record by the Appellate Court. for deciding points of fact and law arising therein. This is so whether or not the Court has had the benefit of address, by the counsel. But under no circumstances and at no stage can a criminal appeal be dismissed in default of the presence of the appellant or his counsel without reference to the merits of the appeal itself. The learned Sessions Judge was, therefore, clearly in error in dismissing this appeal owing to the non‑appearance of the appellant and his counsel in the first instance and again when he rejected the application for revival of the appeal with out adverting to the relevant provision of law. The learned A. P. P. who was present also did not advise the Court correctly on the matter. I have, therefore, no option but to set aside the order of the learned Sessions Judge and direct him to re‑bear this appeal after sending a notice of the date of hearing both to the appellant and his counsel. As I am ordering a re‑hearing of the appeal, I refrain from making any comments on the merits of the case.

A.H. Rehearing ordered.

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