# SHYAM DEO PANDEY & ORS v. STATE OF BIHAR

- **Citation:** [1971] Supp. 1 S.C.R. 133
- **Court:** Supreme Court of India
- **Decided:** 1971-03-23
- **Case number:** Criminal Appeal No. 283 of 1968
- **Bench:** C. A. Vaidialingam, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shyam-deo-pandey-ors-v-state-of-bihar-5503
- **Pages:** 13

## Headnote

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Code of Criminal Procedure (Act 5 of 1898), s. 423-Absence of appellants and counsel al the time of final disposal-Dismissal on meritsDuty of ~ppellate court to peruse records.
The appellants were convicted and sentenced for the offence of kidnapping. They filed an appeal which was admitted by the High Court
and notice was ordered to be issued.
On tho date on which the appoal
C
was posted for hearing neither the appellants nor their counsel appeared
.and the High Court dismissed the appeal in the following terms: 'On perusal of the Judgment under appeal I find no merits in the case. It is ac-
.cordingly dismissed.'
On the question whether the disposal of the appeal by the High Court
is in conformity .with s. 423, Cr. P. C.,
HELD: lf a criminal appeal by the accused is not dismissed summa-
~
rily uoder s. 421 of the Code and notice as required by s. 422 is issued.
then, under s. 423, it is obligatory for the appellate court to send for the
record, if it is not already before the Courl After the records are before
the court and the appeal is set down for hearing, it is essential that the
appellate court should: (a) peruse such record; (b) hear the appellant or
his pleader if he appears; and (c) hear the public prosecutor if be appears.
After complying with these requirements, the appellate court has full power
E
:to pass any of the orders mentioned in the section. If the appellant and
his counsel are not present the appellate court cannot dismiss the appeal
for default. The court has either to adjourn the hearing of the appeal to
enable them to, appear or it should consider the appeal on merits and
pass final orders. The tonsideration of the appeal on merits at the stage
-0f final hearing and deciding the appeal on merits and passing final orders
will not be possible unless the reasoning and findings recorded in the judg~
ment under appeal -are tested in the light of the record of the case. While
p
there i<.; no emphasis on the perusal of the record in s. 421 at the admission
stage, under s. 423, one of the essential requirements and a condition pre~
cedent to a final disposal of the appeal either by dismissing it or in any
other manner contemplated by the section.
is that. the appellate court
·should peruse the record. The requirement regarding the perusal of the
record that has been sent for and received in court before disposing of an
.appeal is not an empty formality. On the contrary, the expressiqn •after
perusing the record' in the section assumes importance in the context of
G
the enormous powers that the appellate cour't has in the final disposal of
the criminal appeal.
Record of the case does not mean only the judgment, because, that must have already been perused under s. 421 when
the High Court admits the appeal
[140A-B, C, E, G-H; 141A-D, H; 1428C, 0-E, F-H; ,l43A-B]
In the present case, there is no indication in the order that it was
H
passed after perusing the record that must have been sent for as requtred
by s. 423(1). From the mere recital in the High Court's order that there
is no merit in the case it is not possible to infer that the High Court has
come to the conclusion after applying its judicial mind and after perusing ,
134
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the record. There must be a clear indication in the judgment or order of
the appellate court that it has applied its judicial mind to the particular
appeal it was dealing with.
Such an indication will be available when.
the appellate court bas considered the material on record which means.
not only the judgment and petition of the appeal, but also other relevant
materials. Since the impugned order of the High Court was passed without considering the material on record the order was not in conformity
with s. 423 of the Code and had to be to set aside.
[l43C-D, E-G, H;
144A-C]
Sankatha Singh v. State of U.P. [1962] Supp. 2 S.C.R. 817,

## Text

SHYAM DEO PANDEY & ORS.
v.
STATE OF BIHAR
March 23, 1971
133
A
[C. A. VAIDIALINGAM AND A. N. RAY, JJ.J
B
Code of Criminal Procedure (Act 5 of 1898), s. 423-Absence of appellants and counsel al the time of final disposal-Dismissal on meritsDuty of ~ppellate court to peruse records.
The appellants were convicted and sentenced for the offence of kidnapping. They filed an appeal which was admitted by the High Court
and notice was ordered to be issued.
On tho date on which the appoal
C
was posted for hearing neither the appellants nor their counsel appeared
.and the High Court dismissed the appeal in the following terms: 'On perusal of the Judgment under appeal I find no merits in the case. It is ac-
.cordingly dismissed.'
On the question whether the disposal of the appeal by the High Court
is in conformity .with s. 423, Cr. P. C.,
HELD: lf a criminal appeal by the accused is not dismissed summa-
~
rily uoder s. 421 of the Code and notice as required by s. 422 is issued.
then, under s. 423, it is obligatory for the appellate court to send for the
record, if it is not already before the Courl After the records are before
the court and the appeal is set down for hearing, it is essential that the
appellate court should: (a) peruse such record; (b) hear the appellant or
his pleader if he appears; and (c) hear the public prosecutor if be appears.
After complying with these requirements, the appellate court has full power
E
:to pass any of the orders mentioned in the section. If the appellant and
his counsel are not present the appellate court cannot dismiss the appeal
for default. The court has either to adjourn the hearing of the appeal to
enable them to, appear or it should consider the appeal on merits and
pass final orders. The tonsideration of the appeal on merits at the stage
-0f final hearing and deciding the appeal on merits and passing final orders
will not be possible unless the reasoning and findings recorded in the judg~
ment under appeal -are tested in the light of the record of the case. While
p
there i<.; no emphasis on the perusal of the record in s. 421 at the admission
stage, under s. 423, one of the essential requirements and a condition pre~
cedent to a final disposal of the appeal either by dismissing it or in any
other manner contemplated by the section.
is that. the appellate court
·should peruse the record. The requirement regarding the perusal of the
record that has been sent for and received in court before disposing of an
.appeal is not an empty formality. On the contrary, the expressiqn •after
perusing the record' in the section assumes importance in the context of
G
the enormous powers that the appellate cour't has in the final disposal of
the criminal appeal.
Record of the case does not mean only the judgment, because, that must have already been perused under s. 421 when
the High Court admits the appeal
[140A-B, C, E, G-H; 141A-D, H; 1428C, 0-E, F-H; ,l43A-B]
In the present case, there is no indication in the order that it was
H
passed after perusing the record that must have been sent for as requtred
by s. 423(1). From the mere recital in the High Court's order that there
is no merit in the case it is not possible to infer that the High Court has
come to the conclusion after applying its judicial mind and after perusing ,
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the record. There must be a clear indication in the judgment or order of
the appellate court that it has applied its judicial mind to the particular
appeal it was dealing with.
Such an indication will be available when.
the appellate court bas considered the material on record which means.
not only the judgment and petition of the appeal, but also other relevant
materials. Since the impugned order of the High Court was passed without considering the material on record the order was not in conformity
with s. 423 of the Code and had to be to set aside.
[l43C-D, E-G, H;
144A-C]
Sankatha Singh v. State of U.P. [1962] Supp. 2 S.C.R. 817,
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
283 of 1968.
Appeal by special leave from the judgment and order dated
May 10, 1968 of the Patna High Court in Criminal Appeal No. 453
of 1966.
S. N. Prasad, for the appellants.
R. C. Prasad, for the respondent.
The Judgment of the Court was delivered by :
Vaidialingam, J~The short question that arises in this
appeal, by special leave~ is whether the judgment and order of the
Patna High Court dated May 10, 1968, dismissing the Criminal
Appeal No. 453 of 1966, are in conformity with Section 423 of the
Code of Criminal Procedure, (hereinafter to be referred as the
Code).
The appellants, who are accused Nos. 2 to 5, along with the
first accused Sia Devi (wife of 5th accused) were tried by the
learned First Assistant Sessions Judge, Biharsharif, for an offence
under Section 363 of thq Indian Penal Code.
The case of the
prosecution was as follows :
One Kanta Kumari, an orphan minor, and niece of the complainant (P. W. I) Parmeshwar Pandey was under the lawful
guardianship and protection of the latter and residing with him
since the death of her parents.
At about 8 P. M. on February.
14, 1965, the fifth accused and his wife, the first accused, cameto the house of the complainant and called Kanta Kumari. Kanta
Kumari responded to the call by coming out. When she was questioned by her uncle as to where she was going out with the tw<>
accused, Kanta Kumari replied that she was going out for singing marriage songs_ Kanta Kumari went away with the two accused and returned home by about mid-night. In the morning ot
February 15, 1965, the complainant found that Kanta Kumari:
was ulissing from his house.
On a search m .. de by him, he came
to know 1hat Kanta Kumari was seen early th&t morning at about
s. D. PANDEY v. BIHAR (Vaidialingam,J.)
3 A. M. going in the company of all the five accused persons for
Ganga Ashnan.
He was expecting Kanta Ktnnari to return. But
on the evening of February 17, 1965, when he met the first and
the fifth accused in the village, he was informed by the fifth accused
that his paternal cousins, accused Nos. 2 and 3, had taken away
Kanta Kumari with them.
On receiving this information, Parmeshwar Pandey lost all hope of his niece Kanta Kumari coming.
back and on February 18, 1965' he filed a complaint before the
police alleging that his niece Kanta · Kumari, a minor, ha.s been
kidnapped from his lawful guardianship by the five accused.
All the five accused were charged under Section 363 I. P. C.
for kidnapping the minor girl Kanta Kumari on February 15,
1965 from the lawful guardianship of her uncle Parmeshwar
Pandey without his consent.
All the accused pleaded not guilty
before the tQal court and stated that they were falsely implicated
by Parmeshwar Pandey on account of long standing enmity.
In
particular they pleaded :
(a) that Parmes)lwar Pandey had no niece called
Kanta Kumari :
(b) they have not kidnapped Kanta Kumari ; and
(c) in any. case Kanta Kumari was not a minor as
alleged but was a major about 18 years of age.
The learned Assistant Sessions Judge by his judgment and
order dated August 31, 1966 substantially rejected all the pleas of
the accused.
The learned Judge held that the complainant Parmeshwar Pandey, who had given evidence as P. W. I had a niece
by name Kanta Kumari, who was living with him under his
guardianship as she had lost her parents.
Though Kanta Kumari
was not traced and as such she was not before the court, the learned Judge held that Kanta Kumari at the time of the occurre.ttce
must have been only 9 or 10 years old.
The learned Judge further held that accused Nos. 2 to 5 (appellants herein) have kidnapped Kanta Kumari, a minor girl, on February ·ts, 1965 from
the lawful guardianship of her uncle Parmeshwar Pandey withoqt
his consent and as such they were guilty of the offence under Se~
tion 363 I. P. C. Accordingly he convicted appellants of the
said offence and sentenced them to. undergo rigorous imprison·
ment for five years.
Each of them was also fined a sum of
{ls. 500 and in default of payment of fine to undergo further
rigorous imprisonment for six months.
The learned Judge, however, held that the case against accused No. I, Sia Devi has not
bec:n proved beyond reasonable doubt and as such acquitted her.
. The appellants filed Criminal Appeal No. 453 of 1966 in the
Patna High Court on September 8,. 1966 challenging the various
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findings recorded by the learned Assistant Sessions Judge and contending that those· findings were not supported by the evidence
adduced.
They also pleaded that their conviction is illegal.
In
particular they have pleaded that the finding regarding the age
of Kanta Kumari, when she has not appeared before the court is
based on pure conjecture and surmise and not on any legal evidB
ence.
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On September 9, 1966 the High Court admitted the appeal
and passed the following order :
"9.9.66 This appeal will be heard. Issue notice.
Pending the hearing of this appeal the appellants will
continue on bail to the satisfaction of the District Magistrate.
The realisation of fine also will remain stayed during
the pendency of this appeal."
The appeal was posted for hearing on May 10, 1968.
On
that date neither the appellants nor their counsel seems to have
appeared and the Court dismissed the appeal and passed the following order and judgment.
"10-5-68.
No one appears to press this appeal. On
perusal of the judgment under appeal, I find no merit in
the case.
It is accordingly dismissed."
The appellants on the same day filed Criminal Miscellaneous
Application No. 556 of 1968 praying for restoration of the Criminal Appeal which had been dismissed by the Court.
After issu·
ing notice in the said application, the High Court on July 12, 1968
dismissed the application for restoration on the ground that no
sufficient cause has been shown by the appellants. The appellants
filed an application for grant of a certificate under Article 134(1)
(c) of the· Constitution to appeal to this Court together with an
application to excuse delay in filing the application.
The High
Court dismissed this application on August 2, 1968. This Court,
however, on December 11, 1968, granted special leave to appeal
against the judgment and order of the High Court dated May
IO, 1968.
Mr. S. N. Prasad, learned counsel for the appellanis, raised
two contentions : (i) that the disposal of the appeal by the High
Court on May IO, 1968 is contrary to the terms of Section 423
of the Code ; and (ii) that the order pronounced by the High Court
is not a judgment as understood in law as it does not contain the .
point or points for determination, the decision thereon and the
reasons for the decision.
s. D. PANDEY v. BIHAR ( Vaidialingam, J.)
137
Mr. R. C. Prasad, learned counsel for the State, has urged
that the order dated May I 0, J 968 complies in all respects with
Section 423 of the Code.
He has further urged that Section 367
-0f the Code relating to the contents of the judgment does not apply
to the High Court and in this connection he relied on Section 424
-0f the Code.
In the view that we take regarding the first contention of Mr.
S. N. Prasad, that the judgment is not in compliance with Section
423 of the Code, we do not think it necessary to express any opi·
nion as to whether Section 367 applies to the judgment delivered
by the High Court as also the scope of Section 424 of the Code.
The question whether the High Court has got jurisdiction to restore a criminal appeal has also not been agitated before us.
The contention of Mr. S. N. Prasad is that the High Court
having admitted the appeal on September 9, 1966 and issued notice
to the State, it has no power under Section 423 of the Code to
<lismiss the appeal summarily as it has done on May 10, 1968. The
manner of disposal of the appeal, the counsel pointed out, shows
;a complete disregard by the High Court of the provisions of Section 423 of the Code enjoining the appellate court to look into the
entire record and give reasons for the decision arrived at. Accord·
fog to the counsel, this approac)l should be made by the appel·
late court irrespective of the fact whether the appellant or his
pleader or the public prosecutor for the State appears or not.
Mr. R. C. Prasad, learned counsel for the State, on the other
band, pointed out that the impugned order clearly shows that the
High Court has gone through the judgment of the trial court,
which was under appeal and as it found no merit in the case, it
<lismissed the same.
There is no illegality or any violation of
Section 423 of the Code in the manner of disposal of the appeal
by the High Court.
In order to appreciate the contentions taken by the counsel
-of both sides, it is necessary to advert to the material provisions
-0f the Code bearing on the point arising for consideration.
Part VII deals with Appeal, Reference and Revision. Chapter XXXI in the said part deals with Appeals. Section 410 of the
Code gives a right to any person convicted on a trial held by a
Sessions Judge or an Additional Sessions Judge to appeal to the
High Court.
Sub-section (i) of Section 418 provides that an appeal
may lie on a matter of fact as well as a matter of law, excepting
'Yhere the trial was by the Jury, in which case the appeal shall
he on a matter of law only.
The Explanation provides that the
alleged severely of a sentence shall for the purpose of Section 418
be deemed to be a matter of law.
Under Section 4)9, the appeal
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is to be made in the form of a petition in writing presented by the
appellant or his pleader. Unless the court otherwise directs, the
petition of appeal shall be accompanied by a copy of the judg·
ment or order appealed against.
Section 420 provides for the
manner of filling an appeal when the appellant is in jail. Sections
421, 422 and 423, which, in our opinion, are important are as
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follows :
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"Section 421.
(!) Summary dismissal of appeal :
On receiving the petition and copy under Section 419
or section 420, the appellate C01p:t shaill 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.
"S". 422. Notice of appeal :
If the Appellate Court does not dismiss the appeal
summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the Staie Government may appoint in this behalf, of the time and place
at which such appeal will be heard, and shall, on the
application of such officer, furnish him with a copy of the
grounds of appeal ;
and, in cases of appeals under Section 41lA sub-section (2) or section 417, the Appellate Court shall cause a
like notice to be given to the accused.
,
Section 423 : Powers of Appellate Court in disposing of
appeal :
(]) The Appellate Court shall then send for the record
of the case, if such record is not already in Court. After
perusing such record, and hearing the appellant or his
pleader, if he appears, and the Public Prosecutor, if he
appears, and, in case of an appeal under Section 4 llA,
sub-section (2) or Section 417, the accused, if he appears
the Court may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, roverse such order and direct that further inquiry be
made, or that the accused be retried or committed
•
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139·
for trial, as the case may be, or find him guilty and
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pass sentence on him according to law ;
(b) in an appeal from a conviction, (I) reverse
the finding and sentence, and acquit or discharge the
accused, or order him to be retried by a Court of
competent jurisdiction subordinate to such Appellate
Court or committed for trial or (2) alter the finding,
maintaining the sentence, or, with or without altering
the finding, reduce the sentence, or, (3) with or
without such reduction and with or without altering
the finding, alter the nature of the sentence, but,
subject to the provisions of section 106, sub-section
(3), not so as to enhance the same ;
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(c) in an appeal from any other order, alter or
reverse such order ;
(d) make any amendment or any consequential
or incidental order that may be just or proper.
(IA) Where an appeal from a conviction lies to
the High Court, it may enhance the sentence, notwithstanding anything in consistent therewith con'
tained in clause (b) of sub-section (I) :
"Provided that the sentence shall not be so enhanced, unless the accused has had arr opportunity of showing
cause against such enhancement.
(2) Nothing herein contained shall authorise the
Court to alter or reverse the verdict of a jury, unless it
is of opinion that such verdict is erroneous owing to a
misdirection b¥ the Judge, or to a misunderstanding on
the part of the jury of the law as laid down by him."
From the scheme of the sections referred to above, the following facts emerge :
The appellants had a right under Secion
410 to file an appeal to the High Court against their conviction.
Under Section 418 they were entitled to challenge the correctness
of the findings of the trial court, both on facts and law, as admittedly their trial was not by the jury.
They were also entitled as
a matter of law to urge the severely of the sentence imposed on
them.
The appellants had filed the appeal in due form as required by Section 419 accompanied by a copy of the judgment
or order appealed against.
Under Section 421 the Appellate
Court is bound to peruse the appeal petition and the copy of the
jud~ent or order appealed against
If the Appellate Court, on
perusal of the same, considers that there was no sufficient ground
for interfering with the judgment and order appealed against, it
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can dismiss the appeal summarily.
Under sub-section (2) of Section 121, it is open to the Appellate Court before dismissing the
appeal to call for the record of the case ; but it is not mandatory
that the Appellate Court should call for the record. The stage
under Section 421 is to enable the Appellate Court to decide
whether the appeal should be admitted or dismissed summarily. In
the case before us on September 9, 1966 when the High Court
ordered "this appeal will be heard.
Issue notice", it is clear that
on perusal of the petition of appeal and the judgment of the
Sessions Court, the High Court did not take the view that there
was no sufficient ground for
interference so as to
dismiss the
appeal summarily.
On the other hand, the order of the High
Court, extracted above, clearly indicates that the appeal is to be
heard and disposed of on merits and for that purpose it issued
notice to the State.
In fact the provisions regarding issue of
notice as provided under Section 422 has also been followed by
the High Court.
The procedure under Section 422 has to be
followed. only when the appeal is not dismissed summarily under
Section 421.
In this case the stages envisaged by Sections 421
and 422 have passed.
The appeal has been admitted and taken
on file and notice must have been also issued to the appellants
or their counsel, as envisaged in the section.
Coming to Section 425, which has already been quoted above,
it deals with powers of the Appellate Court in disposing of the
appeal on merits.
It is obligatory for the Appellate Court to
,send for the record of the case, if it is not already before the
Court.
This requirement is necessary to be complied with to
enable the court to adjudicate upon the correctness or otherwise of
the order or judgment appealed against not only with reference
to the judgment but also with reference to the records which will
be the basis on which the judgment is founded.
The correctness
or otherwise of the findings recorded in the judgment on the basis
of the attack made against the same, cannot be adjudicated upon
without reference to the evidence,
oral and documentary and
other materials relevant for the purpose.
The reference to "such
record" in "after perusing such record" is to the record of the
case sent for by the Appellate Court.
A reading of Section 423
makes it clear that a criminal
appeal cannot be dismissed for default of appearance of the
appellants or their counsel.
The court has either to adjourn the
!hearing of the appeal in order to enable them to appear or it
should consider the appeal on merits and pass final orders.
The
consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits so as to pass final orders
will not be possible unless the reasoning and fiindings recorded
in the judgme11t under appeal are tested in ihe light of the record
•
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s. o. PANDEY v. BIHAR (Vaidialingam,J.\
of the case.
After the records are before the court and the
appeal is set down for hearing, it is essential that the Appellate
Court should : (a) peruse such record, (b) hear the appellant or
his pleader, if he appears, and (c) hear the public prosecutor, if
he appears.
After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in
the section.
It is to be noted that if the appellant or his pleader
is not present or if the public prosecutor is not present, it is not
obligatory on the Appellate Court to postpone the hearing of the
appeal.
If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction
to proceed with the disposal of the appeal ; but that disposal
must be after the Appellate Court has considered the appeal on
merits.
It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant
or his counsel or the public prosecutor is present ·or not.
Even
if the appeal is disposed of in their absence, the decision must
be after consideration on merits. Under Section 421 the Appellate Court has to decide whether the appeal is to be taken. on
file or dismissed summarily.
The obligation of the court at that
stage is only to peruse the petition of appeal and the copy of the
order or judgment appealed against
A summary dismissal of
the appeal will then be legal if the Appellate Court considers
that there is no sufficient ground for interference.
But even in
su~h circumstances it has been held that a summary decision is
a judicial decision which vitally affects the convicted appellant
and in a fit case, it is also open to be challenged on an appeal
before this Court.
Though a summry rejection, without giving
any reasons, is not violative of any statutory provisions, such a
manner of disposal removes every opportunity for detection of
errors in the order.
It has been further held that when an appeal
in the High Court raises a serious and substantial point, which
is prima facie. arguable, it is improper for an Appellate Court to
dismiss the appeal summarily without giving some indication of its
view on the point The interest of justice and fair play require
that in such cases an indication must be given by the Appellate
Court of its views on the point argued before it
The earliest
decision on this. aspect is the one reported in Mushtak Hussein
'" The State of Bombay. (1)
The entire case law has been referred to and reiterated in Govinda. Kadtuji Kadam and others v.
The State of Maharashtra (2).
The recent decision on this
aspect is of Challappa Ramaswami v. State of Maharashtra.(')
We have referred to the above decisions to show that though a summary rejection by an Appellate Court under Section 421 may not
(I) [193S) S.C.R. 809.
(2) A.I.R. 1970 S.C. 1033.
(3) A.I.R. 1971 S.C. 64.
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be violative of the section, nevertheless when an arguable or substantial question arises for consideration, the Appellate Court in
its order should indicate its views on such point.
If the position is as indicated above that even under Section 421, which
contemplates dismissal of an
appeal summarily, under Section.
423, in our opinion, a very rigorous test must be applied to find
out whether the Appellate Court has complied with the provisions
contained therein. There is no emphasis on the perusal of the
recorc\ in
Section 421
whereas
under
Section 423
one
ot the essential requirement is that the Appellate Court
should peruse
the record.
There cannot be
any
controversy that Section 423 applies to cases in which appeals
have been presented and admitted.
Though Section 423 does not
provide any limitation on the power of the Appellate Court that
it is incompetent to dispose of the appeal, if the appellant or his
pleader is not present, nevertheless there is a limitation.
That
limitation, which is provided by the section is that the Appellate
Court, before disposing of the appeal, must peruse the record. No
doubt if the appellant or his pleader is present, he must be heard.
Similarly, if the public prosecutor is present, he too must be
beard. The Legislature in S. 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing
the appellant or any one on his behalf or the public prosecutor. The
expression "after perusing such record" in the section is, in our
opinion, a condition precedent to a proper disposal of an appeal
either by dismissing the same or in any. other manner contemplat·
ed in the said· section.' The powers which the Appellate Court in
criminal appeals possesses are depicted in Section 423.
It ha~
power not only to dismiss the appeal but also pass any one of the
orders enumerated in clauses (a),; (b), (c) and (d) and sub-section
(IA).
These provisions show the enormous powers which the
Appellate Court possesses in regard to a criminal appeal. These
powers, it cannot be gainsaid are very vast
Any one of the
orders, mentioned above, could be passed by the Appellate Court
whether the appeal is disposed of on hearing or without hearing
the appellant or his pleader.
These provisions, in our opinion,
clearly indicate the nature of a judgment or order that is expected
of the Appellate Court in its judgment.
It is in this context that
the expression "after perusing such record" assumes great importance. Absence of these words in Section 421, brings out in bold
contrast the difference in the nature of jurisdiction exercised under
the two sections.
It is not necessary to deal exhaustively with the connotation
of the expression "after perusing such record" occuring in Section
423(1).
That will depend upon the nature of the order or judg·
ment appealed against as well as the point or points that are
taken before the Appellate Court.
But one thing is clear. There
s. D. PANDEY v. BIHAR ( Vaidialingam, .1.)
must be a clear indication in the judgment or order of the Appel·
late Court that it has applied its judicial mind to the particular
appeal with which it was dealing.
Such an indication will be
available when the Appellate Court has considered the material
·OD record. which means not only the judgment and petition of
appeal, but also the other relevant
materials.
The Appellate
Court is bound to have looked into the judgment of the lower
court appealed against.
The petition of appeal must hav~ also
been looked into to know the nature of the attack that is made
against the judgment.
There will be other materials on record
and they will ljave to be perused by the Appellate Court.
The
nature of such perusal to be indicated in the Appellate judgment may also differ under different circumstances.
Applying the above tests, we find that the order passed by
the High Court in the case before us does not satisfy the above
requirement.
There is no indication in the order that it
was
passed .. after perusing the record" that it must have sent for as
required in the earlier part of Section 423(1).
Admittedly the
-0rder does not state that the court has perused "such record"
meaning the record sent for by it.
On the other hand, the recital
in the judgment is "on a perusal of the judgment under appeal. I
find no merit in the case."
Under Section 421. as we have
already pointed out. the High Court should persue the petition of
appeal and the copy of the judgment or order appealed against.
l;:ven for a summary rejection under Section 421, apart from perusal of the judgment, it is obligatory for the Appellate Court w
peruse the petition of appeal also.
The High Court in this cast
has admitted the appeal under Section 421 and issued notice. By
this it is clear that the High Court was of the opinion that there
were arguable points raised in the appeal, which required coi:·
sideration on merits under Section 423. Under Section 423 one
of the impor.tant requirement is that the Appellate Court must
peruse the record.
Record of the case does not mean only the
judgment, because that must have already been perused on September 9. 1966 under Section 421, when the High Court admitted
the appeal.
We have already poirted out that there is no indication in the order of the High Court that it has perused any
re~ord.
Without a perusal of the record of a particular case and
giving any indication of such perusal in the appellate order or
jud~ment. an .or.der. similar .to the o~e in question could be passed m any crunmel appeal m a routine manner. when the appellant. or his pleader does not appear or even in
appeals where
parties ha1·e been heard.
From the
mere recital in the High
Co':'rt's order ·that t~erc is no merit in the case, it is not possible
to mfer that the High Court has come :o that conclusion afrer
applying its judicial mind and
after per.i:.mg the record.
In
fact the conclusion that there is "no merit in the case" is arrived
143
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SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
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at, as the High Court itself says, only on the basis of its "perusal
of the judgment under appeal".
The requirement regarding the
perusal of the record that has been sent for and received in court.
before disposing of an appeal, is not to be treated as an ~rnpiy
formality, as is evident by the vast powers conferred on the Appellate Court to pass the various types of orders enumerated in the
section.
We are of the opinion, that in passing the impugned
order the High Court has not considered the material on record
before corning to the conclusion that there was no case for interference.
As such the order is not in conformity with Section 423
of the Code; hence it has to be set aside.
Mr. R. C. Prasad, learned counsel for the State, drew our
attention to the decision of this Court reported in Sankatha Singh
vs. State of U. P. (') and urged that a similar order has been
sustained by this Court.
We have gone through the said decision and it does not support the respondent.
This Court was
not dealing with an order passed by the High Court as an Appellate Court.
On the other hand, the Sessions Judge had dismisseJ
a criminal appeal stating that the appellants and their counsel
were absent and that he has perused the judgment of the trial court
and seen the record and that it finds no ground for interference.
This order was passed on November 30, 1956.
Later on, the
appellants had filed an application to the Sessions Judge for restoring the appeal to file.
On July 2. 1957 the Sessions Judge
allowed the application and restored the criminal appeal to tilt:
the appeal which had been dismissed on November 30, 1956.
But when the criminal appeal so restored came up for hearing
before the successor Sessions Judge, he took the view that the
order of restoration passed on July 2, 1957 by his predecessor
was illegal and without jurisdiction.
This order was challenged
in revision and the High Court agreed with the view of the Sessions
Judge that the original order of restoring the criminal appeal
to file was illegal. This Court held that the order of the HighCourt holding that the criminal appeal should not have been res·
tored, was correct.
Therefore, this Court was only dealing with
the correctness of the view of the High Court regarding the legality of the order of restoration passed by the Sessions Judge. This
Court has, no doubt, observed that the order passed on November
30, 1956 by the Sessions Judge after perusing tbe record and
judgment without giving any other reasons may not be a strict
compliance with the provisions of Section 367 of the Code and that
ii may be set aside by a superior court; but the point that was
emphasised was that the nature of the order passed by the Sessions
Judge on November 30, 1956 will not give power to the Sessions
Judge, an Appellate Court, to set aside the said judgment for the
(I) [1962] Supp. 2 S.C.R. 817.
s. D. PANDEY v. BIHAR (Vaidialingam, J.)
145
purpose of rehearing the appeal.
Therefore, the above facts
A\
clearly show that the point that we have decided in this appeal
never arose for consideration in that decision.
To conclude the appeal is allowed. The judgment and order
of the High Court dated May 10, 1968 in Criminal Appeal No. 453
of 1966 are set aside and the said appeal is remanded to that ' R
court for hearing and disposal according to Jaw and in the light
of the observations contained in the judgment.
V. P. S.
Ap~ea/ allowed.