Pratap Singh v. The State of Vindhya Pradesh (Now Madhya Pradesh)

Imam J. his petition of appeal in pereon his position is entirely

different from a person who is unable to do so because he is in jail. Similarly, a convicted person whether in jail or not who can present his petition through a pleader is in a different position from a convicted per-son who is in jail and is unable to present his petition through a pleader. The Code intended in the case of a convicted person who presents his petition of appeal while in jail that his petition and the judgment of the court which convicted him must be considered by the Appellate Court before it is summarily dismissed, otherwise the right of appeal conferred on such a per-son under s. 410 would be meaningless. In the case of such a person no question could arise of his being heard in person because he has not presented the appeal in person nor could there be any question of his pleader being heard because no pleader had been engaged by him to present the appeal. Different con-siderations arise in the case of a convicted person who presents his petition of appeal in person or through a pleader in which case he or his pleader mtrnt be heard before the appeal is summarily dismissed. There is, therefore, a rational basis for making the classification into three categories which has a reason-able connection with the object of tho Code. It could not therefore be said that the proviso to s. 421 offends againr;t the provisions of Art. 14 of the Consti-tution.

It was, however, contended that although an appeal filed under s. 420 may have been dismissed summarily a subsequent appeal filed through a plea-der ought tu have been heard and the Judicial Commissioner erred in holding that the appeal did not lie. The appeal could not have been sum-marily rejected without the pleader having been heard. From that point of view the provisions of r96o s. 421 had not been complied with. It is sufficient to say that if the order dated Octobe.r 28, 1955, dismis-Pratap Singh v. sing the appellant's appeal under s. 420 was lawful, The State of a second appeal from the same judgment of convic-Vindhya Pradesh tion presented through a pleader was not maintain- (Now Madhya able because the previous order of the High Court Pradesh) dismissing the appeal was final under s. 430 of the Imam J. Code of Criminal Procedure. Certain cases were relied upon to which reference has been made by the Judicial Commissioner. Those cases can be distin-guished from the present case. In none of them was it decided that where an order dismissing the appeal is lawful a subsequent appeal filed through a pleader was maintainable. In our opinion, there is no sub-stance in this point, once it is held that the order dated October 28, 1955, was a lawful order which, we think, it was, as in our opinion the proviso to s. 421 in no way offends against the provisions of Art. 14 of the Constitution. The appeal is accordingly dis-missed.

Appeal dismissed.

KEKI BEJONJI AND ANOTHER

v.

November z8.

THE STATE OF BOMBAY.

(JAFER IMAM, K. SUBBA RAO and

RAGHUBAR DAYAL, JJ.)

Criminal Trial-Search-Recovery of articles-Denial of -all knowledge of articles recovered-No questions put on articles re-covered-accused, if prejudiced-Presumption-Servant in premises of master-Whether in possession of master's goods-·Code of Crimi-nal Procedure, z898_(V of I898), s. 34z-Bombay Prohibition Act, I949 (Bom. z5 of z949), ss. 65(b), 65(f), 66(b).

During the search of the premises of the appellant No. I a complete working still was found which was being worked by the appellant No. I and his servant, appellant No. 2. The Presidency Magistrate was satisfied that a working still and

CRIMINAL APPELLATE JURISDICTION. Criminal Appeal No. 106 of 1956.

Appeal from the Judgment and Order dated the 7th April, 1956, of the former Judicial Commissioner's

Court, Vindhya Pradesh, Rewa in Misc. Ori. Applica-tion No. 70 of 1956.

Pratap Singh

v. A. D. Mathur for the Appellant.

The State 0! d B. K. B. Naidu and I. N. Shroff for the Respon-Vtndhya Pradtsh t (Now Madhya en .

Pradesh) 1960. November 18. The Judgment of the Court

was delivered by Imam]. IMAM, J.-The Judicial Commissioner of Vindhya

Pradesh granted a certificate under Art. 132(1) of the Constitution of India as in his opinion the case in-volved a substantial question of law as to the inter-pretation of the Constitution. Hence the present appeal.

The appellant was convicted under s. 307, Indian Penal Code and s. 19(f) of the Indian Arms Act by the Sessions Judge of Chatarpur. He was sentenced to 10 years' rigorous imprisonment under s. 307, Indian Penal Code and to 3 years' rigorous imprison-ment under s. 19(f) of the Indian Arms Act. He filed an appeal while he was in jail which was summarily dismissed on merits on October 28, 1955. Thereafter, on October 31, 1955, he filed a Memorandum of Appeal through a pleader which was rejected on November 1, 1955, on the ground that it was not maintainable owing to his appeal from jail under s. 420 of the Code of Criminal Procedure having been dismissed on Octo-ber 28, 1955.

Thereafter, he filed a petition before the Judicial Commissioner that the order dated Oct-0ber 28, 1955, dismissing his appeal from jail should be reviewed and his appeal should be reheard on merits. This petition was also dismissed by the Judicial Commis- ~oner. The appellant had prayed for a certificate under Arts. 132 and 134( c) of the Constitution. '!;he Judicial Commissioner was of the opinion that no ground had been established for grant of a certificate under Art. 134(c) but a certificate should issue under Art. 132(1).

The only question for determination in this appeal is whether the case involves any substantial question of law as to the interpretation of the Constitution. It had been urged before the Judicial Commissioner that r960 s. 421 of the Code of Criminal Procedure which ena-bled a court to dismiss an appeal filed by a convicted Pratap Singh v. person, while he was in jail, without hearing him The state of offended against Art. 14 of the Constitution as it dis-Vindhya Pradesh criminated between him and a convicted person who (Now Madhya presented his appeal either in person or through a Pradesh) pleader. Imam].

Before we consider whether s. 421 of the Code of-fends against the provisions of Art. 14 of the Consti-tution it is desirable to set out shortly the scheme of appeals under Chapter XXXI of the Code of Criminal Procedure before its amendment which came into force in 1956. Section 404 expressly states that no appe;i.l shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. This provision is in accordance with the general principle that no appeal lies as a matter of right unless the right of appeal is conferred by law. There are various pro-visions in Chapter XXXI providing for an appeal from various orders and sentences passed by the Crimi-nal courts. Section 410 enables any person convicted at a trial held by a Sessions Judge or an Additional Sessions Judge to appeal to the High Court. The Court of Judicial Commissioner, Vindhya Pradesh, was a High Court for the purposes of the Code. The appeal of the appellant from jail against his convic-tion and sentence by the Sessions Judge therefore lay to the Court of the Judicial Commissioner. Under s. 418 an appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case, the appeal would lie only on a mat-ter of law, except ,in a case where a person had been sentenced to death, his appeal would lie on a matter of fact as well as a matter of law alt.hough he was tried by a jury. The section also enables any other person convicted at the same trial with a person so sentenced to appeal on a matter of fact as well as a matter of law. Section 419 enjoins that every appeal shall be made in the form of a petition in writing pre-sented by the appellant or his pleader and every such

i96o petition shall, unless the court to which it is pre-PYatap Singh sented otherwise directs, be accompanied by a copy

v. of the judgment or order appealed against and in cases The State of tried by jury a copy of the heads of the charge record-Vindhya Pradesh ed under s. 367. Section 420 enables a person who is (Now Madhya in jail to present his petition of appeal and the copies

Pradesh) accompanying the same to the Officer-In-charge of the

jail who shall thereupon forward such petition or copy Imam j. to the proper Appellate Court. Under s. 421 on receiv-

ing the petition and copy under s. 419 or s. 420 the Appellate Court shall peruse the same and if it consi-ders that there are no sufficient grounds for interfer-ing, it may dismiss the appeal summarily. There is a proviso to this section which states that no appeal presented under s. 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportu-nity of being heard in support of the same. The only other section for the purpose of this appeal, to which reference need be made, is s. 430 which states that judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provid-ed for in s. 417 and Chapter XXXII.

It will be seen from these provisions of the Code that a convicted person, in cases where an appeal is provided for by the Code, may file a petition of appeal in writing presented by him or his pleader and that if he is in jail he may file his petition of appeal through the jail authorities who arc obliged to for-ward the petition to the Appellate Court concerned. Whether an appeal is filed under s. 419 or under s. 420 of the Code, the Appellate Court has been expressly authorized, after perusing the petition of appeal and copies of the judgment or charge to the jury, if it con-siders that there is no sufficient ground for inter-ference, to dismiss the appeal summarily. In the pre-sent case, the appellant was in jail and he presented his petition of appeal to the Court of the Judicial Commissioner under s. 420 through the jail authori-ties. It was summarily dismissed on merits on Octo-ber 28, 1955. If that order was lawfully made the decision of the Appellate Court was final under s. 430 of the Code. Consequently, the appeal presented by the appellant through his pleader on October 31, 1955, was patently not maintainable.

We come now to the question whether s. 421 Pratap Singh v. offends against the provisions of Art. 14 of the Con-The state of stitution which states that the State shall not deny to Vindhya Pradesh any person equality before the law or the equal pro- (Now Madhya tection of the laws within the territory of India. This Pradesh) Court has decided in many cases what are the matters J. to be considered in order to determine whether a Imam particular pie,ce of legislation is discriminatory and consequently in contravention of the provisions of Art. 14. It is unnecessary to refer to them. The object of Chapter XXXI of the Code of Criminal Pro-cedure was to make provisions for appeals against conviction in certain cases. Where no appeal is pro-vided by th.is Chapter no further question arises because no one can claim that he has a right to appeal from any decision of a criminal court. Every person convicted at a trial held by a Sessions Judge or an Additional Sessions Judge has been given the right to appeal to the High Court by virtue of the provisions of s. 410 of the Code. The right to appeal having been so given the Code provided the manner in which such appeal should be presented which is to be found in ss. 419 and 420 of the Code. These two sections contemplate various possibilities (1) that a convicted person who is not in jail presents his peti-tion of appeal in person; (2) that a convicted person though unable to present his petition of appeal perso-nally owing to various reasons, inclucVng his being in jail, can present it through his pleader and (3) where the convicted person is in jail and thus unable to pre-sent his petition in person, and is unable to engage a pleader to present his petition of appeal, can present it through the jail authorities. Where the convicted person presents his appeal in person or through a plea-der under s. 421 his appeal shall not be dismissed sum-marily unless he or his pleader is given a reasonable opportunity of being heard in support of his petition.

No such consideration arises in the case of a convicted person who is unable to present his petition in person or through a pleader. There is a rational basis for

'960 making the classification mentioned above which has Pratap Singh a reasonable connection with the object of the legisla-

v. tion providing for appeals under Chapter XXXI. The state of Under s. 410 there is no discrimination as any person Vindhya Pradesh convicted at a trial held by a Sessions Judge or an (Now Madhya Additional Sessions Judge may appeal to the High

Pradesh) Court. 'Vhere the convicted person is able to present