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1935 Supreme(SC) 12
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, LORD THANKERTON, LORD RUSSELL OF KILLOWEN, SIR LANCELOT SANDERSON, AND SIR SHADI LAL.
THE KING-EMPEROR - Appellant
Versus
DAHU RAUT - Respondents
On Appeal from the High Court at Calcutta.
Decided On : March 1, 1935.
Solicitor for appellant: Solicitor, India Office.
Solicitors for respondents: Hardcastle Sanders & Co.; Clarke, Rawlins & Co. ; Watkins & Hunter.
When an appellate court finds sufficient grounds to interfere with a sentence, it cannot summarily dismiss the appeal; it must strictly comply with statutory requirements to provide notice to the state and call for the case records before passing any order.
Headnote:(A) Code of Criminal Procedure - Sections 421, 422 and 423 - Appellate Procedure - Summary Dismissal - Notice and Record - If an Appellate Court does not dismiss an appeal summarily under Section 421, it is mandatory to give notice as prescribed under Section 422 and send for the record under Section 423 - These provisions are peremptory and must be complied with before the disposal of the appeal.
(B) Code of Criminal Procedure - Section 439 - Revisional Powers - Revisional powers cannot be exercised at a stage to exclude compliance with the mandatory requirements of Sections 422 and 423 of the Code when an appeal is pending - The court is not entitled to go outside statutory provisions and cannot legislate for itself to bypass mandatory procedures.
Facts of the case:
Four petitions of appeal were filed against convictions and sentences. The Appellate Court reduced the sentences without issuing the statutory notices required under Section 422 to the appointed officer or calling for the records as mandated by Section 423. The court justified this by suggesting that the appeals were effectively summarily dismissed and the sentences were varied using revisional powers to avoid waste of time, labour, and expense.
Findings of Court:
The procedure adopted by the Appellate Court was in violation of its statutory duty. The court cannot summarily dismiss an appeal under Section 421 if it considers there are sufficient grounds for interfering with the sentence. Once the appeal is not summarily dismissed, the requirements of notice and record are mandatory for the disposal of the appeal.
Issues: Whether the Appellate Court is entitled to reduce sentences without complying with the notice and record requirements of Sections 422 and 423, and whether revisional powers under Section 439 can be used to bypass these mandatory appellate procedures.
Ratio Decidendi: The statutory procedure for appeals is a complete code. Section 421 allows summary dismissal only when the court is satisfied that there is no sufficient ground for interfering in accordance with the relief sought. If the court finds grounds to interfere, it is bound to comply with the peremptory provisions of Section 422 regarding notice and Section 423 regarding the record. Revisional jurisdiction is distinct and cannot be used to circumvent the mandatory steps of an active appeal.
Result: Appeals allowed.
Legal Category Hierarchy
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crime and sentencing
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criminal procedure
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appeals
- appellate procedure
- revision
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appeals
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criminal procedure
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practice and procedure
- jurisdiction
Judgement
Consolidated Appeal (No. 42 of 1934) by special leave from four orders of the High Court made in May and June, 1933.
The orders appealed from were made by Lort-Williams and McNair JJ. upon petitions of appeal, under
s. 419 of the Code of Criminal Procedure, by which the respondents severally appealed against convictions and sentences ordered by a criminal Court of first instance. In each case when the petition was before the Court for the purposes of s. 421 of the Code, and the prosecution not represented, the Court ordered a reduction of the sentence without the notices required by s. 422 having been given, or the record sent for in accordance with s. 423 of the Code.
The facts, the material sections of the Code, and the grounds upon which the learned judges supported the orders appear from the judgment of the Judicial Committee.
Upon the application for special leave to appeal reference was made to observations in the judgment of the Board in Reg. v. Bertrand (( 1867) 1 P. C. 520, 530.), in which the Crown successfully appealed by special leave upon a question of criminal procedure in New South Wales.
The Crown did not ask that there should be any interference with the reduced sentences.
1935. Feb. 5. Dunne K.C. and Wallach for the Crown. When an appeal has not been summarily dismissed under s. 421, it is imperatively provided by s. 422 that the notices there prescribed are to be given, and by s. 423 that the record is to be sent for if it is not already in Court. Those sections not having been complied with the orders were necessarily invalid. The revisional powers under s. 439 could not be exercised at that stage so as to exclude compliance with ss. 422 and 423. The orders do not purport to have been made under s. 439.
Abdul Majid and Pringle for respondents. Having regard to the statement by Lort-Williams J. it is to be presumed that the Court was intending to exercise its powers under s. 439, though the orders as drawn up omitted so to state. The requirements of s. 422 and s. 423 apply only to the appeal proceeding ; a failure to comply with them does not exclude the revisional powers. Those powers are additional to the powers in the appeal. For instance, a sentence can be enhanced in revision although it cannot in the appeal. [Reference was made to cases mentioned in the judgment.]
March 1. The judgment of their Lordships was delivered by
LORD THANKERTON. These are consolidated appeals by special leave from four judgments of the High Court of Judicature at Fort William in Bengal dated respectively May 29, May 29, May 31, and June 7, 1933, which reduced the sentences passed on the respective respondents by the respective criminal Courts of first instance on March 25, February 28, April 1, and March 18, 1933.
In each case the respective respondents presented petitions of appeal to the High Court against both the conviction and the sentence, in exercise of the statutory right conferred on them by the Code of Criminal Procedure, and the question in the present appeals is whether the orders of the High Court in each of the four cases, by which the sentences were reduced, were in conformity with the requirements of the Code. The Crown, as appellant, maintains that the orders were passed in violation of the statutory provisions and were beyond the jurisdiction of the High Court. The Crown desires to test the validity of the procedure adopted by the High Court, but does not ask for any interference with the reduction of the sentences made by these orders.
The sections of the Code which prescribe the procedure to be followed on presentation of a petition to the Appellate Court— in this instance, the High Court—are as follows —
" 419. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried b
