K. T. DESAI, M. R. MODY, J. M. SHELAT, J.

( 1 ) THIS is a criminal appeal by five persons who were convicted after a single trial by the Sessions Judge of Panch Mahals. Two other persons convicted at the same trial have filed separate appeals. When the appeal came up for admission some difficulties presented themselves. One of them arises out of section 421 Cri. Pro. Code which reads as under: (1) On receiving the petition and copy under section 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.

( 2 ) AS the appeal by the five convicted persons was filed as one appeal the question is whether under section 421 Cri. Pro. Code a part of the appeal namely that relating to one of the convicted persons or the appeals of some of the convicted persons can be dismissed summarily under section 421 To dismiss the appeals of one or some of the convicted persons summarily is not provided for or contemplated in section 421.

( 3 ) WHEN one appeal has been filed either that appeal has to be dismissed summarily or that appeal has to be heard on the merits and decided. When one appeal has been filed to dismiss part of it summarily while deciding to hear the remaining part of it on merits would be to do violence to section 421 and to treat one appeal in fact as several appeals. The difficulty presented by section 421 would not be there if every convicted person has to file a separate appeal. A similar difficult arises out of section 431 Cri. Pro. Code which reads as follows:every appeal under section 411a sub-section (2) or section 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.

( 4 ) THIS section does not provide for or contemplate abatement of an appeal in part. If one appeal is filed by three convicted persons B C and D and D one of them dies to order that the appeal of D abates and to order that the appeals of B and C should be heard would be to do violence to the language of section 431 and to treat the appeal really as three appeals.

( 5 ) ANOTHER difficulty is presented by section 423 Cri. Pro. Code subsection (b) of which provides as under:the appellate Court may in an appeal from a conviction (1) 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.

( 6 ) THE powers of Appellate Court in disposing of appeals are contained in this section. When the appellate Court admits an appeal it can dispose of it in the manner prescribed in sub-section (b) of sec. 423 (1) Cri. Pro. Code namely (1) reverse the finding and sentence and acquit or discharge the accused or order him to be tried 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. These three alternative powers are given to the appellate Court. When disposing of an appeal it can adopt only one of these three alt

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