SWARTH MAHTO Vs. DHARMDEO NARAIN SINGH

JUDGEMENT

(1.) This is an appeal by special leave. The appellants who were accused Nos. 1 and 3 respectively were acquitted by the learned Munsif Magistrate 1st Class, Aurangabad on March 19, 1966. The case against them had been started on a compliant filed by the respondent for an offence under S. 420 of the Indian Penal Code. Aggrieved by the acquittal, the respondent filed an appeal under S. 417 (3) of the Code of Criminal Procedure and the same was registered as Criminal Appeal No. 52 of 1966 in the Patna High Court. The order-sheet shows that notice was issued to the appellants on July 5, 1966. In pursuance of the notice, the appellants appeared in the case on July 28, 1966 through Shri Kedar Nath Verma, Advocate. By some mistake, neither the name of the appellants nor of their advocate Shri Kedar Nath Verma appeared in the cause list, and the case was heard in their absence on December 16 and 17, 1968. The appeal was allowed and the appellants were convicted of the offence under Section 420 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rupees 500/- each. The appellants came to know of this order subsequently. On January 7, 1969 an application was made to the Court for rehearing the appeal, in the presence of the appellants. That application was dismissed on January 24, 1969, the Court holding that no opportunity had been denied to the appellants of being heard.

(2.) The only question before us is whether a reasonable opportunity had been given to the appellants of being heard before the order of acquittal was converted into one of conviction. The appellants have also challenged their conviction but, on the view we are taking on the above question, we do not think that we should enter into the merits of the case.

(3.) As already stated, notice was issued to the appellants on July 5, 1966. The case came on for hearing on December 4, 1968. The cause list for that date no doubt shows that Criminal Appeal No. 52 of 1966 was on the board; but neither the names of the appellants nor of their advocate, was mentioned in the cause list. On that day, the case was not heard. It came on board on December 11, 1968, but an order was made that it will not be taken up for hearing during that week. Then, it came on board on December 16, 1968. But the same mistake of not showing in the cause list either the name of the appellants or of their advocate was repeated. The learned Judge heard the appeal on that day and the next day and delivered judgment immediately convicting the appellants.