MANI Vs. STATE

JUDGEMENT

(1.) THIS revision is by the accused in C. C. No. 3481 of 1977 on the file of the Judicial Second Class Magistrate, Maduranthakam. He was convicted for an offence under section 325, Indian Penal Code, and was sentenced to imprisonment till the rising of the Court and was further sentenced to pay a fine of Rs. 500, in default to suffer rigorous imprisonment for three months. As against the conviction and sentence by the Judicial Second class Magistrate, he preferred an appeal C. A. No. 88 of 1978 before the Chief judicial Magistrate, Chingleput, and the lower appellate Court has dismissed the appeal, confirming the conviction and sentence.

(2.) MISS. V. G. Parvathavarthini, learned Counsel for the petitioner, apart from vehemently urging certain points on merits, for the purpose of setting aside the conviction and sentence passed by the two Courts below, points out that the lower appellate Court has not applied its mind at all and has not considered the case on merits within the meaning of section 386 of the Criminal Procedure Code. The learned Counsel took me through the judgment of the lower appellate Court and I find that the grievance of the learned Counsel is well founded. The lower appellate Court has not discussed the evidence of witnesses either of the prosecution or of the defence. The following extract from the judgment of the lower appellate Court clearly indicates that it has not independently applied its mind to adjudicate upon the correctness or otherwise of the judgment appealed against such an appraisal for the purpose of adjudication could be done only with reference to the evidence, oral and documentary and other relevant materials on the record. A bare reference to P. Ws. without even discussing the gist of their evidence is not what is required of an appellate Court under section 386, Criminal Procedure code. There should be a conscious application of the mind of the Court to the evidence, oral and documentary on record independent assessment of the same, and adjudication over the same for the purpose of disposal of the appeal. In the instant case, there is a glaring omission of this judicial application of mind enjoined upon the lower appellate Court and this compels me to interfere in revision. The Supreme Court in Shyam Deo v. State of Bihar1, delineated the manner and method in which an appellate Court should dispose of the appeal as enjoined by the statutory provision. The following passage occurring in the said judgment is very elucidative: 'it is not necessary to deal exhaustively with the connotation of the expression'after perusing such record' occurring in section 432 (1 ). That will depend upon the nature of the order or judgment appealed against as well as the point or points that are taken before the appellate Court. But one thing is clear. 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 with which it was dealing. Such an indication will be available when the appellate Court has considered the material on record, which means not only the judgment and petition of appeal, but also the other relevant materials. Appellate Court is hound to have looked into the, judgments of the lower Court appealed against. The petition of appeal must have 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 have 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.' Obviously, there has been no conformity with the above principle by the lower appellate Court. Nothing appears from its judgment that there has been an independent reappraisal of the evidence on record. Accordingly, this revision is allowed, the judgment of the lower appellate court is set aside and the appeal will stand remitted back to the file of the lower appellate Court for it to dispose it of in accordance with law. Revision allowed.