PARAMAYAN Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of West Tanjore. One Paramayyan was convicted by the Sub Divisional Magistrate, Tanjore, for offences punishable under Section 454 (II) and Section 380 read with Section 75 I. P. C. and sentenced to rigorous imprisonment for nine months for each of the offences, the sentences to run concurrently. The conviction was imposed on 30. 5. 1964, and the accused preferred an appeal through jail authorities on 15. 6. 1964. It was forwarded by the Superintendent of the Central Jail, Cuddalore, on 16. 6. 1964, and was received at the Sessions Court, Tanjore, on 18. 6. 1964. It was taken up on file on the same day and numbered as C. A. 77 of 1964. On 26. 6. 1964, an appeal was presented on behalf of the accused, Paramayyan, by his advocate. This was taken up on file on the same day and notice was ordered to the Public Prosecutor and the records were directed to be sent up for the hearing on 17. 7. 1964. After the filing of the appeal by the advocate, the jail appeal preferred by the accused came up for disposal before the learned Sessions Judge, and he, after perusing the judgment and grounds of appeal, came to the view that no notice need be sent to the Public Prosecutor and also dismissed the appeal summarily on 27. 6. 1964. The appeal presented through counsel was numbered as C. A. 84 of 1964. That appeal was heard by the Sessions Judge on 17. 7. 1964, and was posted for judgment on 21. 7. 1964. During the hearing of the appeal, the attention of the learned Judge was not drawn to the fact that the appeal preferred by the accused from jail had already been disposed of. The learned Judge, after hearing the arguments and scrutinising the evidence, allowed the appeal, set aside the conviction and directed his release.

(2.) THE Superintendent, Central Jail Cuddalore, on receipt of the order of acquittal in C. A. 84 of 1964, was surprised, on account of receiving two inconsistent orders, one of the dismissal of the appeal and the other of allowing the appeal. He, therefore, brought the matter to the attention of the learned Sessions Judge and requested clarification. in these circumstances the reference is made.

(3.) THE jail appeal, C. A. 77 of 1964 was taken on file on 18. 6. 1964, and was dismissed on 37. 6. 1964, But before it was dismissed, that is, on 28. 6. 1984, the accused had preferred an appeal through counsel and that was numbered and was pending on the file of the Sessions Judge. The question for consideration is, whether the disposal of C. A. 77 of 1964 on 27. 6. 1964, when the appeal preferred by the accused through counsel (C. A. 84 of 1964) was pending, without notice to the counsel is valid. When once an appeal is preferred by an accused through counsel and is numbered,, it cannot be properly disposed of without notice to the counsel. So, in C. A. 84 of 1964, the accused is entitled to be heard by the counsel. As the appeal was preferred before the jail appeal, C. A. 77 of 1964, was disposed of, the jail appeal also cannot be disposed of without hearing the counsel. It has been held that, if an appeal had been preferred by an accused from jail and was disposed of, and, if subsequently an appeal is preferred by the-accused through counsel, the jail appeal is properly disposed of, and the appeal preferred by the accused through counsel cannot be entertained. Vide-Pratap Singh v. State of Vindhya Pradesh ; Kunhahamad Haji, In re ILR 46 Mad 382 : AIR 1923 Mad 426 and In re Neeladri Appadu 1946 MWN Crl. 96 : AIR 1947 Mad 243 (1 ).