STATE Vs. GANGA SAHAI

JUDGEMENT

(1.) THIS is an appeal by the Uttar Pradesh State against Ganga Sahai who has been acquitted of the charges under Section 379 and 411, I. P. C. by a Magistrate.

(2.) I have heard Mr. Shri Rama on his motion for admission. He contended that the appeal must be admitted and that the motion for its admission cannot be refused by a single Judge. I do not see any substance in this contention. Under Rule 2 (i) of Chap. 5 of the Rules of the Court, 1952, vol. I, every motion for the admission of a memorandum of appeal, whether civil or criminal, has to be heard by a Judge sitting alone. There is a distinction between a motion for the admission of an appeal and the hearing of an appeal after admission and issue of notice to the respondent. Certain civil appeals and certain criminal appeals can be disposed of by a Judge sitting alone vide Rule 2 (ii) (vii) etc. but other civil and criminal appeals cannot be disposed of by him. These provisions have reference to those civil and criminal appeals which have been admitted and come up for disposal after the issue of notice. They have no reference to "motions for admission" which are exclusively dealt with under Rule 2 (i ). "motions for admission" of appeals in case in which a sentence of death has been passed are made before a Judge sitting alone though such appeals after being admitted, can be disposed of only by a Bench of two judges. When there is a motion for admission of an appeal before a Judge sitting alone, he has power not only to admit the appeal and order a notice to be issued, but also to refuse the motion and dismiss the appeal summarily. He can dismiss every appeal summarily regardless of whether he would be competent to dispose of it after admission and issue of notice or not. Under Rule 9 of Chap. 11, a Judge sitting alone is required to admit every first appeal other than an execution first appeal and direct a notice to be issued; in other cases he has been given the right to admit or dismiss the appeal as he thinks fit. That he can dismiss an appeal under Order 41, Rule 11, C. P. C. is made clear by Rule 9 (b) (i ). Proviso to Rule 2 of Chap. 18 allows the Bench (which includes a Judge sitting alone) before which a motion is made. for the admission of an appeal to dismiss it summarily under Section 421, Criminal P. C. There is, therefore, no doubt that a Judge sitting alone is competent to dismiss a criminal appeal summarily.

(3.) MR. Shri Rama's next contention was that a Government appeal cannot be dismissed summarily. This contention is equally devoid of merit. Every criminal appeal is liable to be dismissed summarily under Section 421 of the Code which makes absolutely no distinction between appeals filed by Government and appeals filed by convicted persons. It is laid down in that section that "on receiving the petition under Section 419 or Section 420, the appellate Court may dismiss the appeal summarily". It was argued that this provision deals with appeals filed under Section 419 and 420 of the Code and not under Section 417. Sections 419 and 420 lay down the manner in which every appeal by whomsoever and against whatsoever order must be filed. They between themselves exhaust the manners in which a criminal appeal can be filed. Even an appeal filed by Government under Section 417, Cr. P. C. must be filed in the manner prescribed under Section 419. The present appeal has been filed in the manner prescribed in that section. Therefore every appeal is governed by Section 421. Sections 405 to 418 only lay down in what circumstances, by whom, and on what grounds criminal appeals can be filed. They do not at all lay down in what manner the appeals should be filed. As Section 421 refers to the manner in which criminal appeal is filed before the appellate Court, it could only mention section 419 and 420 and could not possibly mention Section 405 to 418. Section 421 lays down the procedure to be followed by the appellate Court before which an appeal is presented. It it be argued that this section does not apply to appeals filed by Government under Section 417, it can also be argued that it does not apply to appeals filed under any of Section 405 to 415-A; that could be quite absurd. The fact is that every criminal appeal must be entertainable under any of ss, 405 to 417 and must be presented in the manner prescribed in Section 419 and 420, and the procedure on its being presented before the appellate Court must be governed by Section 421. There is, therefore, no warrant for contending that an appeal filed by Government under Section 417 cannot be dismissed summarily.