VIJAI PAL Vs. STATE

JUDGEMENT

(1.) Appeal No. 1394 of 1955 has been filed by Vijaipal and Babu Lal while appeal No. 1529 of 1955 has been filed by Chandan and Prabhu. all four of whom have been convicted under Sections 399 and 402, I. P. C., by the learned Assistant Sessions Judge, Aligarh. Chandan has also been convicted under Section 19 (f) of the Arms Act. Whereas the sentences under Sections 399 and 402, I. P. C., of all the appellants have been ordered to run concurrently, the sentence under Section 19 (f) of the Arms Act imposed on Chandan has been ordered to run consecutively. Along with these four persons Chiranji son of Megh Singh, Chiranfi son of Maharam, Khushali, Mahabir, Balbir and Ram Gopal were also convicted by the learned Assistant Sessions Judge. These persons, as also the four appellants had filed one jail appeal against their conviction and sentence. This jail appeal was admitted by my brother V. D. Bhargava, J., on 21-11-1955. After the jail appeal had been filed and admitted the present two appeals Nos. 1394 and 1529 of 1955 were filed in this Court. By a mistake of the office no endorsement was made on the memorandum of these two appeals to the effect that a jail appeal had also been filed, with the result that these represented appeals also were admitted. On 19-7-1957, the jail appeal was listed before me. The two represented appeals mentioned above were not listed that day with the result that I disposed of the jail appeal with the help of the State counsel but without having the assistance of the learned Counsel appearing in the represented appeals, because their names were not printed in the cause list. I dismissed the jail appeal with this modification that I ordered that that the sentence passed under the Arms Act would also run concurrently and not consecutively with the sentences awarded under Sections 399 and 402, I. P. C. After some time the office realised its mistake and listed the two represented appeals before me and now I have had the benefit of hearing Mr. Kedar Nath Sinha in appeal No. 1529 of 1955 and Mr. J. N. Agarwal in appeal No. 1394 of 1955.

(2.) The first question that arises for consideration in this case is whether it is possible in view of the provisions of Sections 369 and 430 of the Code of Criminal Procedure to rehear these two represented appeals. In my opinion it is possible to do so. I have got ample powers under the provisions of Section 561-A, Cr. P. C. to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The said Section runs as follows :

(3.) I am of the opinion that Section 369, Cr. P. C., would be no bar to the exercise of my powers under Section 561-A nor do I think would the provisions of Section 430 be a bar. Section 369, Cr. P.. C., runs as follows :