CHIRUMAMILLA TIRUPATAYYA Vs. STATE

JUDGEMENT

(1.) Two questions arise for consideration in this revision ease (i) whether advance notice of the application for suspension of sentence under section 426, Cr.P.C., should be given to the Public Prosecutor, and (ii) whether the Court is entitled to give notice to the Public Prosecutor before the appellant is. released on. bail or the sentence is suspended, pending the Criminal appeal.

(2.) The petitioners herein applied for suspension of the sentence of fine of Rs. 100 ; passed against each under section 4 (1) (b) of the Madras Prohibition Act before the Sessions Judge, Guntur, pending a criminal appeal filed before him. The Sessions Judge directed notice to be given to the Public Prosecutor. Instead of ' serving notice, the petitioner's advocate filed an elaborate memo to the effect that no notice was necessary. The Sessions Judge held that as the notice directed by him was not given to the Public Prosecutor, he had no alternative but to reject the application for suspension of the sentence of fine. The petitioners have thereupon, preferred this revision petition to this Court.

(3.) The first question raised by Sri T. V. Sarma, on behalf of the petitioners was that the practice and convention referred to by the Sessions Judge in paragraph 5 of the order as prevailing in Guntur district, i.e., to give advance notice of the application for suspension to the Public Prosecutor, is not warranted by the provisions of the Code of Criminal Procedure and that he was consequently under no obligation to give previous notice. This contention appears to be perfectly correct. There is no provision in the Criminal Procedure Code or in the Criminal Rules of Practice requiring the appellant to give advance notice before the appeal is admitted- The learned Public Prosecutor conceded that there is no such practice prevailing in the Andhra High Court. Mr. Justice Govinda Menon with his vast experience of criminal law and procedure observed in Balasundara Pavalar v. State, (1950) 2 M.L.J. 616 : I.L.R. (1951) Mad. 799 : 1950 M.W.N. 865 at 869. as follows : " As a matter of practice it is very seldom that in an application for bail pending the hearing of an appeal by a convicted person that notice is given to the Public Prosecutor and he is heard ". Section 426 (1), Criminal Procedure Code, is in the following terms :