SURENDRA MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner stood his trial in the court of Mr. A.B. Das, Additional Chief Judicial Magistrate, Pun and was convicted under sections 279 and 337 of the Indian Penal Code (for short, the TCodeT) and sentenced under section 337 of the Code to pay a fine of Rs. 500/- (the maximum fine prescribed under the law) and in default of payment thereof, to suffer simple imprisonment for a month, without any separate sentence having been passed under section 279 of the Code. The trial court held it established, as alleged by the prosecution, that on October 1, 1978, while the petitioner, a Government servant, had been driving the jeep bearing registration No. O.R.G. 2130 of the Public Health Department on the Pipli-Puri Road, an accident occurred owing to his rash and negligent driving by the sudden application of brakes.

(2.) The petitioner appealed against the order of conviction and sentence to the Court of Session. After the appeal suffered some adjournments for hearning on the question of admission, the following order was passed by Mr. A.P. Guru, the then Sessions Judge, Pun, on April 4, 1984: None appears for the appellant for moving for admission. Perused the judgment of the lower Court. The appeal does not merit admission. Hence the appeal is rejected. The stay order passed on 6.3.84 is vacated. Intimate the lower court accordingly By the time of dismissal of the- appeal in limine, the record from the trial court had not been called for. The learned Sessions Judge could not, therefore, be in a position to find out as to whether the appeal did merit consideration only from the copy of the impugned judgment and order which he had with him. The learned Judge arbitrarily and without any justification supported by reasons, rejected the appeal.

(3.) In Shivaji Narayan Bachhav v. State of Maharashtra,1 the Supreme Court has observed and held. The appeal of the accused to the High Court was dismissed summarily with the one word dismissed, placing this Court in a most embarrassing position dealing with the special leave petition under Art. 136 of the Constitution. Such summary rejection of appeals by the High Court has been disapproved by this Court more than thirty years ago in Mushtaq Hussain v. State of Bombay2, and thereafter, over the years in a series of cases from the same High Court: Ramayya v. State of Bombay3, Vishwa Nath 5Shankar Beldar v. State of Maharashtra , Siddanna Appa Roo v. State of Maharashtra , Naraan Nathu Naik v. State of Maharashtra6, Govinda Kadtuji Kadam v. State of Maharashtra, Shaik Mohamed Ali v. State of Maharashtra , K K. Jam v. State of Maharashtra , Jeewan Prakash v. State of Maharashtra Mushtaq Ahmed v. State of Gujarat , Krishna Vithu Suroshe v. State of Maharashtra i4 Sampat Tatyada Shinde v. State of Maharashtra , Dagadu v. State of Maharashtra.It was further observed: Except in certain cases when an accused person has pleaded guilty and in petty cases, every person convicted of an offence has a right of appeal under the Criminal Procedure Code. An appeal may be both against conviction and sentence and on facts and law. A convicted person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclusion. An appellate Court has the undoubted power to dismiss an appeal in limine. Section 384 of the Criminal Procedure Code provides for it. But, it is a power which must be exercised sparingly and with great circumspection... criminal appeal has been fixed for hearing and an Advocate refuses to argue for the appellant, the court must, instead of summarily dismissing the appeal, appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits. A Court of Session must keep these principles in mind while acting as the first court of appeal against an order of conviction.