BINDHYACHAL AHIR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is a represented appeal by Binduyacnal Ahir. The appellant and Shrikishan Dusadh were convicted by the Sessions Judge of Purnea on 31-1-56 of an offence under Section 402 of the Indian Penal Code and sentenced to 7 years' rigorous imprisonment each. They were also convicted under Section 399 of the Indian Penai Code, but no separate sentence was imposed upon them under that section. The convicted persons riled an appeal trom jail which was received in this Court on 20-3-56. On 23-3-56 Bindhyachal Ahir alone filed the present appeal through counsel. On 3-4-56 the jail appeal was summarily dismissed by the Criminal Bench then presided over by Sahal and Prasad JJ. under the provisions of Section 421 (1) of the Code of Criminal Procedure. When the represented appeal came up for admission before a single Judge of this Court on 4-4-56 it was brought to his notice that a jail appeal preferred by the appellant and the other convicted person had already been dismissed on the prcviou's day. The learned Judge thereupon ordered the appeal to be placed before the Bench which had dismissed the jail appeal. When that Bench took up the matter it was contended on behalf of the appellant that the dismissal of the jail appeal was not a bar to the admission of the regular appeal. Observing that the matter required investigation their Lordships directed notice to be issued to the Advocate General. The question as to whether the dismissal of the jail appeal was or was not a bar to the admission of the regular appeal was heard by the Bench on 25-7-56. On a suggestion from the Additional Standing Counsel that the question might be considered and finally decided at the time of the hearing of the appeal their Lordships Ordered as follows : ''We think, in the circumstances of this case, that this would be the best course to adopt. We, therefore, admit the appeal subject to the condition that the question of its maintainability will be considered at the time of its hearing. Issue notice."

(2.) The learned Additional Standing Counsel has raised a preliminary objection to the hearing of this appeal and we have heard both sides on the question of whether in view of the jail appeal having been summarily dismissed under Section 421 (1), this Court has jurisdiction to hear the represented appeal,

(3.) The learned Additional Standing Counsel contends that so far as this Court is con- cerned the matter is concluded by the case of Pern Manion v. Emperor, ILR 14 Pat 392 : (AIR 1935 Pat 420) (A), where a Bench of this Court laid down when an accused person presented a petition of appeal from tne conviction and sentence passed on him through the officer in charge of the jail in accordance with the provision of Section 420 of the Code ot Criminal Procedure, and the appeal was dismissed by the High Court, but later another memorandum of appeal was presented to the Court through an advocate and was admitted by the Bench which had dismissed the jail appeal, the Court bad no power to entertain an appeal from the conviction and sentence passed on the appellant after the dismissal of the appeal which he had preferred from jail. Their Lordships further held that neither the Bench which nad admitted the appeal nor the Bench beiore which it came on for final hearing had power to review or revise the order of dismissal. In laying down these propositions their Lordships followed the decisions in Emperor v. Khiali, ILR 44 All 759 : (AIR 1922 All 480) (B); Kunhahamad Haji v. Emperor, ILR 46 Mad 382 : (AIR 1923 Mad 426) (C); Lachmi Singh v. Bhusi Singh, 43 Ind Cas 817 : (AIR 1917 Pat 110) (D); Gajo Chaudhry v. Debi Chaudhury, 72 Ind Cas 945 : (AIR 1923 Pat 532) (E); Nand Kishore Lal v. Emperor, 51 Ind Cas 271 : (AIR 1919 Pat 514) (F); Kuldip Das v. Emperor, ILR 11 Pat 697 : (AIR 1933 Pat 38) (G).