SUNIL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants filed this appeal on the 1st of April, 1999 impugning the judgment and order of the 2nd Addl. Sessions Judge, Gopalganj in Sessions Trial No. 168 of 1992/94 of 1992 convicting the appellants of the offence under Sections 302/34, IPC and sentencing each one of them to undergo rigorous imprisonment for life. After the appeal was filed and the defects pointed out by the office removed, the appeal was not placed before the Court for admission and for consideration for grant of bail. Counsel for the appellants objected before this Court contending that the Registry cannot withhold the memo of appeal awaiting the receipt of the lower Court record. This was presumably because there was an order of a Division Bench of this Court reported in 1999 (1) PLJR 936 : 1999 (1) PCCR 413 directing that only after receipt of the record, the appeals be placed for admission and/or for passing orders on bail. The objection of counsel for the appellants was heard by a Division Bench of this Court which by order, dated 21.6.1999 directed that the matter be placed for consideration by a larger Bench. Hon ble the Chief Justice thereafter, has referred the matter to this Bench for consideration of the objection of the appellants regarding non - listing of the appeals for admission and for non -consideration of the bail petition without receipt of the lower Court record.

(2.) THE learned Advocate -General submitted that the aforesaid order of a Division Bench of this Court does not lay down any principle of law and is, therefore, not a binding precedent. It is in the nature of an administrative direction though made on the judicial side. In any event, it appears that the relevant provisions of the Code of Criminal Procedure and the Patna High Court Rules were not brought to the notice of the Bench passing the order, and therefore, an order has been passed which is in the teeth of the provisions of the Code of Criminal Procedure and must therefore, be read as per incurium. He has submitted that the direction made in the aforesaid order is untenable having regard to the provisions of the Code of Criminal Procedure. There is no warrant for the proposition that a criminal appeal duly presented by an appellant shall not be listed before a Court for admission and for orders on bail petition without receipt of the lower Court record. The order of this Court aforesaid is a short one and the same is reproduced below in extenso for the sake of convenience. "1. Usually, it is seen that in Criminal appeal DB or Single Bench cases, only after the order of the Court, records of the lower Court are sent for, which practice is not good. 2. In criminal appeals, DB or Single Bench, no sooner the appeal is presented, the Registry is directed to send for lower Court records and after receipt of the records, the appeals be placed for admission/and on for passing orders on bail.

(3.) IN the instant case, although the appeal was presented on 11.1.1999, but, we are informed that as yet no memo is issued to the Court concerned, requisitioning the lower Court records.