SUBEDAR MAJOR JAGGAN NATH Vs. STATE

JUDGEMENT

(1.) THIS revision petition is directed against an order dated October 6, 1970, of the learned Addl. Sessions Judge, Jammu, dismissing the appeal filed by the petitioner against his conviction and sentence under Section 500 of the Ranbir Penal Code recorded by the Sub Registrar, Judicial Magistrate, Jammu, vide his order dated June 6, 1970, on the ground that it was not entertainable as the State had not been impleaded as a respondent within the prescribed period of limitation.

(2.) I have heard the learned counsel for the petitioner as also the learned Addl. Advocate General and have also studied the law bearing on the matter.

(3.) IT appears to me that the impugned order dismissing the appeal is wholly erroneous and cannot be allowed to stand. Section 419 of the Code of Criminal procedure merely states that an appeal shall be made in the form of a petition and shall be presented by the appellant or his pleader. Section 422 of the Code of Criminal Procedure provides that if the appellate court does not dismiss summarily the appeal filed against conviction, it shall cause a notice to be given to the appellant or his pleader and to such officer as the Government may appoint in this behalf, of the time at which such appeal will be heard and shall on the application of such officer, furnish him with a copy of the grounds of appeal. It is, therefore, evident that even if the State is not made a party to the appeal a duty is cast on the court not only to give a notice to the appellant or his pleader but also to the officer appointed for the purpose by the State Government. In the State of Jammu and Kashmir it is the Public Prosecutor who is enjoined to contest an appeal against conviction and the notice has ordinarily to go to him. In dismissing the appeal without issuing notice to the Public Prosecutor, the learned Addl. Sessions Judge has, in my opinion acted in a manner which is not at all warranted by law. The ruling relied upon by him viz. A. I. R. 1966 A. P. 311 has hardly any bearing on the matter in question. Furthermore, in any appeal arising out of a private complaint under Section 500 of the Ranbir Penal Code, the State is not interested in the matter and strictly speaking it is the complainant on whose complaint the appellant is convicted that should be given a notice. The mere fact that the State is not made a party to the appeal does not affect its validity nor does it deprive the court of its jurisdiction to hear and dispose of the matter. It also does not relieve the court of its duty to issue a notice to the officer who is appointed by the Government to contest such like appeals. The instructions, contained in para 93 of the LAW DEPARTMENT MANUAL also lend support to the view taken by me, that in a prosecution for defamation the State is not the real prosecutor. The order of the learned Additional Sessions Judge, bring, therefore, manifestly illegal has to be quashed.