HATEM ALI DAFADAR Vs. EMPEROR

JUDGEMENT

(1.) In this case the petitioner presented his petition of appeal to the learned Sessions Judge. It appears that on 2 October, 1931. the pleader for the petitioner was heard and the learned Judge called for the record. There was also an order dated 6 October 1931. which is as follows: Seen record. Summarily dismissed." Under the provisions of Section 421 (2), Criminal P.C., the Court is prohibited from dismissing an appeal presented under Section 419 unless the appellant or his pleader had a reasonable opportunity of being heard in support of the same. If this matter was of first impression, I should be inclined to hold that in this case the appellant's pleader had a reasonable opportunity of being heard on 2 October, and it was a matter for the learned Sessions Judge's discretion whether he should hear him again on 6 October. But in two cases which are indistinguishable from the present one it has been held that if the record is sent for, the learned Judge should hear the appellant or his pleader before summarily dismissing the appeal. Those two cases are Lalit Kumar Sen V/s. Emperor A.I.R. 1926 Cal. 174 and Surendra Nath V/s. Emperor A.I.R. 1926 Cal. 161. Those cases were decided by the same Bench of Judges and though as I say I am not prepared to say that I should have decided them in the same way I do not feel justified in differing from those decisions which apparently have not been dissented from although they were delivered so long back as 1925.

(2.) In the circumstances I make this rule absolute and set aside the order of dismissal of the appeal and I direct the learned Sessions Judge to give the appellant an opportunity of being heard in support of his appeal. M.C. Ghose, J.

(3.) I agree.