EMPEROR Vs. DEVENDRA SHIVAPA LIMBENAVAR

JUDGEMENT

(1.) This is an application in revision which is made to us in the following circumstances.

(2.) The two accused persons were convicted by the Second Class Magistrate of Parasgad of criminal breach of trust under Section 406 of the Indian Penal Code. From that conviction they appealed to the District Magistrate, and that learned Magistrate, though he took a careful note of the arguments addressed to him by the pleaders on both sides, passed his final order in the following words:- "The appeal is dismissed under Section 423 of the Criminal Procedure Code." It seems to us that that order cannot be sustained. Admittedly it was made under Section 423 of the Criminal Procedure Code, that is to say, the appeal was dismissed not summarily, but after notice given under Section 422. That being so, under Section 424 it was incumbent on the learned Magistrate to deliver a judgment which should fulfil the conditions laid down in Section 367; in other words, the judgment must contain the point or points for determination, the decision thereon, and the reasons for that decision. None of these matters is contained in the order under notice, and the result is that by the oversight of the learned District Magistrate the applicant, who by law is entitled to the independent opinion of the appellate Court, has not had the benefit of that opinion expressed as the law requires that it should be expressed. We have, therefore, no option but to allow this application. For, it is clear that Section 537(a) cannot be invoked in such a case as this where we are concerned not with any omission or irrgularity in a judgment, but with the absence of a judgment.

(3.) The District Magistrate s order must be reversed and the appeal must be remanded to him to be heard and decided in accordance with law. Rule made absolute.