MANMATHA NATH SIRKAR Vs. UNION BOARD OF DHATRIGRAM

JUDGEMENT

(1.) In this case a Rule was issued, to show cause why the conviction of and sentence passed on this petitioner should not be set aside on the ground that the learned Judge's order dismissing the appeal summarily was made without hearing the defence Pleader. The petitioner was convicted under Section 409 of the Indian Penal Code and sentenced to rigorous imprisonment for 6 months and a fine of Rs. 1,000 in default, rigorous imprisonment for 4 months. Out of the fine RS. 640-0-5 pies were to be paid to the Dhatrigram Union Board. He appealed to the Sessions Judge and his appeal was summarily dismissed.

(2.) The ground urged by the learned Advocate for the petitioner is untenable. Section 41 provides that on receiving the petition under Section 419 or Section 420 of the Criminal Procedure Code, the Appellate Court shall peruse the same, and if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily, provided that no appeal under Section 419 shall be dismissed unless the appellant or his Pleader has had a reasonable opportunity of being heard in support of the same. Sub-section (2) provides that before dismissing the appeal under this section, the Court may call for the record, but shall not be bound to do so.

(3.) Now, the argument of the learned Advocate is, that although the Pleader had a full opportunity of addressing the Court when he presented the petition, he was not allowed or asked to address the Court after the Sessions Judge had sent for the record and perused it. That is to say, his argument amounts to this, that if the Sessions Judge decides to send for the record, then, the appellant's Pleader in such a case is to have two opportunities of addressing the Court, one when he presents the petition in the first place, and another after the record has been sent for and perused by the Judge. That is not what the section says. There is nothing contained in the section about the right of the appellant or his Pleader to have two reasonable opportunities of being heard by the Court. Provision is made only for one reasonable opportunity.