EMPEROR Vs. NURUDIN SHAIKH ADAM

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Surat, in which he recommends that the order of the District Magistrate, summarily dismissing an appeal to his Court from a conviction and sentence passed by the Second Class Magistrate, Surat, as barred by limitation, be set aside.

(2.) The main facts are that the accused was convicted on June 29, 1926, and sentenced to pay a fine of Rs. 25. Under some misapprehension, a revisional application was made to the Sessions Court on July 28, 1926. The Sessions Judge on September 29, 1926, held that the sentence was appealable, that the proper Court to hear the appeal was the District Magistrate, and that there being a right of appeal, the application in revision could not be entertained. On the same day that the revisional application was thus heard and decided, the accused's pleader presented an appeal to the District Magistrate at Surat praying that the delay caused in prosecuting the revisional application by mistake should be excused under Section 5 of the Indian Limitation Act; but the District Magistrate on October 21, 1926, without hearing the appellant or his pleader, sent a reply to the pleader, informing him that the appeal could not be admitted as it was time-barred. The Sessions Judge is of the opinion, that, in view of the imperative provisions of the proviso to Section 421, the District Magistrate's action in rejecting the appeal without hearing the pleader in support of the petition is illegal, and as he considers that a question of principle and of general importance is involved, he has thought it necessary to make this reference.

(3.) In the course of his letter the Sessions Judge has referred to the case of Reg. V/s. Gulab Karim (1875) Unrep. Cr.C. 90. In that case, it was held that Section 278 of the Code of 1872, which corresponds in some respects with Section 421 of the present Code, applied only to those cases, where a person having a right of appeal had presented an appeal; so that, where a person had allowed the time prescribed by law for presentation of an appeal to expire, it was for the Sessions Judge under Clause (b) of Section 5 of the Indian Limitation Act, (i.e. the then Limitation Act IX of 1871), to determine whether grace was to be allowed before he could determine, whether he should proceed under Section 278. That ruling is against the view that Section 421 would apply to the District Magistrate's act. We have referred to the original record of that Reference No. 3 of 1875. From this, it appears that the case was one of a jail petition and not of an appeal presented by a pleader. The Sessions Judge of Surat, Mr. Herbert Birdwood, rejected the appeal petition as beyond time. Subsequently he was of opinion that that order should be set aside, as it was made in the absence of the appellant, to whom no notice had been given under Section 278 of Act X of 1872. He further says:- Not until after I had signed the order, did it occur to me that the appellant was entitled to be heard, with reference to the reason, given by him for the delay in presenting the appeal. My order being a final one, I cannot myself recall it.