Supreme Court Sets Aside High Court Order Dismissing Criminal Appeal Without Perusing Record Under Section 423 CrPC. Appellate Court's Order Must Indicate Judicial Application of Mind and Consideration of Entire Case Record, Not Merely the Judgment Under Appeal.

Case Note & Summary

The litigation arose from a criminal appeal filed by accused persons convicted under Section 363 of the Indian Penal Code, 1860, for kidnapping a minor girl. The appellants, who were accused Nos. 2 to 5 before the trial court, challenged their conviction and sentence before the Patna High Court. The trial court had convicted them and sentenced each to rigorous imprisonment for five years and a fine of Rs. 500, with further imprisonment in default of payment. Accused No. 1, Sia Devi, was acquitted. The appellants filed Criminal Appeal No. 453 of 1966 in the Patna High Court on September 8, 1966, contending that the findings were not supported by evidence and that the age of the victim was based on conjecture. On September 9, 1966, the High Court admitted the appeal, issued notice, and granted bail pending appeal. The appeal was posted for hearing on May 10, 1968. On that date, neither the appellants nor their counsel appeared, and the High Court passed a one-line order: 'No one appears to press this appeal. On perusal of the judgment under appeal, I find no merit in the case. It is accordingly dismissed.' The appellants filed a restoration application, which was dismissed on July 12, 1968, for lack of sufficient cause. They then sought a certificate under Article 134(1)(c) of the Constitution, which was dismissed on August 2, 1968. The Supreme Court granted special leave to appeal on December 11, 1968. Before the Supreme Court, the appellants contended that the High Court's disposal of the appeal was contrary to Section 423 of the Code of Criminal Procedure, 1898, because once an appeal is admitted, the appellate court cannot dismiss it summarily without perusing the entire record and applying its judicial mind. They also argued that the order was not a judgment as understood in law. The State argued that the order complied with Section 423 and that Section 367 regarding the contents of a judgment did not apply to the High Court, relying on Section 424. The Supreme Court examined Section 423 and held that when a criminal appeal is not summarily dismissed under Section 421 and notice is issued under Section 422, it is obligatory for the appellate court to send for the record if not already before it. After the records are before the court and the appeal is set down for hearing, the appellate court must peruse the record, hear the appellant or his pleader if he appears, and hear the public prosecutor if he appears. If the appellant and counsel are absent, the appellate court cannot dismiss the appeal for default; it may adjourn the matter to enable them to appear or consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing requires testing the reasoning and findings in the judgment under appeal against the record of the case. The court emphasized that the perusal of the record under Section 423 is not an empty formality and that the record does not mean only the judgment, because the judgment would have already been perused at the admission stage under Section 421. In the present case, the Supreme Court found no indication in the High Court's order that it had perused the record as required by Section 423(1). The mere recital of no merit was insufficient to infer that the High Court had applied its judicial mind. The order lacked a clear indication that the appellate court had considered the material on record, which includes not only the judgment and petition of appeal but also other relevant materials. Consequently, the Supreme Court held that the High Court's order was not in conformity with Section 423 and set it aside, thereby restoring the criminal appeal before the High Court for fresh disposal in accordance with law. The Court did not express any opinion on whether Section 367 applies to High Court judgments or the scope of Section 424.

Headnote

Issue of Consideration

Final Decision

The Supreme Court held that the High Court's order dated May 10, 1968 was not in conformity with Section 423 CrPC because it did not show perusal of the record or application of judicial mind. The order was set aside, and the criminal appeal before the High Court stood restored for fresh disposal in accordance with law.

Law Points