Emperor vs Nurudin Shaikh Adam on 4 March, 1927

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Bombay High Court
Emperor vs Nurudin Shaikh Adam on 4 March, 1927
Equivalent citations: (1927) 29 BOMLR 701, 103 Ind Cas 109
Author: Fawcett
Bench: Fawcett, Patkar


Fawcett, J.

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. 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.

4. It must be noted that Section 278 of the Code of 1872 applied not only to a petition presented by an appellant in person, or by his counsel or authorized agent, but also to a petition received from an appellant in jail, and it directed the appellate Court to fix a reasonable time within which the appellant or his counsel or authorized agent might appear, and to hear the appellant, his counsel or authorized agent, if he appeared, before rejecting the appeal. Accordingly, the practice then was to send a notice to the appellant in jail, even although he would not be able to be present in person So far as the ruling decides that the action of the District Magistrate was not illegal, because Section 278 only applied to cases, where a man had presented an appeal within the proper period of limitation, I do not see any reason to question it. But, there is, in my opinion, some ground for thinking that the High Court should have considered the further question that arose, whether, although Section 278 of the then Code did not apply, the petitioner had not a right to be heard in the matter of determining whether the delay should be excused under Clause (b) of Section 5 of the then Limitation Act. That particular point is, I think, rather glossed over.

5. In the present case I think that Section 421 does contemplate an appeal that can properly be put upon the file of the appellate Court, and that consequently the proviso of Section 421 does not apply to make the District Magistrate’s order illegal. But, on the other hand, I do not think that this necessarily disposes of the case. Under Section 5 of the present Limitation Act the Court had to consider whether the appellant had sufficient cause for not preferring the appeal within the proper period, and if the Court is satisfied that he had such sufficient cause, it can extend the period, and admit the appeal. Ordinarily, our judicial system requires that, if an appellant is represented by a pleader, he should be given an opportunity of being heard in the matter. Thus, it has been held that, in giving judicial powers to affect prejudicially the rights of a person or property, a statute is understood as silently implying, when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself. cf. Maxwell on the Interpretation of Statutes, 3rd Edition, p. 511. I do not go so far as to say that in every case where the Court dismisses an appeal as time-barred without hearing the pleader, there would be an illegality. There might be, for instance, a case where the petition itself showed that there was no possible ground for any extension of the prescribed period, and therefore, there would be no use in giving an opportunity to the pleader to be heard. But, on the other hand, in the present case there, is a reasonable basis for the allegation that there is sufficient cause for excusing the delay, and the appellate Court should have, under the ordinary system of Court work, in my opinion, given an opportunity to the appellant’s pleader to be heard upon the point. As a somewhat similar case-although it relates not to a criminal appeal, but to a civil appeal-I may refer to Raghunath Gopal v. Nilu Nathaji (1885) I.L.R. 9 Bom. 452. In that case, the plaintiff’s claim to redeem certain lands had been rejected by a Subordinate Judge. The plaintiff, who was an agriculturist, presented an application for review to the special Judge appointed under the Dekkhan Agriculturists’ Relief Act. His application was rejected by that Judge, who was of opinion that the plaintiff’s remedy lay in an appeal to the District Judge. The plaintiff was not informed of the result of his application to the Special Judge until the following May, at which time the Court of the District Judge was closed for vacation. On June 3, 1883, he presented an appeal on the opening of the District Court. The District Judge dismissed the appeal as barred by limitation. The High Court in their judgment say (p. 453):-

The appellant justified the delay in presenting his appeal, on the ground that he was prosecuting an application for revision before the Special Judge under the Dekkhan Agriculturists’ Relief Act, which was rejected for defect of jurisdiction. This might, under proper circumstances, as to the existence of which in the present case we gave no opinion, be regarded as constituting a sufficient cause for delay.

6. Further on, they say (p. 453):-

There were, therefore, circumstances in the appellant’s case deserving of careful consideration; and as the District Judge has rested satisfied with declaring the appeal to be barred without giving any reasons, we think we ought to discharge his order, and direct him to make a fresh order with due regard to the above remarks.

7. So here, I think, in the circumstances, that the District Magistrate’s order, though not necessarily illegal, was clearly an improper one, Therefore, I would set aside his order rejecting the appeal as time-barred and direct him to take it on his file again and decide the question whether the delay should be excused, after giving the appellant’s pleader a reasonable opportunity of being heard upon it. He can, of course, also hear the Public Prosecutor, if he thinks this desirable.

8. I would add that the appellant in this case has died after the appeal was presented, but as the sentence is only one of fine, the appeal does not abate under Section 431 of the Criminal Procedure Code, The deceased’s son has in fact appeared before us in support of the reference.

Patkar, J.

9. I agree.

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