PETITIONER: PRATAP SINGH Vs. RESPONDENT: THE STATE OF VINDHYA PRADESH (NOW MADHYA PRADESH) DATE OF JUDGMENT: 18/11/1960 BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA CITATION: 1961 AIR 586 1961 SCR (2) 509 ACT: Criminal Procedure-Right of Appeal-Procedure when appellant in jail-If discriminatory-Finality of order on appeal-Code of Criminal Procedure 1898 (V of 1898) ss. 420, 421, 430- Constitution of India Art. 14. HEADNOTE: The appellant filed an appeal while he was in jail which was summarily dismissed on merits. Thereafter lie filed a Memo- randum of Appeal through a pleader which was rejected on the ground that it was not maintainable owing to his appeal from jail under S. 420 of the Code of Criminal Procedure having been dismissed earlier. His review petition before the judicial Commissioner was also dismissed but his prayer for certificate under Art. 132(1) was granted. The question was whether S. 421 of the Code of Criminal Procedure which enables a court to dismiss an appeal filed by a convicted person, while he was in jail, without hearing him offended against Art. 14 of the Constitution. Held, that the Code of Criminal Procedure in giving the right of appeal in Ch. XXXI based it on a classification which was rational and reasonably connected with the object the Legislature had in view in enacting that chapter. The position of a convicted person in jail, and therefore unable to present an appeal either in person or through a pleader, was entirely different and distinct from that of a convicted person who was able to do so. The Proviso to s. 421 of the Code of Criminal Procedure in no way offends against the provisions of Art. 14 of the Constitution. Held, also, that a second appeal from the same judgment of conviction presented through a pleader was not maintainable because the previous order dismissing the first appeal under S. 420 presented from jail was lawful and final under S. 430 of the Code. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION. Criminal Appeal No. 106 of
1956.
Appeal from the Judgment and Order dated the 7th April,
1956, of the former Judicial Commissioner’s
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Court, Vindhya Pradesh, Rewa in Misc. Crl. Application No.
70 of 1956.
A. D. Mathur for the Appellant.
B. K. B. Naidu and I. N. Shroff for the Respondent.
1960. November 18. The Judgment of the Court was delivered
by
IMAM, J.-The Judicial Commissioner of Vindhya Pradesh
granted a certificate under Art. 132(1) of the Constitution
of India as in his opinion the case involved a substantial
question of law as to the interpretation of the
Constitution. Hence the present appeal.
The appellant was convicted under s. 307, Indian Penal Code
and s. 19(f) of the Indian Arms Act by the Sessions Judge of
Chatarpur. He was sentenced to 10 years’ rigorous
imprisonment under s. 307, Indian Penal Code and to 3 years’
rigorous imprisonment under s. 19(f) of the Indian Arms Act.
He filed an appeal while he was in jail which was summarily
dismissed on merits on October 28, 1955. Thereafter, on
October 31, 1955, he filed a Memorandum of Appeal through a
pleader which was rejected on November 1, 1955, on the
ground that it was not maintainable owing to his appeal from
jail under s. 420 of the Code of Criminal Procedure having
been dismissed on October 28, 1955.
Thereafter, he filed a petition before the Judicial
Commissioner that the order dated October 28, 1955,
dismissing his appeal from jail should be reviewed and his
appeal should be reheard on merits. This petition was also
dismissed by the Judicial Commissioner. The appellant had
prayed for a certificate under Arts. 132 and 134(c) of the
Constitution. The Judicial Commissioner was of the opinion
that no ground had been established for grant of a
certificate under Art. 134(c) but a certificate should issue
under Art. 132(1).
The only question for determination in this appeal is
whether the case involves any substantial question of law as
to the interpretation of the Constitution. It
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had been urged before the Judicial Commissioner that s. 421
of the Code of Criminal Procedure which enabled a court to
dismiss an appeal filed by a convicted person, while he was
in jail, without hearing him offended against Art. 14 of the
Constitution as it discriminated between him and a convicted
person who presented his appeal either in person or through
a pleader.
Before we consider whether s. 421 of the Code offends
against the provisions of Art. 14 of the Constitution it is
desirable to set out shortly the scheme of appeals under
Chapter XXXI of the Code of Criminal Procedure before its
amendment which came into force in 1956. Section 404
expressly states that no appeal shall lie from any judgment
or order of a criminal court except as provided for by the
Code or by any other law for the time being in force. This
provision is in accordance with the general principle that
no appeal lies as a matter of right unless the right of
appeal is conferred by law. There are various provisions in
Chapter XXXI providing for an appeal from various orders and
sentences passed by the Criminal courts. Section 410
enables any person convicted at a trial held by a Sessions
Judge or an Additional Sessions Judge to appeal to the High
Court. The Court of Judicial Commissioner, Vindhya Pradesh,
was a High Court for the purposes of the Code. The appeal
of the appellant from jail against his conviction and
sentence by the Sessions Judge therefore lay to the Court of
the Judicial Commissioner. Under s. 418 an appeal may lie
on a matter of fact as well as a matter of law, except where
the trial was by jury, in which case, the appeal would lie
only on a matter of law, except in a case where a person had
been sentenced to death, his appeal would lie on a matter of
fact as well as a matter of law although he was tried by a
jury. The section also enables any other person convicted
at the same trial with a person so sentenced to appeal on a
matter of fact as well as a matter of law. Section 419
enjoins that every appeal shall be made in the form of a
petition in writing presented by the appellant or his
pleader and every such
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petition shall, unless the court to which it is presented
otherwise directs, be accompanied by a copy of the judgment
or order appealed against and in cases tried by jury a copy
of the heads of the charge recorded under S. 367. Section
420 enables a person who is in jail to present his petition
of appeal and the copies accompanying the same to the
Officer-In-charge of the jail who shall thereupon forward
such petition or copy to the proper Appellate Court. Under
s. 421 on receiving the petition and copy under s. 419 or s.
420 the Appellate Court shall peruse the same and if it
considers that there are no sufficient grounds for
interfering, it may dismiss the appeal summarily. There is
a proviso to this section which states that no appeal
presented under s. 419 shall be dismissed unless the
appellant or his pleader has had a reasonable opportunity of
being heard in support of the same. The only other section
for the purpose of this appeal, to which reference need be
made, is s. 430 which states that judgments and orders
passed by an Appellate Court upon appeal shall be final,
except in the cases provided for in s. 417 and Chapter
XXXII.
It will be seen from these provisions of the Code that a
convicted person, in cases where an appeal is provided for
by the Code, may file a petition of appeal in writing
presented by him or his pleader and that if he is in jail he
may file his petition of appeal through the jail authorities
who are obliged to forward the petition to the Appellate
Court concerned. Whether an appeal is filed under s. 419 or
under s. 420 of the Code, the Appellate Court has been
expressly authorized, after perusing the petition of appeal
and copies of the judgment or charge to the jury, if it con-
siders that there is no sufficient ground for interference,
to dismiss the appeal summarily. In the present case, the
appellant was in jail and he presented his petition of
appeal to the Court of the Judicial Commissioner under s.
420 through the jail authorities. It was summarily
dismissed on merits on October 28, 1955. If that order was
lawfully made the decision of the Appellate Court was final
under s. 430 of the Code. Consequently, the appeal
presented by
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the appellant through his pleader on October 31, 1955, was
patently not maintainable.
We come now to the question whether s. 421 offends against
the provisions of Art. 14 of the Constitution which states
that the State shall not deny to 1 any person equality
before the law or the equal protection of the laws within
the territory of India. This Court has decided in many
cases what are the matters to be considered in order to
determine whether a particular piece of legislation is
discriminatory and consequently in contravention of the
provisions of Art. 14. It is unnecessary to refer to them.
The object of Chapter XXXI of the Code of Criminal Procedure
was to make provisions for appeals against conviction in
certain cases. Where no appeal is provided by this Chapter
no further question arises because no one can claim that he
has a right to appeal from any decision of a criminal court.
Every person convicted at a trial held by a Sessions Judge
or an Additional Sessions Judge has been given the right to
appeal to the High Court by virtue of the provisions of s.
410 of the Code. The right to appeal having been so given
the Code provided the manner in which such appeal should be
presented which is to be found in ss. 419 and 420 of the
Code. These two sections contemplate various possibilities
(1) that a convicted person who is not in jail presents his
petition of appeal in person; (2) that a convicted person
though unable to present his petition of appeal personally
owing to various reasons, including his being in jail, can
present it through his pleader and (3) where the convicted
person is in jail and thus unable to present his petition in
person and is unable to engage a pleader to present his,
petition of appeal, can present it through the jail
authorities. Where the convicted person presents his appeal
in person or through a pleader under s. 421 his appeal shall
not be dismissed summarily unless he or his pleader is given
a reasonable opportunity of being heard in support of his
petition. No such consideration arises in the case of a
convicted person who is unable to present his petition in
person or through a pleader. There is a rational basis for
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making the classification mentioned above which has a
reasonable connection with the object of the legislation
providing for appeals under Chapter XXXI. Under s. 410
there is no discrimination as any person convicted at a
trial held by a Sessions Judge or an Additional Sessions
Judge may appeal to the High Court. Where the convicted
person is able to present his petition of appeal in person
his position is entirely different from a person who is
unable to do so because he is in jail. Similarly, a
convicted person whether in jail or not who can present his
petition through a pleader is in a different position from a
convicted person who is in jail and is unable to present his
petition through a pleader. The Code intended in the case
of a convicted person who presents his petition of appeal
while in jail that his petition and the judgment of the
court which convicted him must be considered by the
Appellate Court before it is summarily dismissed, otherwise
the right of appeal conferred on such a person under s. 410
would be meaningless. In the case of such a person no
question could arise of his being heard in person because he
has not presented the appeal in person nor could there be
any question of his pleader being heard because no pleader
had been engaged by him to present the appeal. Different
considerations arise in the case of a convicted person who
presents his petition of appeal in person or through a
pleader in which case he or his pleader must be heard before
the appeal is summarily dismissed. There is, therefore, a
rational basis for making the classification into three
categories which has a reasonable connection with the object
of the Code. It could not therefore be said that the
proviso to s’ 421 offends against the provisions of Art. 14
of the Constitution.
It was, however, contended that although an appeal filed
under s. 420 may have been dismissed summarily a subsequent
appeal filed through a pleader ought to have been heard and
the Judicial Commissioner erred in holding that the appeal
did not lie. The appeal could not have been summarily
rejected without the pleader having been
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heard. From that point of view the provisions of s. 421 had
not been complied with. It is sufficient to say that if the
order dated October 28, 1955, dismissing the appellant’s
appeal under s. 420 was lawful, a second appeal from the
same judgment of conviction presented through a pleader was
not maintainable because the previous order of the High
Court dismissing the appeal was final under s. 430 of the
Code of Criminal Procedure. Certain cases were relied upon
to which reference has been made by the Judicial
Commissioner. Those cases can be distinguished from the
present case. In none of them was it decided that where an
order dismissing the appeal is lawful a subsequent appeal
filed through a pleader was maintainable. In our opinion,
there is no substance in this point, once it is held that
the order dated October 28, 1955, was a lawful order which,
we think, it was, as in our opinion the proviso to s. 421 in
no way offends against the provisions of Art. 14 of the
Constitution. The appeal is accordingly dismissed.
Appeal dismissed.
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