P L D 1958 Dacca 572 (PLP)

3. The learned Advocate for the petitioners has drawn our attention to the judgment of the Court of Appeal below. After reciting that there were two appeals before him, the learned Additional Sessions Judge sums up the prosecution, case, then says that the accused persons pleaded not guilty to the said case and then mentions how many prosecution witnesses were examined in this case and what the Magistrate below decided ; then sets out only one point f or consideration, namely whether the order of the learned Magistrate should stand. We do not know how this could be the only point for decision in this case. We imagine that points for determination in this case should have has some relevance to the issues involved in the case and were not merely whether the order of the Magistrate should stand or not. The latter was more appropriately the result that would follow the determination of the points arising in the case.

4. Thereafter the learned Additional Sessions Judge deals with the preliminary point raised before him as regards the validity of the separate sentences imposed under sections 457 and 380, F. P. C.; and in conclusion, in one sentence, immediately after disposing of the preliminary point, observed to the following effect :‑ "Regarding the occurrence I have carefully considered the evidence on record and I find that a clear case has been made out against both the accused. It appears that the accused Sona Mia made a confession though he subsequently retracted but it has been proved beyond reasonable doubt by corroborative evidence that he was one of the persons who committed the offence under section 457, P. P. C., by house‑breaking in order to commit theft in the jute godown in which P. Ws. 5 and 6 were the darwans. Both the appeals are allowed in part and the conviction and sentence passed by the learned Magistrate are modified". This is all that has been said by a final Court of facts with regard to the cases of the respective petitioners before us. This at best was merely the conclusion of the Court but this conclusion does not appear to be supported by any reasoning at all or to indicate that the Court applied its independent mind to any of the facts or to the relevant evidence in this case. It is rather` surprising that the learned Additional Sessions Judge who should by this time have had considerable experience of these matters should be so obvious of the provisions of section 367 of the Code of Criminal Procedure and should furthermore not know that by reason of the provisions of S. 424, Cr. P. C., the provisions of the said section 367 are also applicable to judgments passed in appeals by Courts other than a High Court. We consider such perfunctory treatment of the appeals that were before the learned Additional Sessions Judge as most unsatisfactory and it is clear that on this ground alone his judgment and order must be set aside and the appeals must be re‑heard in accordance with law.

5. The learned Advocate for the petitioners has, however, urged that we should not merely set aside the judgment and order of the learned Additional Sessions Judge but also should go into the merits of the case and decide whether the conviction has been proper or not. It is pointed out to us that so far as the petitioner Sahed alias Samed Mir is concerned the pro secution witnesses claimed to have recognised him, while he was swimming across a river, by flashing torch‑lights from behind and, secondly, that two of the prosecution witnesses who so claimed to have recognised him did not state before the investi gating officer about this fact of their recognition.

6. We do not, however, consider it necessary to express any opinion on these points raised by the learned Advocate because we do not think that it would be proper for us to do so in view of the fact that we propose to send back the case for re‑hearing. The Court of Appeal below will apply its mind to all these points as also the evidence on record and come to an independent conclusion of its own unfettered by anything that we might have said about the merits in this case.

7. The judgment is accordingly set aside and the case is sent back for re‑hearing to the lower Appellate Court and the Rule is disposed of accordingly. The petitioners will continue to remain on the same bail during the re‑hearing of the appeal.

8. Since there is no other Additional Sessions Judge in the district, the appeals may be heard by the learned Sessions Judge, as the Additional Sessions Judge concerned has already formed an opinion in this case. The papers may be sent down immedi ately and the appeal should be disposed of as expeditiously as possible. CHAKRABORTI, J.‑I agree. Judgment set aside : Case remanded.