P L D 1953 Federal Court 138 (PLP)

ABDUL RASHID, C. J.‑I would base my decision in this case solely on the ground that all Criminal Appeals must be dealt with by Appellate Courts in strict accordance with the provisions contained in Chapter XXXI of the Cr. P. C., and that no appeal can be dismissed by the High Court on the A ground that the "appellants have not surrendered to their bail and are in contempt". The dismissal of the appeal cannot be imposed as a penalty for the failure of the appellants to sur render to their bail bonds, as there is no provision to this effect in the Cr. P. C. The disposal of the appeal can be postponed, in suitable cases, till the appellants have been arrested. It was pointed out by their Lordships of the Privy Council in the case of King‑Emperor v. Dahu Raut (A I R 1935 P C 89) that Chapter XXXI of the Code is a complete code relating to appeals, and that the Appellate Court referred to therein include other Courts than the High Court. Where the jurisdiction of the Court is statutory, the Court, however admirable its intentions, is not entitled to go outside these provisions and in effect to legislate for itself. In dealing with criminal appeals, it is not open to an Appellate Court to rely on any abstract principles of "general law" or the practice prevailing in any particular High Court. I would, therefore, allow this appeal, set aside the order of the High Court, dated the 23rd May, 1952, in respect of the appellants, and remit the case to the High Court for the disposal of the appeal preferred in that Court on the merits. The bail application of the appellants will be taken into consideration by the High Court at the earliest date. SHAHABUDDIN, J.‑I have had the advantage of perusing the judgments of my Lord the Chief Justice and my brother Cornelius. I entirely agree with their views and find it un necessary to add any observations of my own. I agree that this appeal be disposed of in the manner proposed by them. CORNELIUS, J.‑This appeal by special leave is brought before this Court on behalf of Nofazulla and twelve other persons, against an order of a Division Bench of the Dacca High Court, dated the 23rd May, 1952, whereby their appeal from convictions for rioting and causing hurt, the maximum sentences being 18 months' rigorous imprisonment, were "sum marily dismissed" on the ground that they were "in contempt". One other person, namely, Atikulla had been convicted at the same trial with the thirteen appellants, of rioting and culpable homicide not amounting to murder, receiving sentences of which the longest was 5 years' rigorous imprisonment. All the convicted persons had filed a joint appeal before the High Court, on the 9th May, 1952. The order of the Dacca High Court is brief, and the portion thereof which is relevant for the purposes of this judgment may be conveniently quoted in extenso. It reads as follows: "The appeal of appellant No. 1 Atikulla only will be heard. Call for the records and issue the usual notices. It is represented by Mr. Ashrafuddin Chowdhury that the remaining thirteen appellants were released on a bail by the Sessions Judge until the filing of their appeal in this High Court. Their appeal in the High Court was filed on the 9th of May, 1952. The thirteen appellants have not surrendered to their bail and are in contempt. Their appeals are summarily dismissed." The learned Advocate‑General appearing on behalf of the Crown agrees that the order of the High Court creates an anomalous situation pf some difficulty, inasmuch as the appeal of the principal culprit in the case is still before the High Court, whereas those of his alleged associates in the crime have been dismissed. The learned Advocate‑General has frankly conceded that he is unable to support the order appealed against, by reference either to the statute law governing criminal appeals, or to the law of contempt of Courts, or to any "general law" having a bearing on the subject. In the circumstances, it is not necessary to deal with the case at any great length. There were nineteen accused persons in the case which was tried by the Sessions Judge of Sylhet with the aid of assessors, on different charges. The charge of rioting was laid against all of them, and in addition, four persons were charge in connection with the killing of one Yakut Mia, under section 302 and section 302/109, P. P. C. besides which eight others were charged under section 324, P. P. C. with causing hurt to others of the complainant party besides Yakut Mia. The prosecution case was that the complainant party were attacked because some of their members had seized on their land‑trespassing cattle belonging to members of the accused party. The defence denied the complicity of the accused persons altogether, and suggested that all the injuries on the complainants' side had been caused in a fight between members of the complainant party itself. The defence further suggested teat the incident had occurred at a totally different place from that indicated by the prosecution. The trial Judge believed the evidence of the prosecution witnesses, as regards the place of occurrence as well as the nature of the incident, although in disbelieving the defence version, he had to overlook, what he has described as :‑ "some discrepancies in the evidence of the witnesses and the sketch map of the Investigating Officer regarding the actual place of occurrence in the field, and the finding of the dead body on the bank of the tank in front of the house of Afruj and his brothers." Afruj, Shafruj and Mafruj, appear to be brothers and cousins of Suruk Mia, father of the murdered man Yakut Mia, and the trial Judge has referred to evidence led in the case to show the existence of enmity 'of long‑standing between Afruj's branch and Suruk Mia's branch, which has led to two murder cases and a dacoity case. Reference has also beets accused persons. The judgment also shows that out of the eight prosecution eye‑witneses, six were members of the complainant party, one, namely, Mansuruddin, who was not apparently connect with the complainant party had suffered injuries in the affair, and the last, namely, Atabulla was alleged to be a servant in Suruk Mia's family and to be hostile to one of the accused persons on account of some criminal litigation. I mention these matters in order to show that the case involved disputed questions of the fact of great importance, as well as the question, always a difficult one, of the degree of reliance which can be placed upon partisan evidence, when weighed in relation to circumstances adduced by the prosecution and by the defence. A most essential part of the administration of justice consists of the system of appeals. All appeals in this country exists by statute, and with reference to criminal appeals, an exhaustive code settling both jurisdiction and procedure is contained in Chapter XXXI of the Code of Criminal Procedure. In a case like the present, the High Court is the final Court of fact, and is not bound by any of the findings recorded in the trial Court, since the trial was not by jury. It is, therefore, invested with the clear duty of examining the entire case, in accordance with proper principles, to consider whether the findings of the Court of first instance can be supported, or on the contrary, whether it is necessary to revise or replace those findings. The cardinal duty of administering justice to the persons accused before the Court depends upon the due performance of this function. It is absolutely necessary in cases of this kind not to admit finality for any decision of a Judge of first instance. It is plain that the case before the High Court was of a nature which required, for the due dispensation of justice that the entire evidence should be re‑examined in relation both to the general and the particular allegations of the prosecution, and specifically in relation to each accused person. That duty has not been performed, and the question before the Court is whether the non‑performance can be justified upon any grounds. It has not been pressed before us, and the question therefore need not be considered in detail, that the powers of an Appellate Court acting under Chapter XXXI of the Cr. P. C., are in any way enlarged against either patty to the appeal by reason of the conduct of that party. Indeed, it is settled law that even if an appellant makes default in appearance at the hearing of the appeal, the appellate Court must nevertheless decide the appeal upon the merits as appearing from such record as is before the Court, and cannot dismiss the appeal in default. The suggestion made before this Court at the hearing at which the special leave to appeal was granted, namely, that in the Calcutta High Court, there is a practice of disallowing appeals unless the appellant has surrendered to bail granted by convicting Court, was not taken up on behalf of the Crown, and in the absence of information, it is unnecessary to consider the matter further. In making their order, the learned Judges of the Dacca High Court appear to have thought that by not having surrendered to the bail granted to them by the trial Court up to the 23rd May. 195 _', the appellants had in some way infringed the law applying to them so seriously as to Invite the penalty of dismissal of their appeal. This view of the learned Judges in my opinion, has been based on a misapprehension of the relevant terms of the statute which are contained in subsections (1) and (2‑A) of section 426 of the Code of Criminal Procedure which are reproduced below: "(1) Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or his own bond. (2A) When any person other than a person accused of a non -bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under subsection (1) and the sentence of imprisonment shall, so long as he is released on bail, be deemed to be suspended." It is represented on behalf of the appellants that the trial Judge who granted interim bail under subsection (2A) to twelve of the appellants on the 8th March, 1952, and to the thirteenth appellant on the 28th March, 1952, placed them in a difficult and anomalous position by failing to fix a terminal date by which they should obtain an order from the High Court suspending their sentences (or otherwise). The learned counsel also referred to the' terms of the orders made by the trial Judge, and of the bail bonds which were furnished by the convicts. In the first order, the only reference to the duration of the bail granted appears in the following words contained in the order: "Heard pleader on petition of 12 accused persons for ad interim bail to prefer appeal before the Honourable High Court." But in the other order, trial Judge purported to grant bail: "pending filing of appeals before the Honourable High Court." The bail bonds furnished were, however, in identical terms and the undertaking was that the convicts would appear "if called upon by this or any other Court". It was urged that since the appellants had not been called upon to appear in any Court up to the 23rd May, 1952, they had done nothing to forfeit their bonds by that date, and the learned Judges of the High Court were in error in thinking that they had contravened any legal obligation lying upon them in relation to their appeal. There can be no doubt that on the wording of subsection (2A) it was the duty of the trial Judge to fix a period which was, in his opinion, reasonably sufficient for the convicts to prepare and e present their appeal in the High Court and also "to obtain the orders of the Appellate Court under subsection (1)". In my opinion, all Courts affected should be duly instructed in this sense, if this has not already been done. If the terminal date fixed by the trial Judge had been a date earlier than the 23rd May, 1952, it would perhaps have been necessary for the convicts to explain why they did not move for an order from the High Court earlier although, even in case they had no satisfactory explanation to offer, their appeal would not have been prejudiced thereby, however their bail application might fare. Despite the fact that no terminal date was fixed by the trial Judge, it is nevertheless, in my opinion, possible to ascertain with sufficient clearness by a proper construction of sub sections (2A) and (1), read together, the nature of the obligation resting upon convicted persons to whom the benefit of bail before appeal has been allowed. It is clear that the facility extends, at the most, to the date upon which, using ordinary diligence, the convict is able to obtain the order of the Appellate Court suspend ing his sentence and directing his release on bail. Such a date need not necessarily be the date upon which the appeal is filed. In the course of the argument, it was ascertained from the learned counsel appearing for the parties, both of whom are experienced members of the Dacca Bar, that the practice of obtaining an order for bail by means of an urgent application annexe) to the appeal is not ordinarily followed in the Dacca High Court, but the bail matter comes up before the High Court on the same date and at tile same time as the appeal itself comes up for orders either section 421 or section 422 of the Code. From this it is apparent that in the Dacca High Court, the period necessary to enable a convict to obtain an order suspending his sentence and granting bail is co‑terminous with the period which is necessary for procuring an order under section 422 of the Code. Applying the principle to the present case, it is clear that the facility allowed to the convicts by the trial Judge could not be supposed, in the absence of a terminal date fixed by himself, to have been determined by the filing of their appeal on the 9th May, 1952, but must be held to have extended upto the 23rd May, 1952, when the appeal came up for an order before a Division Bench for the first time. 1n this view of the matter, it is apparent that there was no non‑compliance by the convicts with any legal requirement applicable to them, and the order of the Dacca High Court dismiss ing their appeal would thus appear to have been based upon a misconception in this respect. That, however, is not the ground, upon which it is necessary for this Court to interfere for the purpose of correcting that order. The serio us defect from which it suffers is that the making of such an order is entirely outside the provisions contained in Chapter XXXI of the Criminal Procedure Code which is a complete Code relating to appeals, nor can power to make such an order be derived from any other law, written or unwritten, that is either known or has been brought to the notice of this Court. No practice of the Dacca High Court or the Calcutta High Court justifying such an order has been relied upon in the course of the argument in the present case, but even if there were such a practice, it would be necessary for this Court to decline to accept it as a guide for the determination of the rights of subjects under the criminal law, to any extent that it could be shorn to be inconsistent with the relevant statutory provisions. It is not open to the Courts, however elevated their status may be, and however admirable their intentions, to make law for themselves in matters which are fully provided for by statute. In all such matters, the Courts must follow the existing law, and cannot legislate for themselves. I would, therefore, allow this appeal, and setting aside the order made in respect of the appellants by the High Court on the 23rd May, 1952, would direct that their appeal be restored, and be heard in due course along with the appeal of the co‑accused Atikullah. The High Court will also consider and make an order on the bail application of these appellants, at the earliest possible date. A.H. Appeal allowed.