1969 P (PLP)

The petitioner No. 1 was convicted and sentenced under sections 147/342/353/411, P. P. C. to suffer rigorous imprisonment for six months, petitioners Nos. 2 to 6 were convicted and sentenc ed under sections 147/342/353/379, P. P. C. to suffer rigorous imprisonment for six months each and the petitioners Nos. 7 to 11 were convicted under sections 147/342/353, P. P. C. to suffer rigorous imprisonment for three months each by Mr. N. Basunia, Magistrate, 1st Class, Rajshabi. The short facts are that on 6‑7‑65 P. W. 1, E. P. R. Naik Alla Dita of Miraganj B. O. P. S. Charghat went out on patrol duty with 3 Sepoys P. Ws. 2, 3 and 4 towards Harirampur and Pakuria on the strength of a Command Certificate (Exh. 1) issued by P. W. 12 Jamadar Saghir Khan. The patrol party had rifles and ammunitions with them and also had uniform on. At about 10 p. m, when they reached Harirampur, they received a secret information that the Hindus of Habishpur were trying to migrate to India. The party proceeded towards Habishpur and when they reached near Parsuta, they noticed 3/4 persons on foot accom panying 2 buffalo cars. At the sight of E. P. R. personnel they fled away. The two carts were carrying m de and female, passengers. They gave out that they were Hindus and going to India. They could not however, produce any passport or valid travel document. The E. P. R. Party asked them to go to the Thana. Suddenly 200/250 persons variously armed came there from both sides and protested against their taking them to thana. These persons asked P. W. 1 to o to the local Chairman of the Union Council but he refused it. The accused persons then snatched away the rifles of P. W. 1 and his other three companions P. W. 1 recognised some of the accused persons. At this stage under order of accused Milan, the E. P. R. personnel were taken to his Baithak Khana and detained there. They also took away beret caps. The two carts with the passengers were also brought there and detained. The miscreants, guarded them in the night. In the next morning at about 6‑30 a.m. P. W. 12 came to the spot and P. W. 1 narrated the occurrence to him. He requested the people to release them but they refused. Thereafter at about 10‑31 a.m. P. W. 10 an Assistant Sub‑Inspector of local police station came to the scene and got them released. The rifles and beret caps were also made over to them. On these allegations First Information Report having been lodged, the local police investigated into the case and submitted charge‑sheet against the accused persons. Thus they were put on trial before the learned Magistrate to meet charges on various sections of the Penal Code. The plea of the accused was one of innocence. They asserted that the E. P. R. personnel were escorting two carts with Hindus towards the border and the members of the village. Defence party getting scent of it, surrounded the E. P. R. men along with the passengers in the two bullock carts. The defence further alleged that the E. P. R. personnel were indulging in unsocial activities and were assisting the Hindus to cross the border and that the action of the E. P. R. men did not find favour with the members of the public and so they protested and that is why the present false case was instituted just to harass them. Fifteen P. Ws. and one C. W. were examined in the case. Defence examined no witness. The learned Magistrate on appraisal of the evidence, convicted and sentenced the accused -petitioners as stated above. The accused preferred an appeal before the Sessions Judge, Rajshahi against the said order of conviction and sentence, but the learned Sessions Judge dismissed the appeal summarily by an order dated 29‑3‑

68. Being aggrieved thereby the accused‑petitioners moved this Court and obtained the present Rule. The learned Advocate appearing for the petitioners has con tended that the summary dismissal of the appeal was highly improper and unjustified and it caused a failure of justice in the case and serious prejudice to the accused. The record shows that the learned Magistrate framed three separate charges under sections 147/342/353, P. P. C. against all the accused persons. He also framed another charge under section 379, P. P. C. against 5 of them and another separate charge under section 411, P. P. C. against one of them. Thus there were several charges levelled against the accused petitioners. Turning to the judgment it appears that the learned Magistrate did not consider the separate charges framed against the respective accused persons separately and without considering the ingredients of different offences and the case of individual accused separately, convicted them in lump under all the sections charged against them with a finding :‑ "If the evidence is carefully gone through it will appear that different charges against the accused‑persons have been amply proved beyond any doubt." Law does not permit conviction of several persons in lump on several charges in such a manner as has been done in this case. The learned Sessions Judge has dismissed the accused's appeal summarily in a case where the defect in the judgment of the lower Court is apparent on the face of it. The appellate Court has, no doubt, power to dismiss an appeal summarily under section 421, Cr. P. C. if it considers that there is no sufficient ground for interference. But this power of summary dismissal of an appeal should be used sparingly in exceptional circumstances. The appellate Court should normally be reluctant to dismiss an appeal summarily, unless the case is of such a simple nature that a mere perusal of the judgment shows unmistakably that no substantial argument can be addressed to the Court on behalf of the convicts. In fit cases the Court shall unhesitatingly exercise its discretion under section 421, Cr. P. C. but cases which raise complicated questions of facts and law should not be dismissed summarily and be dealt with in such a manner that it should be apparent from the judgment that the appellate Court has applied its judicial mind to all the grounds urged before it and has no force in any one of them. In this connection the case of Khalil and others v. The Crown (P L D 1953 F C 133) may be referred to. In a case where 15 P. Ws. and one C. W. were examined and a number of accused persons were charged and convicted under various sections of the Penal Code, a summary dismissal of the appeal by the appellate Court without carefully considering the evidence and materials on record was not justified. It should not be forgotten that the appellate Court as a last Court of facts has duty to see whether the prosecution case has been proved, whether the accused persons have been rightly convicted and whether all the charges against them have been brought home by satisfactory evidence. It is thus incumbent upon a Court of appeal to consider each piece of evidence on record and come to independent findings on facts. But in the instant case, the learned Sessions Judge has dismissed the appeal summarily by an order of 6/7 lines, although the matter involves certain complicated questions of facts and law. The order hash caused not only a prejudice to the accused petitioners but also an absolute failure of justice in the case. The order of summary dismissal of the appeal by the learned Sessions Judge is, therefore, liable to be set aside and it is accordingly set aside. The matter is sent back to the lower appellate Court with a direction for re hearing of the appeal in accordance with law. The Rule is thus made absolute. The accused‑petitioners shall continue on the same bail till disposal of the appeal by the lower appellate Court. Rule made absolute.