P L D 1953 Federal Court 133 (PLP)

ABDUL RASHID, C. J.‑This is an appeal, by special leave, from a decision of the High Court of Judicature at Dacca in East Bengal summarily dismissing the appeal of the appellants under section 421 of the Cr. P. C. The appellants Khalil, Jalil, Seraj, Sonaullah, and two others, namely, Belat and Komal, were tried by Mr. A. S. Chowdhury, Assistant Sessions Judge of Mymensingh, for offences under sections 304/34, 147, 325 and 326 of the P. P. C. The trial was held with the aid of three assessors. The Sessions Judge convicted all the accused under section 147 of the P. P. C. and sentenced them to 4 months' rigorous imprison?ment each, except Khalil to whom no sentence :gas awarded under this section. The appellant Khalil was also convicted under section 304, Part 11, and was awarded a sentence of 41, years' rigorous imprisonment, Seraj and Sonaulluh appellants were also convicted under section 323 and were sentenced to 3 months' rigorous imprisonment under that section. The result of the trial was that Khalil appellant had to undergo rigorous imprisonment for 41 years, while the aggregate sentences of Jahl, Seraj, and Sonaullah, were 4 months, 7 months and 7 months rigorous imprisonment respectively. ? The case for the prosecution is that on the 15th of November 1950, the complainant Haji Mazam Ali sent some of his relations and other labourers at about 7 a. m. to reap paddy in his fields which are continuous to the field of Seraj accused. While the complainant's party were cutting paddy in his field, the accused Seraj, Jalil, Kornai and Belat came there and reprimanded the complainant's party for encroaching upon their land and cutting some of their paddy. The complainant's party denied the accusation, but nevertheless an altercation followed. The 4 accused heaped filthy abuse on the complainant's party. This brought the complainant Mazam Ali Haji and some other to the place of occurrence. These persons intervened and tried to bring about an amicable settlement of the dispute. The bundles of reaped paddy, which according to the Crown case numbered 20 in all, were removed to the house of Mohir‑ud‑Din and kept there for safe custody. After this had been done, the complainant and his party proceed to their village at about 10‑0 a.m. The path that they took passes by the house of Mokbul Haji, father of accused Jalil and Khalil. When they were passing by this house, they were surrounded and attacked by 18 persons including the 4 appellants : Khalil hit Jahar Ali on the, head which caused a very serious injury and felled the victim to the ground. There was then a general attack resulting in injuries to various persons of the compl2inant's party. The defence version was that the occurrence took place in the paddy fields belonging to Seraj appellant and his brother Abu Baker. The party of the complainant consisted of a largo number of persons armed with various weapons. They had cut some paddy from the field of the accused and were carrying it away when the accused intervened in order to prevent theft of their paddy. They were attacked by the complainant's party and this resulted in several injuries being caused to the appellants Khalil, Seraj, and Belat. The medical evidence shows that Khalil had one incised wound 3" x 1/8" on the right hand and two swellings on the head. Seraj had one swelling on the head and one incised wound: Belat had three swellings some of which were on the head. In the grounds of appeal preferred by the convicts in the High Court all the findings of fact given by the Sessions Judge were challenged. It was pointed out that all the witnesses for the prosecution were interested ; that the prosecution evidence did not give any reasonable explanation of the injuries on the persons of the three appellants ; that though the prosecution alleged that only 20 bundles of paddy had been cut, in fact 80 bundles of paddy were recovered from the house of Mohir-ud‑Din ; that it was clear from the facts elicited in tote cross-?examination of the prosecution witnesses that the right of defence of property had accrued to the accused persons ; and that in these circumstances, all the convicts were entitled to acquittal. The learned Judges of the High Court (M. A. Ispahani, J. and M. Ibrahim, J.) dismissed the appeal summarily on the 22nd August 1951. The order of dismissal is in the following words :‑ " This appeal is summarily dismissed ". This order does not show whether due consideration was given to any of the points included in the Memorandum of Appeal and reproduced above. Section 421 of the Code lays down that " on receiving the petition and copy under section 419 or section 420, the Appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering it may dismiss. the appeal summarily : Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same ". It is clear from the language of .the section "that it is incumbent on the Court, before dismissing an appeal under this section, to find that there is no sufficient ground for interference. Cases which raise complicated questions of fact and law should 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 found no force in any one of them. An order of " summary dismissal " must indicate in brief the reasons which led the Court to reach the conclusion that there was no sufficient ground for inter ference. It is true that this section gives the appellate Court power to dismiss an appeal summarily, but that power cannot be exercised in an arbitrary manner. While exercising its powers under section 421, the Court must take care to make it apparent that the power has been exercised with due regard to judicial considerations. The Court should give some reasons which may indicate to a superior Court that the questions arising in the case have been duly appreciated, acid the simplicity or the gravity of the offence charged has been taken into con?sideration. It was contended by Mr. Fazlul Huq, on behalf of the Crown that section 421 gives an absolute discretion to the Court to dismiss an appeal summarily, and that this discretion should remain unfettered so that it can be exercised by the appellate Courts in order to save public time and money. The obvious answer to this argument is that the absolute discretion given to the appellate Courts must be exercised in such a way as to secure due and efficient administration of justice, and to inspire confidence in the minds of the accused persons that g their case has been treated with due care and caution by the appellate Court. There might be cases which are so clear and simple that nothing whatever can be urged on behalf of the defence. In such cases it is open to the appellate Court to state that no sufficient ground has been made out for its interference and that the appeal is, therefore, liable to summary dismissal. The present case, however, is not case of this nature. The fields of the complainant and of the accused persons are contiguous to each other. One version has been put forward by the witnesses for the prosecution all of whom appear to be interested. A different version has been put forward on behalf of the accused. It is true that no witnesses have been called to prove the defence version. The prosecu?tion witnesses have, however, been cross‑examined at length to show that the defence version represents the truth. According to the prosecution, only 20 bundles of paddy had been cut when the initial altercation wok place, and these bundles were made over to the custody of Mohir‑ud‑Din. The recovery list shows that as many as 80 bundles of paddy were recovered from Mohir‑ud‑Din. The Court had, therefore, to consider whether there are circumstances in the case which show that a part of this paddy was cut from the field belonging to one of the accused persons. Another important question for consideration was whether the fight took place in the paddy fields or on the pathway passing near the house of one of the convicts. It is true that all these questions have been considered at length by the trial Court, but the trial Court is not the final Judge of fact. A mere perusal of the judgment cannot show whether the conclusions of fact arrived at by the trial Court are justified by the evidence on the record. This case required a careful analysis of the entire evidence and an examination of all the surrounding circumstances to determine the following points :‑ (1) Under what circumstances did three of the accused persons receive their injuries ? (2) Are all the prosecution witnesses as interested as the defence tries to make out ? If so, is it safe to rely implicitly on their testimony ? (3) If the witnesses are interested, are there any .circum?stances which unmistakable show that the prosecution version represents the truth and that the defence version is false ? (4) Did the fight take place in the paddy fields or on the pathway near the house of one of the accused ? (5) Did any right of defence of property accrue to the accused at any time ? If so, did they exceed such right ? Section 418 of the Code lays down that "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 shall lie on a matter of law only. Subsection (2) of section 423 c f the Code is to the effect that an appellate Court shall not be entitled to reverse the verdict of a jury, "unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him". It is clear, therefore, that under section 418 an appellate Court is a judge of fact as well as of law when the trial is held with the aid of assessors not by means of a jury. As the verdict of jury on questions of fact is final, an appellate Court must realise that its duty as an appellate Court is very much more onerous in cases tried with the aid of assessors than in cases where a jury trial is held. In dismissing this appeal summarily, it appears that the learned Judges of the Dacca High Court have not kept this distinction in mind. In a case involving complicated questions of fact they have made the Sessions Judge, when holding a trial with the aid of assessors, the final Judge of fact. This Court does not interfere in criminal matters unless miscarriage of justice has resulted by an abuse of legal processes or due to a violation of some principle of natural justice. It is a fundamental principle that every accused person shall be given the substance of a fair hearing in accord?ance with law in an appellate Court. This enjoins on the appellate Court the duty of exercising its discretion in a sound and judicial manner. Where discretion vested in a High Court has been exercised arbitrarily and has resulted in the substance of a fair hearing being denied to the accused, this Court must interfere in order to ensure that the appellant gets a fair hear?ing in the appellate Court. In a case of this magnitude involving complex questions the record should have been sent for, so that the learned Judges could deal adequately with the grounds of appeal preferred before them and come to an independent finding and from their own conclusions. This was not a fit case where they should have contended themselves with a mere perusal of the judgment of the trial Court. No hard and fast rule can be laid down which would govern the applicability of section 421 in all cases. This Court can only indicate that, in cases which are not tried by jury, the appellate Court should be most reluctant to exercise the discretion vested in it under section 421 unless the case 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 view of what has been said above, I would accept this appeal, set aside the order of summary‑ dismissal dated the 22nd August 1951, passed by a Division Bench of the Dacca High Court, and remit the case to the High Court of Judicature at Dacca with the direction that the appeal of the convicts preferred in that Court shall be reheard after sending for the record of the case. The appeal shall be fixed for hearing before Judges other than those who have already expressed their opinion. M. SHAHAB‑UD‑DIN, J.‑I agree and have nothing to add. A. R. CORNELIUS, J.‑I agree. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.