1962 (1) TMI 91

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.... jurisdiction and directing the Magistrate to take immediate steps to execute the order passed by it, according to law. The appellants were convicted by the Magistrate, I Class, Gyanpur, of offences under ss. 452 and 323 read with s.34, I.P.C. Kharpattu, one of the appellants, was also convicted of an offence under s. 324, I.P.C. They appealed against their conviction. The appeal was fixed for hearing on November 30, 1956. On that date, neither the appellants nor their counsel appeared in Court and the learned Sessions Judge dismissed the appeal. The relevant portion of his order is: "The appellants have been absent, and their learned counsel has also not appeared to argue the appeal on behalf of the appellants. I have perused t....

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....dgment was arrived at and that it was necessary that the appeal be re-heard in the ends of justice. Sri Tripathi, who succeeded Sri Tej Pal Singh as Sessions Judge, and before whom the appeal was put up for re-hearing, was of the opinion that the appellate Court had no power to review or restore an appeal which had been disposed of and that therefore the order of his predecessor dated July 2, 1957, was ultra vires and passed without jurisdiction. Against this order, the appellants went in revision to the High Court. The learned Judge of the High Court agreed with the views of Sri Tripathi and accordingly, dismissed the revision application. The sole point for determination in this appeal is whether Sri Tej Pal Singh could set aside....

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.... when he thought that s. 423 of the Code enjoined the appellate Court to dispose of the appeal after hearing the appellant or his pleader and the Public Prosecutor. He omitted to notice the words 'if he appears' after the expression 'and hearing the appellant or his pleaders. If none of these appears at the hearing, the appellate Court can proceed with the disposal of the appeal on merits. Of course, a notice to the appellant or his counsel of the date of hearing is an essential precedent for the hearing of the appeal, in view of s. 422 of the Code, Sri Tej Pal Singh states, in his order dated July 2, 1957: "It will also appear that the conditions of s.422, Cr. P. C. were also not fulfilled, as no notice was ever issued....