ION Criminal Appeal No 14 of 1959
Appeal by special leave from the judgment and order dated November 19 1957 of the Bombay High Court at Rajkot in Criminal Appeal No 137 of 1957 arising out of the Judgment and order dated August 31 1957 of the Sessions Judge Sorath Division Junagadh in Sessions Case No 26 of 1957
P K Chatterjee for the appellant
H J Umrigar and B H Dhebar for the respondent
131 1960 February 26
The Judgment of the Court was delivered by IMAM J
This appeal is by special leave
The appellant was convicted under section 304 Part I of the Indian Penal Code and sentenced to imprisonment for life
He appealed to the Bombay High Court
According to the judgment of the High Court the appeal was admitted only on the point of sentence
The High Court reduced the sentence from imprisonment for life to 10 years  rigorous imprisonment
It was submitted on behalf of the appellant that the High Court could not in law admit an appeal only on the point of sentence and the appellant was entitled to have his appeal heard on the merits of his conviction as well
The evidence upon which the appellant was convicted was unsatisfactory and he was entitled to be acquitted
Shortly stated the case of the prosecution was that the appellant had caused the death of Zina Hira on April 6 1957 when the deceased was returning from an adjoining village to the village of his residence
The appellant met him on the way and accused him of having committed theft in the appellant s house which the deceased denied
Upon this the appellant attacked him with a stick which had iron rings round it
A number of blows were given by the appellant with this stick in consequence of which Zina Hira fell down
Although a doctor was called for from Keshod 8 miles away ultimately the deceased was taken to Junagadh for better medical treatment but died on the way in the early hours of the morning of April 7
According to the case of the appellant he was not present at the scene of the crime and pleaded not guilty to the charge
According to the judgment of the High Court the appeal of the appellant before it was admitted only on the point of sentence
It was urged that this procedure adopted by the High Court was not in conformity with the provisions of sections 421 and 422 of the Code of Criminal Procedure
Reliance was placed upon the decisions of the Calcutta High Court and Patna High Court in the cases of Nafar Sheikh vs 132 Emperor 1 Gaya Singh vs King Emperor 2 Sudhir Kumar Neogi and Another vs
Emperor 1 and Sheikh Rijhu and Others vs Emperor 4 and of the Privy Council in the case of The King Emperor vs Dahu Raut 5
Reference was also made to the decision of the Patna High Court in the case of Kuldip Das vs King Emperor  6  and the decision of the Bombay High Court in the case of Bai Dhankor vs Emperor7
In order to appreciate the submission made on behalf of the appellant reference to certain provisions of the Code of Criminal Procedure in Chapter XXXI concerning Appeals will be necessary
Under section 4181 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
It is unnecessary to refer to sub section
2 of this section for the purposes of this appeal
Under section 419 every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall unless the Court to which it is presented otherwise directs be accompanied by a copy of the judgment or order appealed against and in cases tried by a jury a copy of the heads of the charge recorded under section 367
As to what should follow on the presentation of such a petition it will be necessary to quote the provisions of sections 421 and 422 of the Code
Section 421 reads  421 1 On receiving the petition and copy under section 419 or section 420 the Appellate Court shall peruse the same and if it consideres 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
2 Before dismissing an appeal under this section the Court may call for the record of the case but shall not be bound to do so
 1 Cal
2 Pat
3 AIR 1942 Pat 46
4 AIR 1931 Pat 351 5 1935 LR 62 IA 129
6 Pat
7 1937 ILR CB Bom 365 133 Section 422 reads  422
If the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard and shall on the application of such officer furnish him with a copy of the grounds of appeal and in cases of appeal under section 411A subsection 2 or section 417 the Appellate Court shall cause a like notice to be given to the accused
 It is clear from these provisions that on receiving the petition and a copy under section 419 the Appellate Court shall peruse the same and if it considers that there is no sufficient ground for interfering it will dismiss the appeal summarily and that if the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard
The recording of an order that the appeal is admitted when it is not summarily dismissed is not a happily chosen expression as was pointed out by the Privy Council in the case of The King Emperor vs Dahu Raut 1
Section 421 gives ample power to the Appellate Court to dismiss an appeal summarily if it considers that there is no sufficient ground for interfering
On the other hand if it does not dismiss the appeal summarily then it is obligatory upon it to cause notice of the appeal to be given to the appellant and to such officer as the State Government may appoint in this behalf of the time and place at which such appeal will be heard
These provisions do not contemplate a partial summary dismissal of an appeal as was pointed out by the Privy Council in the above mentioned case where it was stated by Lord Thankerton  The terms of the section equally exclude the possibility of partial summaary dismissal e g in so far as the conviction is appealed against
Failing summary dismissal the provisions of sections 422 and 423 apply and in their Lordships  opinion the pro 1 1935 LR 62 l
A 129 134 visions as to notices in section 422 and the provisions as to sending for the record in section 423 are clearly peremptory and there can be no room for revision at that stage
 It was however submitted on behalf of the State of Bombay that the facts in the case before the Privy Council can be distinguished from the facts of the present case because in the case before the Privy Council no notices were issued under section 422 and the record was not sent for in accordance with section 423
In the present case notices were issued under section 422 and the record was sent for in accordance with section 423 of the Code
Particular reliance was placed upon the con cluding portion of the Privy Council judgment to the following effect   Accordingly their Lordships will humbly advise His Majesty that the appeals should be allowed and that it should be declared that upon the true construction of the Criminal Procedure Code the Appellate Court is entitled to dismiss an appeal summarily in terms of section 421 unless the Court is satisfied that there is no sufficient ground for interfering in accordance with the relief sought in the appeal and that where the appeal is not dismissed summarily the court is bound in order to the disposal of the appeal to comply with the provisions of section 422 as to notice and with the provisions of section 423 as to the sending of the record if such record is not already in Court   It seems to us however having regard to the provisions of the Code that while an Appellate Court has power to dismiss an appeal summarily if it considers that there is no sufficient ground for interfering it has no power to direct as in the case before us that the appeal shall be heard only on the point of sentence
Such an order is not an order of summary dismissal under section 421 and neither is it an order in terms of section 422 of the Code
When an appeal is filed it is an appeal against conviction and sentence and it is not permissible for an Appellate Court to direct that it shall be heard only on  the question of sentence
Our interpretation of sections 421 and 422 is in keeping with the interpretation of these sections by the 135 Privy Council in Dahu Raut s case
The decisions of the Calcutta High Court and the Patna High Court in Cal
606 AIR 1942 Pat
46 Pat
254 referred to above appear to us to be correct
In these circumstances reference need not be made to the view expressed by the Patna High Court in 1932 ILR II Pat
697 which was a judgment before the decision of the Privy Council in Dahu Raut s case
The decision of the Bombay High Court in ILR endeavoured to find a way in which the difficulty could be resolved where the Appellate Court was of the opinion that only the question of sentence was involved
For the purposes of this appeal it is unnecessary for us to say anything about this decision because what was stated there does not arise for consideration as in the present case according to the judgment of the High Court the appeal was admitted only on the point of sentence
It was also urged by Mr Umrigar that under section 423 an Appellate Court had the power to reduce the sentence
That is so but that power can only be exercised after the requirements of section 422 have been complied with The Appellate Court after hearing the appeal certainly has the power in finally disposing of the appeal to reduce the sentence but that does not entitle it to direct that an appeal is admitted only on the question of sentence
We make it clear however that in dealing with Mr Umrigar s submission on this point we are concerned with the powers of an Appellate Court and not with the power of a High Court in the exercise of its revisional jurisdiction which does not arise for consideration in this appeal
In our opinion the form of the order admitting the appeal in the present case was invalid and the appellant could have insisted that since the appeal had not been summarily dismissed the High Court should have heard his appeal on the merits as well
As the appeal was not heard on the merits we considered whether the appeal should be sent back to the High Court for rehearing on the merits
We have however thought it fit to hear the appeal on the merits for ourselves
136 We accordingly heard the learned Advocate for the appellant on the evidence
It is clear to us from a perusal of the evidence that the case has been amply proved against the appellant
There was an eye witness who saw the appellant assaulting the deceased with a stick
He was in some way related to the deceased which he attempted to deny otherwise there is nothing in his evidence to induce a court to distrust his testimony
This eye witness Bava Tapu immediately after the assault went to the Police Patel of Simroli one Keshav and told him that the deceased had been assaulted by the appellant
Keshav corroborated Bava Tapu in this respect
Keshav s evidence in this respect is also corroborated by Natha Jiwa who stated that Bava Tapu came and informed Keshav that Zina Hira had been severely assaulted and injured by the appellant
Bogha Jiwa also corroborated Keshav in this respect
None of these witnesses have any real motive to depose against the appellant
In addition to this evidence there was the dying declaration of the deceased as to who his assailant was
Furthermore there was the recovery of a stick buried underground at the instance of the appellant which was found to be stained with human blood according to the report of the Serologist
The other circumstantial evidence need not be referred to
It was urged on behalf of the appellant that the reason for the appellant assaulting the deceased could not be true as no reference was made to it in the First Information lodged by Keshav
Reference also was made to the evidence of the Police Officer Priyakant that no information of the theft had been lodged by the appellant at the thana
The appellant in his statement denied that the deceased had committed any theft in his house and the witness Karsan brother of the appellant had stated in cross examination that there had been no theft in their house
This witness was examined by the prosecution but was declared hostile and permission was granted by the Court to cross examine him
It seems to us however that even if the story about the accusation of theft against the deceased made by the appellant was not stated in the First Information the omission is of little consequence because even 137 Keshav stated in the First Information that he ha enquired from Bava Tapu as to how the quarrel ha started
Merely because there was no information lodged about the theft at the police station it doe not necessarily follow that the appellant could no have been suspecting the deceased
The denial of the appellant and of his brother cannot assume much
importance as it would be natural for them to den any such thing
Apart from this even if the read cause for the assault may be obscure if the evidenc is clear that the appellant assaulted the deceased matters very little if the Court has not before it a verclear motive for the assault
As we have already said apart from Bava Tapu hesitating to admit that he was somewhat related to the deceased there was no apparent motive for him to depose against the appellant in such a serious case as this
His conduct would show that he had in fact witnessed the assault because immediately after the assault he went to the Police Patel Keshav and informed him that the appellant had assaulted the deceased with a stick
There is no reason to doubt the genuineness of the dying declaration
There is no good reason for supposing that the deceased would have accused the appellant falsely a there was no previous enemity established
It is also unlikely that he would let go his real assailant and accuse the appellant falsely
The dying declaration in corroborated by the evidence of the eye witness Bava Tapu
It further receives corroboration from the recovery of the stick stained with human blood at the instance of the appellant which had been identified by Bava Tapu as belonging to the appellant
It is clear therefore that the evidence in the case which we have carefully examined and see no good reason to distrust established beyond doubt that the appellant had struck the deceased several blows with a stick and thus caused his death
He was therefore guilty at least under section 304 of the Indian Penal Code as found by the trial court
The reduced sentence imposed by the High Court does not appear to be unduly severe  The appeal is accordingly dismissed
Appeal dismissed


Summary:
The respondent had made an application under section 53 C Of the Companies Act 1913 with an alternative prayer for winding up against the appellant company to the District judge Poona who had been authorised under the Act to exercise jurisdiction
While the application was pending the Companies Act 1913 was repealed by the 
The appellant company thereupon applied to the District judge to dismiss the application on the ground that he had ceased to have any jurisdiction to deal with the application on the repeal of the Of 1913
Held that section 6 of the General Clauses Act preserved the jurisdiction of the District judge to deal with the application under section 153 C Of the Indian Of 1913 notwithstanding the repeal of that Act
Section 647 of the did not indicate any intention to affect the rights under the Indian of 19I3 for section 658 of the of 1956 made section 6 of the General Clauses Act applicable notwithstanding anything contained in section 647 of that Act
86 Section 24 of the General Clauses Act does not put an end to any notification
It does not therefore cancel the notification issued under the Indian of I9I3 in so far as that notification empowered the District judge to exercise jurisdiction under section 153 C of the Indian of I9I3 even though under section 10 of the of 1956 a District judge can no longer be empowered to exercise jurisdiction under a sections 1397 to 407 of the  which correspond to section I53 C Of the Indian  19I3 or b in respect of the winding up of a company with a paid up share capital of not less than Rs 100000 which the appellant company was