SHYAM DEO PANDEY & ORS. versus STATE OF BIHAR

Citation: [1971] SUPP. 1 S.C.R. 133 · Decided: 23-03-1971 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

SHYAM DEO PANDEY & ORS. 
v. 
STATE OF BIHAR 
March 23, 1971 
133 
A 
[C. A. VAIDIALINGAM AND A. N. RAY, JJ.J 
B 
Code of Criminal Procedure (Act 5 of 1898), s. 423-Absence of ap-
pellants and counsel al the time of final disposal-Dismissal on merits-
Duty of ~ppellate court to peruse records. 
The appellants were convicted and sentenced for the offence of kid-
napping. They filed an appeal which was admitted by the High Court 
and notice was ordered to be issued. 
On tho date on which the appoal 
C 
was posted for hearing neither the appellants nor their counsel appeared 
.and the High Court dismissed the appeal in the following terms: 'On per-
usal of the Judgment under appeal I find no merits in the case. It is ac-
.cordingly dismissed.' 
On the question whether the disposal of the appeal by the High Court 
is in conformity .with s. 423, Cr. P. C., 
HELD: lf a criminal appeal by the accused is not dismissed summa-
~ 
rily uoder s. 421 of the Code and notice as required by s. 422 is issued. 
then, under s. 423, it is obligatory for the appellate court to send for the 
record, if it is not already before the Courl After the records are before 
the court and the appeal is set down for hearing, it is essential that the 
appellate court should: (a) peruse such record; (b) hear the appellant or 
his pleader if he appears; and (c) hear the public prosecutor if be appears. 
After complying with these requirements, the appellate court has full power 
E 
:to pass any of the orders mentioned in the section. If the appellant and 
his counsel are not present the appellate court cannot dismiss the appeal 
for default. The court has either to adjourn the hearing of the appeal to 
enable them to, appear or it should consider the appeal on merits and 
pass final orders. The tonsideration of the appeal on merits at the stage 
-0f final hearing and deciding the appeal on merits and passing final orders 
will not be possible unless the reasoning and findings recorded in the judg~ 
ment under appeal -are tested in the light of the record of the case. While 
p 
there i<.; no emphasis on the perusal of the record in s. 421 at the admission 
stage, under s. 423, one of the essential requirements and a condition pre~ 
cedent to a final disposal of the appeal either by dismissing it or in any 
other manner contemplated by the section. 
is that. the appellate court 
·should peruse the record. The requirement regarding the perusal of the 
record that has been sent for and received in court before disposing of an 
.appeal is not an empty formality. On the contrary, the expressiqn •after 
perusing the record' in the section assumes importance in the context of 
G 
the enormous powers that the appellate cour't has in the final disposal of 
the criminal appeal. 
Record of the case does not mean only the judg-
ment, because, that must have already been perused under s. 421 when 
the High Court admits the appeal 
[140A-B, C, E, G-H; 141A-D, H; 1428-
C, 0-E, F-H; ,l43A-B] 
In the present case, there is no indication in the order that it was 
H 
passed after perusing the record that must have been sent for as requtred 
by s. 423(1). From the mere recital in the High Court's order that there 
is no merit in the case it is not possible to infer that the High Court has 
come to the conclusion after applying its judicial mind and after perusing , 
134 
SUPREME COURT REPORTS 
(1971] SUP~S.C.R. 
A 
B 
c 
D 
E 
F 
H 
the record. There must be a clear indication in the judgment or order of 
the appellate court that it has applied its judicial mind to the particular 
appeal it was dealing with. 
Such an indication will be available when. 
the appellate court bas considered the material on record which means. 
not only the judgment and petition of the appeal, but also other relevant 
materials. Since the impugned order of the High Court was passed with-
out considering the material on record the order was not in conformity 
with s. 423 of the Code and had to be to set aside. 
[l43C-D, E-G, H; 
144A-C] 
Sankatha Singh v. State of U.P. [1962] Supp. 2 S.C.R. 817, 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
283 of 1968. 
Appeal by special leave from the judgment and order dated 
May 10, 1968 of the Patna High Court in Criminal Appeal No. 453 
of 1966. 
S. N. Prasad, for the appellants. 
R. C. Prasad, for the respondent. 
The Judgment of the Court was delivered by : 
Vaidialingam, J~The short question that arises in this 
appeal, by special leave~ is wh

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