ORDER
Hemeon, J.
1. The applicants Sahadeo and his brothers Mahadeo and Krishna were convicted and eaoh sentenced to pay two fines, each of Es. 25, Under Sections 852 and 448, Penal Oode by the Third Class Magistrate, Nagpur. They then filed an appeal in the Court of the Appellate Magistrate, Nagpur, who on 28th September 1948 after the receipt of the record passed the following order:
None present. Record perused. Copy of the judgment also has not been Sled as ordered on 30th July 1948. The appeal is dismissed summarily. The L. C. be informed.
The applicants have now come up in revision to this Court for the revision of the order of eon. victions and sentences or the remand of the case to the lower appellate Court for a hearing on merits.
2. The case briefly stated against the appli. cants was as follows. Shrimati Yenu, daughter of Jagannath (P.W. 1.) was married to the applicant Sahadeo, but had stayed with her father from 80th May 1947 when she waa beaten by her husband. On 2nd June 1947, Jagannath had left his house in the morning and when he returned at about 10-30 A. M., he saw goondas standing outside the compound and Sahadeo dragging bis daughter by force. He accordingly rescued her, but in the afternoon when he was Bitting with his nephew Laxman, the three applicants, who were accompanied by goondas, entered his compound and Sahadeo attempted to enter the house but was obstructed by Jagannath. At this point, the applicants Mahadeo and Krishna came forward and when Jagannath had obstructed Sahadeo who waa trying to break open the door, Sabadeo caught him by the neck while Mahadeo and Krishna pulled him down and slapped him.
3. Sahadeo in examination admitted that be had gone to Jagannath's house at about 10-30 a. m, on 2nd June 1947, but claimed that he had done bo because his wife and Jagannath had in. vited him and he denied that he had on that occasion dragged his wife, He also denied that ha had returned to the house at ahout 8 p. m. on the same day. Mahadeo and Krishna disclaimed all connection with the occurrence, Four witnesses were examined in defence.
4. The memorandum of appeal was presented on 80th April 1948 by the applicants' counsel who requested the stay of tbe recovery of the fines pending the disposal of the appeal. A certified copy of the judgment was not filed on that occasion and the Appellate Magistrate ordered that it should be filed by 12th August 1943. He also ordered that the record should be obtained. On 12th August 1948, the applicants' learned Counsel appeared but the record had not arrived and the case was posted to 25th August 1948 when another adjournment to 7th September 1948 had to be given because of the non-arrival of the record The applicants' learned Counsel was also present, on that occasion.
5. On 7th September 1948, the applicants were present, but the record had not been received and another adjournment had to be given to the following day when the record again was not received. The ease was adjourned to 18th September 1943 when the Appellate Magistrate directed the issue of a memorandum to the Additional District Magistrate, Nagpur, concerning the missing record. The applicants' counsel attended that hearing; but neither he nor they were present on 25th September 1948, the date to which the case was adjourned. On that day, the Appellate Magistrate adjourned the case to 28th September 1943 when at 1 P M. he passed the order which has been reproduced in the opening paragraph of this order.
6. It is not clear from that order whether the Summary dismissal of the appeal was based on the merits, although it is true that the order contains the words ''record perused,' It, how-ever, also contains the words and figures 'Copy of the judgment also has not been filed as ordered on 30th July 1948' and it must be assumed that the summary dismissal of the appeal was due to the non-filing of the judgment for the reason that the Appellate Magistrate made no reference of any kind to the merits of the appeal.
7. Section 419, Criminal P.C. lays it down that every petition of appeal shall, unless the Court to which it is presented otherwise directs, be accompanied by a copy of the judgment or order appealed against, and here,'as shown, the Appellate Magistrate bad specifically ordered the certified copy of the judgment to be filed by 12th August 1948. There was no compliance with that order even on 28th September 1943 and it follows that when the Appellate Magistrate summarily dismissed the appeal, he could not have acted Under Section 431, Criminal P.C., because that section postulates the perusal of a copy of the judgment. This was the view of Bennet J. in Emperor V. Bansgopal : AIR1934All206 in which he made the following observations:
There are no definite rules laid down In regard to tbe action to be taken by the appellate Court where the petition of appeal does not comply with 8. 419, Criminal P.C. Code, i. e. where there is no copy of the judgment attache1 t9 the appeal. But it appears to me that it is open to the appellate Court to take action where the copy is not supplied. The question i3 what is the nature of that action. I consider that the action taken in the present case may be correctly described as rejection of the appeal and not as dismissal. The appeal is rejected because it did not comply with the provisions of 3. 419. A similar order would have been passed (or the rejection of the appeal if the appeal had been filed beyond the period of limitation. In both cases I consider that the order rejecting the appeal cannot be held to be an order amounting to a judgment within the meaning of H. 369. Under that section it is laid down in various rulings that the section applied to judgments and not to orders of rejection on the ground of formal defects. It has been so decided in Ibrahim v. Empero A. I.L.R. 1928 Rang. 288: 30 Cri L. J. 749 that where a criminal Court dismisses an appeal for default of appearance, it is not a judgment and that the judgment contemplated by Section 869 is a decision on the merits.
8. On this view with which I am in respectful agreement, the appellate Magistrate's order in the present case may be regarded as a rejection and not a dismissal of the appeal. There is thus no bar to the consideration of the appeal on its merits and I order that it be heard and disposed of according to law by the appellate Magistrate, Nagpur, after due notice has been given to the parties concerned and after a certified copy of the judgment has been filed.