Full Judgment
M.C. Desai, J.
1. The applicants filed an appeal from the conviction by the trial Court in the Court of the Sessions Judge, Bareilly. Though the memorandum of appeal was not accompanied by a copy of the judgment appealed from, it was accepted by the learned Sessions Judge and the appeal was registered and was then transferred to the Civil and Sessions Judge, Pilibhit for further proceedings,
The learned Sessions Judge also accepted the applicants' application for suspension of the execution of the sentence of imprisonment imposed upon them and released them on bail. In the Court of the learned Civil and Sessions Judge the applicants applied for permission to file a copy of the judgment but the application was dismissed by the learned Civil and Sessions Judge on the ground that by that date the period of limitation for filing an appeal had expired. Then the learned Civil and Sessions Judge dismissed the appeal itself on the ground that the memorandum of appeal was not accompanied by a copy of the judgment.
2. The learned Civil and Sessions Judge was in error when he refused the applicants' applicationfor permission to file a copy of the judgment and when he dismissed the appeal solely on the ground that no copy of the judgment accompanied the memorandum of appeal. Once the memorandum of appeal was accepted and the appeal was registered, it was not open to him to dismiss the appeal simply on the ground of the defect in the presentation of the memorandum of appeal.
After the appeal had been admitted and registered and a notice had been issued to the district Government Counsel, the appeal could be dismissed, vide Section 423, Code of Criminal Procedure, only on the ground that there was no case made out for interference. It was certainly a defect that the memorandum of appeal was not accompanied by a copy of the judgment but no notice was taken of it and no action was taken for its removal. When the appeal was received and registered the applicants might have thought that there was no defect or that it was condoned.
The learned Civil and Sessions Judge was not debarred by the law of limitation from receiving a copy of the judgment after the expiry of the period of limitation. He could not receive a memorandum of appeal, but certainly could allow a defect in its presentation to be removed,
3. I set aside the order of the learned Sessions Judge and direct the appeal to be reheard after being restored to its original number. He shall accept the copy of judgment from the applicants. The applicants who are on bail, shall surrender themselves at once to undergo their sentences (and the learned Sessions Judge also shall issue non-bailable warrants for taking them in custody). They shall, be entitled, however, to apply afresh for an order suspending the execution of the sentence under Section 426, Cr. P. C.