Hazara Singh Hakim Singh Vs. the State

.....original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. order(1) this is a revision for jail and mr. punchi has appeared in support of it as amicus curiae. the only contention raised by the counsel is that there is no evidence with respect to the offence under s. 457, indian penal code. the conviction of the accused-petitioner under s. 380 read with s. 75, indian penal code, is based on the presumption which has been raised on account of his having been found in actual possession of stolen properties immediately after the occurrence. in my opinion, the learned counsel is right. where a person is found in possession of stolen goods soon after the theft, it may be presumed that he is either a thief or has received the goods knowing them to be stolen unless he can account for his possession, but there is no rule of law which permits from the possession of stolen goods, a presumption of an offence of lurking house-trespass by night, or house-breaking by might, as is contemplated by s. 457 of the indian penal code.(2)the courts below have therefore completely misdirected themselves in holding the accused to be also guilty of an offence under s. 457, indian penal code. i find that in the court of the learned sessions judge the accused was not represented. in such a case there is a heavy duty imposed both on the court and on the counsel for the state to see that the accused gets justice and he is not prejudiced merely because he has not been able to engage a counsel. the courts and the counsel for the state have a duty to advance the cause of justice and they must go into the matter a little more deeply because the responsibility is entirely theirs to see that no injustice is done to the accused before them. i need hardly repeat that the duty of the counsel for the state is not a secure a conviction at all costs, but to assist the court in correct and just decisions of cases. with these observations i allow the revision in part and set aside the conviction of the accused under s. 457, indian penal code. in all other respects.....