In Re: Seperumal Udayan and ors.

criminal procedure code (act v of 1898), sections 435 and 439 - appeal--disposal on the evidence of prosecution only--procedure. - ordermiller, j.1. i think i must ask the 1st class magistrate to re-hoar this appeal. a large number of grounds of appeal are entered in the petition of appeal to him, and probably many of them were not presented; but some of them must have been presented. the magistrate has dealt with the prosecution evidence in a very general and summary way and has not even alluded to the evidence for the defence or the nature of the defence; and i infer that he has not given the evidence the consideration which he was bound to give it. without going so far as to say with the learned judges in jamait mullick v. emperor 35 c. 138 : 12 c.w.n. 134 : 6 cri. l.j. 427 that the judgment of the appellate court should stand by itself, or that it should be unnecessary to refer to the judgment of the 1st court, it is clear that if the appellate magistrate gives a judgment which makes it appear probable that he has not fully heard and considered the appeal, his disposal of the appeal ought not to be allowed to stand. i set aside his order confirming the sentence and i direct him to re-hear the appeal and dispose of it according to law. the accused may remain on the same bail, pending the rehearing of the appeal.