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CASE NO.: Appeal (civil)  7376 of 2003

PETITIONER: Bolin Chetia

RESPONDENT: Jogadish Bhuyan & Ors.

DATE OF JUDGMENT: 11/03/2005

BENCH: CJI R.C. Lahoti & G.P. Mathur

JUDGMENT: J U D G M E N T

O R D E R

R.C. Lahoti, CJI

       In an appeal under Section 116A of the Representation of  the People Act, 1951 merely on its being filed, should the  respondent be necessarily and in routine put on notice, forgoing  the application of judicial mind to the merits of appeal, at that  stage?  Does this Court not have power to summarily throw out  an appeal howsoever worthless it may be?  These are the  questions which have arisen for decision; thanks to the  submission made with vehemence by the learned counsel for  appellant.

       The appellant was a candidate at the legislative assembly  elections in the State of Assam.  He lost in the election, as also  in the High Court where an election petition filed by him putting  in issue the election of the returned candidate has been directed  to be dismissed on trial.  He has filed the present appeal under  Section 116A of the Representation of the People Act, 1951  (hereinafter ’the Act’, for short).

       When the appeal was placed before the Court, we felt  inclined to hear the learned counsel for the appellant on the  question of admission, that is, whether the appeal deserved to  be admitted for bi-parte hearing.  The learned counsel for the  appellant resisted the move of the Court and submitted that this  appeal is a statutory first appeal and, therefore, it should be  admitted for hearing bi-parte as of right and a notice to  respondents must issue as a matter of course.  In fact, the  learned counsel for the appellant went on to the extent of  submitting that the appeal need not have been listed before the  Court for the purpose of hearing on admission; rather the  Registry itself should have directed notice to be issued to the  respondents and placed the appeal only soliciting directions in  the matter of printing of the paper books, filing of documents,  etc.  In other words, the learned counsel for the appellant  submitted that the only directions which the Court can make at  this stage are those which may be necessary for preparing the  records to enable a final hearing and no orders are needed for  ’admitting’ the appeal.

       We have heard the learned counsel for the appellant, as  also the learned counsel for the respondent (successful  candidate) present on caveat.   

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       The relevant statutory provisions contained in the Act are:- "116A. Appeals to Supreme Court \026 (1)  Notwithstanding anything contained in any  other law for the time being in force, an appeal  shall lie to the Supreme Court on any question  (whether of law or fact) from every order  made by a High Court under section 98 or  section 99.

(2) Every appeal under this Chapter shall be  preferred within a period of thirty days from  the date of the order of the High Court under  section 98 or section 99:

Provided that the Supreme Court may  entertain an appeal after the expiry of the said  period of thirty days if it is satisfied that the  appellant had sufficient cause for not  preferring the appeal within such period.

116C. Procedure in appeal \026 (1) Subject to  the provisions of this Act and of the rules, if  any, made thereunder, every appeal shall be  heard and determined by the Supreme Court  as nearly as may be in accordance with the  procedure applicable to the hearing and  determination of an appeal from any final order  passed by a High Court in the exercise of its  original civil jurisdiction; and all the provisions  of the Code of Civil Procedure, 1908 (5 of  1908) and the Rules of the Court (including  provisions as to the furnishing of security and  the execution of any order of the Court) shall,  so far as may be, apply in relation to such  appeal."

xxx                xxx                xxx                xxx"

       A bare reading of the above said provisions shows that  against every order passed by a High Court under Section 98 or  Section 99 an appeal shall lie to the Supreme Court.  The  hearing is open on any question of law and fact, both.  Every  such appeal shall be "heard and determined", as nearly as may  be, in accordance with the procedure applicable to the first  appeals preferred against any final order passed by a High Court  in exercise of its original civil jurisdiction.  The provisions of the  Code of Civil Procedure shall, in case of inconsistency, give way  to the provisions contained in the Act and the Rules made  thereunder.   The Supreme Court Rules additionally apply in  relation to such appeals.

       The Supreme Court Rules, 1966 framed in exercise of the  powers conferred by Article 145 of the Constitution do not  provide for the procedure applicable to such appeals.  In a book  ’Supreme Court Practice and Procedure’ by B.R. Aggarwal, we  find the following passage (at page 138):-

"No separate rules have been framed by  the Supreme Court for filing and hearing  appeals under the Representation of the People  Act, 1951.  The procedure in election appeals

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will be the same as in the case of civil appeals.

As soon as election appeals are filed,  they are numbered and placed before the  Court for preliminary directions. Election  Appeals are generally treated as expedited  appeals.  The Court gives direction regarding  preparation of the appeal paper-book.  It is  generally directed that as soon as the record is  ready, the appeals should be placed before the  Court for hearing.  The rest of the procedure is  the same as in the other ordinary appeals.  A  court-fee of Rs 250 is to be paid on the petition  of appeal."  

       The Registry has also brought to our notice that all  statutory appeals, including the appeals under Section 116A of  the Act, are placed for hearing on admission before the Court,  unless otherwise specifically provided by the Rules.  It is also  pointed out that there have been several cases in the past where  such appeals have been dismissed at the threshold as not  admitted and without noticing the respondents.

       The word ’appeal’ is not found defined either in the Act or  in the Code of Civil Procedure, 1908 (hereinafter ’the Code’, for  short).  In its natural and ordinary meaning an appeal is a  remedy by which a cause determined by an inferior forum is  subjected before a superior forum for the purpose of testing the  correctness of the decision given by the inferior forum.  The right  of appeal is a substantive and valuable right of any appellant  who is normally a person aggrieved by the impugned decision.   According to sub-rule (1) of Rule 11 of Order 41 of the Code, the  appellate court may, after sending for the record, if it thinks fit  to do so and after appointing a day for hearing the appellant,  dismiss the appeal without sending notice to the court from  whose decree the appeal is preferred and without serving notice  on the respondent.  Though the court does not assign a  particular name to the proceedings held on such a date of  hearing or such a step in the procedure of hearing the appeal, in  judicial circles, it is generally called a ’motion hearing’ or  ’hearing on admission’ or ’preliminary hearing’.  Ordinarily a  court of appeal, and specially a court of first appeal, would prefer  to have the records of the lower court before it.  But it is not  always necessary.  An appeal may raise a question of law alone  and the appellate court may form an opinion at the preliminary  hearing whether the appeal deserves to be heard bi-parte on  that question of law without sending for the record of the lower  court.  A first appeal is generally open for hearing on questions  of law and fact, both, and the appellate court possesses power to  make all such orders as the original court could have made.  The  discretion conferred on the appellate court to dismiss the appeal  at its threshold is a judicial discretion and cannot be exercised  arbitrarily or by whim or fancy.  The appellate courts exercise  the discretion in favour of summary dismissal sparingly and only  by way of exception. However, that does not tantamount to  saying that the appellate court does not possess the power to  dismiss an appeal summarily and at the threshold. Such power  to summarily dismiss can be exercised, depending on the facts  and circumstances of a given case, before issuing notice to the  respondent and even before sending for the record of the inferior  forum.  Similarly, the appellate court possesses power to admit  or reject the appeal in its entirety, as also, to admit the appeal in  part in regard to a particular part of decree and dismiss it in part  if the two parts are severable.  Once the appeal is admitted, the  appellate court may not, except in very exceptional cases,

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restrict any grounds on which the appeal should be heard.   Where the appellate court exercises its discretion in favour of  dismissing the first appeal without issuance of notice to the  respondent, it is expected that the reasons for doing so are  placed on record.   Such recording of reasons is necessary where  the order of summary dismissal is open to challenge before a  superior forum.  This rule of practice does not apply to the  Supreme Court as it is the final Court and as no appeals lie  against the decisions of this Court, including a decision by which  an appeal is summarily dismissed.

       It will be useful to make a reference to a few decided cases  spelling out the judicial opinion relevant to the issue at hand.                  In Umakant Vishnu Junanarkar Vs. Pramilabai & Anr.  (1973) 1 SCC 152, dealing with the power of the first appellate  court to summarily dismiss an appeal, the Supreme Court  reiterated its earlier view taken in Mahadev Tukaram Vetale &  Ors. Vs. Smt. Sugandha & Anr. (1973) 3 SCC 746 and held  that an appeal raising triable issues should not be summarily  dismissed.  Nevertheless, the availability of such power was not  denied.  The Court noted the query ___ whether in any  circumstance, a High Court can dismiss a first appeal summarily  without giving reasons, and observed that in the particular  circumstances of that case, it was not necessary to consider such  larger question.  In Shaharulla Mondal Vs. Bangoo Mondal &  Ors. 13 C.W.N. 143, the Division Bench emphasized the need for  assigning reasons while summarily dismissing an appeal.  An  appellate court summarily dismissing an appeal, is duty-bound  to exercise an independent judgment on the facts of the case  and to express (howsoever brief it may be) the result of his  investigation in his judgment.   

       In Jagdis Chandra Das Vs. Chandra Mohan Das AIR  1920 Patna 509, the Division Bench was dealing with a letters  patent appeal.  The rules of the Court made a provision for the  Registrar to satisfy himself that the appeal was within time,  sufficiently stamped and complied with the rules, and if so, then  to admit the first appeal and issue notice to the respondent and  place the appeal before the bench to which such appeals were  assigned.  Yet, the Court recognized the power of the Bench to  call upon the appellant or his pleader, without serving notice on  the respondent, if any case was made out for issuing notice to  the respondent.  It was held that the Court could dismiss the  letters patent appeal without calling upon the respondent acting  exactly as in cases under Order XLI Rule 11.  If the appeal is  admitted and the Court, having heard the appellant, desires to  hear the respondent before finally disposing of the appeal, it  may do so but if the appeal is dismissed, the respondent need  not be noticed and heard.   

       In S.P. Khanna Vs. S.N. Ghosh 1976 Tax L.R. 1740,  Section 483 of the Companies Act, 1956 came up for the  consideration of the Division Bench of the Bombay High Court.   Section 483 provides that the appeals from any order or decision  in the matter of the winding up of a company by the Court, shall  ’lie’ to the same court to which, in the same manner in which,  and subject to the same conditions under which, appeals lie from  any order or decision of the Court in cases within its ordinary  jurisdiction. The use of the word ’shall’ makes it clear that the  right of appeal conferred by the provision is as of right.  But, the  Division Bench held that an appellate court under Section 483  has authority to hear the appellant on the merits at the  admission stage and decide whether the controversy raised in  appeal has any prima facie substance or not.  The provision does

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not put any fetters on the power of the Court to reject worthless  appeals at the initial or admission stage and it could not be said  that mere institution of the appeal would tantamount to its  admission and must go for final hearing.  The provision provides  clearly for a remedy and is not intended to limit or control the  exercise of the powers of the Court, and hence, appeal under  Section 483 has to be treated and proceeded with like any other  civil appeal.  The power of the appellate court exercisable at the  stage of admission of the appeal to dismiss a non-deserving  appeal, not fit one to go for final hearing, is not taken away.   

Reference was made by the Bombay High Court to M/s.  Golcha Investment (P) Ltd. Vs. Shanti Chandra Bafna  (1970) 3 SCC 65, wherein while interpreting Chapter XLII of the  Bombay High Court Rules (Rules 965, 966, 966A thereof), this  Court has observed that such of the appeals as are not required  to be placed for admission are entitled to be admitted as a  matter of course.  The decision was explained by the Division  Bench of the Bombay High Court.  We are inclined to extract and  reproduce the following passages from the judgment of the  Bombay High Court in S.P. Khanna’s case (supra) :

"In the constitution of such appeal and its  procedure, the stage of admission, like the one  of final hearing after issue of notice, appears to  us as inherent.  Matters are placed for  admission with a view to enable the Court to  apply its mind to controversy and to find out  whether the order questioned calls for  reconsideration by the higher Court.  This is  usually done by giving hearing to the party- appellant.  It is implicit that at that stage the  Court may adjudicate by finding against the  petitioning appellant and upholding the order  impugned.  Such adjudication at the stage of  admission of appeal is part of the jurisdiction  of the appellate Court and we have doubt  whether that jurisdiction could be affected if it  is explicitly granted by the statute by framing a  rule of procedure.  Placing the matters for  admission before the Court are not mere  matters of procedure but also involve exercise  of judicial authority by the appellate Court.   Normally, if the authority is conferred by the  statute, we would be loathe to hold that its  effectiveness would stand curtailed by any  procedural rule disabling the Court, of its  power of hearing the appeal and pronouncing  at the stage of admission about the merits of  the appeal by finding out whether the same  deserves further consideration by the Court.

       All this process involved in "admission"  has clear juridical efficacy and recognition.  It  subserves the dynamics to have a speedy and  sure disposal of matters brought before the  higher forums in the judicial hierarchy.  The  Code of Civil Procedure permits expressly the  rejection of appeals at admission stage by  enacting provision like Order XLI, R. 11, C.P.  Code.  Even without such a provision, we  would think that it would be inbuilt (sic)  (inbred) in the appellate jurisdiction enabling  the Court to hear the appellant as to the  matter brought before it and reject the appeal

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which may prima facie have no merit or may  suffer from the defects of untenability,  limitation as well of incompetency.  This stage,  which is treated as admission stage of an  appeal, appears to protect the litigation from  waste of costs as well of public and private  time.  That can effectively check meritless and  vexatious litigations.  All these considerations  must be kept in view while considering the  form of appeal provided by statute.  Provisions  of Section 483 and the appeal thereunder  cannot be treated as an exception and as  erasing out all these juridical as well as  judicious considerations inherent in the  admission stage of an appeal.  We can well  observe that the stage of admission of appeals  in Company matters is neither superfluous nor  unnecessary.  In fact that posits serious  exercise of appellate authority full of judicial  consequences.  Unless there is something  expressly dispensing with that stage, it would  be neither just nor proper to hold that in the  appeals under Section 483 there cannot be a  hearing at the admission stage.  We have  already indicated that what was observed in  M/s. Golcha’s case AIR 1970 SC 1350 (supra)  was with reference to the rule of this Court and  nothing more.  That observation cannot further  be strained or logically extended as laying  down that in an appeal under Section 483 of  the Act the appellate Court is powerless at the  stage of admission to find out the merit of the  appeal or is disabled from rejecting it though it  may be worthless.  It is well settled that  possible logical extensions from the ratio of a  judgment surely are not part of the ratio itself  and it is hazardous to apply precedents in that  manner."

       We agree with this statement of law.

       In Kiranmal Zumerlal Borana Marwadi v. Dnyanoba  Bajirao Khot and others (1983) 4 SCC 223, this Court has not  countenanced the practice of the High Court dismissing the  appeal by one word order ’dismissed’ if numerous and serious  questions, both of law and facts were raised in the appeal.   

       It is thus clear that the appellate courts including the High  Court do have power to dismiss an appeal summarily.  Such  power is inherent in appellate jurisdiction.  The power to dismiss  summarily is available to be exercised in regard to first appeals  subject to the caution that such power will be exercised by way  of exception and if only the first appellate court is convinced that  the appeal is so worthless, raising no arguable question of fact or  of law, as it would be a sheer wastage of time and money for the  respondent being called upon to appear, and would also be an  exercise in futility for the Court.  The first appellate court  exercising power to dismiss the appeals summarily ought to pass  a speaking order making it precise that it did go into the pleas \026  of fact and/or law \026 sought to be urged before it and upon  deliberating on them found them to be devoid of any merit or  substance and giving brief reasons.  This is necessary to satisfy  any superior jurisdiction to whom the aggrieved appellant may  approach that the power to summarily dismiss the appeal was  exercised judicially and consciously by way of an exception.

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       Shri S.K. Jain, learned counsel for the appellant has placed  forceful reliance on rule 5A of Order XV of the Supreme Court  Rules, 1966.  The rule 5A catalogues three types of appeals  which "on being registered shall be put up for hearing ex-parte  before the Court which may either dismiss it summarily or direct  issue of notice\005\005". He submitted that the rule makes a specific  provision for the listing of only certain categories of appeals for  preliminary hearing before the Court and in that list the appeal  under Section 116A of the Act is not mentioned and therefore,  the applicability of M/s. Golcha Investments (P) Ltd. case  (supra) is squarely attracted which holds that the appeals, other  than those mentioned as required to be listed for admission,  cannot be so listed.  In our opinion, the submission suffers from  a fallacy.  Rule 5A relied on by Shri Jain is not applicable here as  it finds mention in Part II, Order XV of the Rules, the title  whereof reads as under: "PART II APPELLATE JURISDICTION (A)     Civil Appeals ORDER XV APPEALS ON CERTIFICATE BY HIGH COURT"

       This rule 5A has been inserted in Part II of Order XV  dealing with appeals on certificate by High Court.  Rule 5A  cannot be interpreted as dealing with all types of statutory  appeals filed before this Court.  On the contrary, we find that  there are separate provisions contained in the Supreme Court  Rules dealing with statutory appeals viz. Order XX-A \026 Appeals  under Section 55 of the Monopolies and Restrictive Trade  Practices Act, 1969 (54 of 1969), Order XX-B \026 Appeals under  clause (b) of Section 130-E of the Customs Act, 1962 (52 of  1962) and Section 35-L of the Central Excise and Salt Act, 1944  (1 of 1944), Order XX-C \026 Appeals under Section 14 of the  Terrorist Affected Areas (Special Courts) Act, 1984, Order XX-D  \026 Appeals under Section 16 of the Terrorist and Disruptive  Activities (Prevention) Act, 1985, Order XX-E \026 Appeals under  Section 17 of the Terrorist and Disruptive Activities (Prevention)  Act, 1987 and Order XX-F \026 Appeals under Section 23 of the  Consumer Protection Act, 1986 (68 of 1986).  It is noticeable  that the appeals dealt with by Order XX-A, XX-B and XX-F are  required, on being registered, to be listed before the Court for  hearing ex-parte whereupon the appeal can be dismissed  summarily.  So is the case of the special leave petitions including  those in criminal proceedings and criminal appeals.  In Chapters  XX-C, XX-D and XX-E, there is a specific provision for the  petition of appeal being registered and numbered as soon as  found in order whereafter the Registry itself shall issue notice of  lodgment of appeal to the respondents. If only Rules had been  framed governing the procedure for hearing of appeals under  Section 116A of the Act, the Court could have made a specific  provision for either the Registry issuing notice of lodgment of  appeal to the respondents without hearing ex-parte or for the  appeal being placed for preliminary hearing.  In M/s. Golcha  Investments (P) Ltd. case (supra), the observations contained  in para 7 are based on the inference drawn by this Court on  reading of the Bombay High Court Rules that excepting the  appeals which were specifically provided for being placed for  admission in the Court, others were not to be placed for  admission.  The submission made by the learned counsel for the  appellant has, therefore, no merit.

       It was next submitted that vires of Order XXI Rule 15(1)(c)  of the Supreme Court Rules and also Section 384 of the Criminal  Procedure Code, 1973 were put in issue in Sita Ram and

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others Vs. State of Uttar Pradesh (1979) 2 SCC 656. The  Court upheld the constitutional validity of the impugned  provisions and observed that it was reasonable to hold that  before hearing the appeal under Rule 15(1)(c) of Order XXI,  ordinarily the records are sent for.  Here again, it is clear that  the Court was dealing with criminal appeals and in that context  made the observation that a single right of appeal is more or  less a universal requirement of the guarantee of life and liberty  rooted in the Constitution that men are fallible and so in such  cases, a full dressed hearing of an appeal was an integral part of  fundamental fairness or procedure.  Therefore, the Court held  that (i) under the said Rule 15(1)(c), ordinarily the records are  sent for and are available; (ii) in the common run of cases, the  Court must issue notice to the opposite party and afford a  hearing in the presence of both and with the records on hand;  (iii) reasons be recorded in the ultimate order.  However, the  Court has also held that every right of appeal does not carry with  it all the right of getting the record, hearing both sides and  giving full reasons for decision.  A few illustrative cases to which  ex-parte summary procedure will still apply are : "Where the  only ground urged is a point of law which has been squarely  covered by a ruling of this Court to keep the appeal lingering  longer is survival after death.  Where the accused has pleaded  guilty of murder and the High Court, on the evidence, is satisfied  with the pleas and has awarded the lesser penalty, a mere  appeal ex misericordia is an exercise in futility.  Where a minor  procedural irregularity, clearly curable under the Code, is all that  the appellant has to urge, the full panoply of an appellate  bearing is an act of supererogation.  Where the grounds, taken  at their face value, are frivolous, vexatious, malicious, wholly  dilatory or blatantly mendacious, the prolongation of an appeal is  a premium on abuse of the process of court." Krishna Iyer, J  speaking for the Court said that the preceding list was not  exhaustive.  ’May be other cases can be conceived of’, but the  illustrations only indicate ’the functional relevance of Order XXI,  Rule 15(1)(c)’. The distinction between an appeal as of right and  by leave was so formulated : in former case, the rule is \026 ’notice,  records and reasons’ but the exception is (and this exception  does exist) ’preliminary hearing on all such materials as may be  placed by the appellant and brief grounds for dismissal’.  This  exceptional category occurs where, in all conscience, there is no  point at all.  In cases of real doubt the benefit of doubt goes to  the appellant and notice goes to the adversary \026 even if the  chances of allowance of the appeal be not bright (para 55).    This Court held that a provision in the Rules dispensing with the  need of listing for preliminary hearing "enables, not obligates.  It  operates in certain situations, not in every appeal.  It merely  removes an apprehended disability of the court in summarily  dismissing a glaring case where its compulsive continuance,  dragging the opposite party, calling up prolix records and  expanding on the reasons for the decision, will stall the work of  the court (which is an institutional injury to social justice) with  no gain to anyone, including the appellant to keep whom in  agonising suspense for long is itself an injustice." (para 49).  In  case of appeal by leave, the discretion of Court, judicially  exerciseable, comes into play.  

       Suffice it to observe that Sitaram & Ors. case itself  deprives the submission made by Shri S.K. Jain, the learned  counsel for the appellant, of all its force and charm.

       The power to summarily dismiss a first appeal, even if the  appeal is statutory and filed as of right must be held to be  inherent and so vesting in this Court as one of necessity.  The  Constitution Bench decision of this Court in Union of India and

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Another Vs. Raghubir Singh (Dead) by LRs. etc. (1989) 2  SCC 754 is, in this context, quite instructive.  Chief Justice R.S.  Pathak speaking for the Court noticed the volume of work  demanding the attention of the Supreme Court of India which  made it necessary as a general rule of practice and convenience  for the Court to sit in divisions rather than the Court as a whole  in the interest of promoting certainty and consistency in judicial  decisions.  The volume of work has gradually increased.  It is the  justice oriented approach of this Court, developed by tradition  and convention and in its craving to come up to the expectations  of ’We, the people of India’ that the Court has at times exercised  its jurisdiction for redeeming injustice even in individual cases  though the Court was expected by the Constitution makers to be  a federal court concentrating only on resolution of constitutional  issues.  This has resulted in adding to its arrears of cases in spite  of ceaselessly working for deciding the cases, as fast as it can,  and carefully avoiding the two extremes, namely ’justice  delayed’ and ’justice hurried’.  At times, the Court has been  criticized for being too liberal in entertaining the cases and  adding to the pendency of dockets before it.  It is, therefore, all  the more necessary that worthless cases, wholly devoid of any  merit, ought to be checked at the entry point itself.  Litigation is  a costly affair.  In an appeal, where even in the absence of the  opponent, the appellant fails to convince the Court that any  arguable question, either of fact or of law, is involved in the  case, we fail to understand how the appellant can still urge that  the respondent should be noticed to appear before this Court  and incur huge expenditure in terms of money, time and energy  and add to the number of pending matters ___ an addition, which  on appearance of the respondent, would be sure to be simply  struck down.

       In Surinder Singh Vs. Hardial Singh and others (1985)  1 SCC 91, it has been held that an appeal to this Court under  Section 116A of the Act, read with Section 116C, has to be  treated as a civil appeal and the jurisdiction to be exercised is as  extensive as in the case of an appeal from a matter disposed of  in exercise of original civil jurisdiction of the High Court.  In an  appeal laid before this Court, whether under any statute  conferring a right of appeal or as a result of grant of leave under  Article 136 of the Constitution what opens up to be exercised is  the normal civil appellate jurisdiction of the Court.  These  observations were made in the context that this Court would not  ordinarily interfere with the findings of facts reached by the trial  judge.  Ordinarily a finding reached on assessment of evidence,  particularly when it is oral, would not be interfered with in  appeal; though on being satisfied of a wrong approach of the  trial court or injustice shown to have been done, this Court  would not only have power, rather it would be its obligation, to  rectify the mistake and dispense justice.   We are, therefore, clearly of the opinion that though an  appeal under Section 116A of the Act is preferred as of right, yet  the inherent power of this Court to summarily dismiss the appeal  at the admission stage is not taken away.  We hasten to add that  such power would be exercised only by way of exception such  as, on the Court feeling convinced that the appeal does not raise  any such question of fact or law as would persuade this Court to  put the respondent on notice before hearing.

       The submission forcefully urged by the learned counsel for  the appellant is rejected.  Let the appeal be placed for  preliminary hearing (i.e. hearing on admission) before the Court.