Chandan vs State of U.P.

Shri Kant Tripathi, J.—Heard learned counsel for the applicant and learned AGA for the State and perused the record. This is a petition u/s 482 of the Code of Criminal Procedure for quashing the order dated 3.11.2010, rendered by Additional Sessions Judge, Court No. 9, Mathura, in Criminal Appeal No. 34 of 2006, Chandan v. State.

A perusal of the record reveals that the Additional Chief Judicial Magistrate, Court No. 3, Mathura convicted and sentenced the appellant Chandan under Sections 323 and 325 IPC, vide his judgment and order dated 16.2.2006 rendered in the Criminal Case No. 759 of 2005, State v. Chandan. The learned Additional Chief Judicial Magistrate sentenced the appellant Chandan u/s 325 IPC to undergo simple imprisonment of two years and to pay a fine of Rs. two thousand and in default of payment of fine to undergo additional imprisonment of six months. He further sentenced the appellant u/s 323 IPC to undergo simple imprisonment of six months and to pay a fine of Rs. five thousand and in default of payment of fine to undergo additional imprisonment of three months. Against the judgment and order rendered by the Additional Chief Judicial Magistrate, the petitioner preferred the aforesaid criminal appeal before the Sessions Judge, Mathura, which was ultimately transferred to the Additional Sessions Judge, Court No. 9, Mathura. The appeal was taken up by Additional Sessions Judge on 3.11.2010, but on that date none was present for the petitioner. Consequently, the learned appellate Court, after hearing the Assistant District Government Counsel (Criminal) and perusing the record, held that there was no evidence on record to show that the petitioner was physically handicapped. The learned Additional Sessions Judge further found that the judgment and order rendered by the Magistrate was based on evidence on record and it was not proper to reject the testimonies of the witnesses only on the ground that they were interested witnesses.

The order passed by the Additional Sessions Judge is reproduced below as follows:

The aforesaid order is very cryptic. It does not contain concise facts of the case and the evidences adduced by the parties during the trial. The learned appellate Court has not indicated the points involved in the appeal for decision nor recorded any finding in regard to the points so involved. The appellate Court has merely passed a sweeping remark that the statements of the witnesses were not liable to be discarded only on the ground that they were interested witnesses. Section 354 of the Code provides for the language and contents of judgments. Clause (b) of sub-section (1) provides that every judgment referred to in Section 353 of the Code shall contain the point or points for determination, the decision thereon and the reasons for the decision, unless otherwise required by the Code, therefore, the judgment to be delivered in a case must indicate point or points involved or raised in the case for determination and also the decision of the Court with reasons on such points. It may not be out of context to mention that according to Section 387 of the Code the rules contained in Chapter XXVII (Sections 353 to 365) are also applicable so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate, therefore, the judgment rendered by the subordinate appellate Courts must indicate point or points for determination and decision thereon with reasons. As already observed, the aforesaid order passed by the learned appellate Court has neither indicated the points raised or involved in the appeal for decision nor has decided the appeal point-wise with reasons.

In view of what has been stated above, the appellate Court''s order cannot be regarded as a judgment within the four corners of law. Disposal of appeal does not mean disposal for statistical purposes but it must be effective and reasoned so as to achieve the object of a fair trial. Therefore, the appellate Court has to adopt a judicial approach while deciding an appeal instead of making a sweeping observation that it has perused the record and evidence, and the finding of the trial Court is correct. A criminal appeal is nothing except a part of the Criminal trial, therefore, it is the duty of the appellate Court to make judicial examination of the issues involved in the case and to arrive at a just conclusion on the basis of the materials available on record. In view of the fact that the object of a criminal trial is to dispense justice and to convict the guilty and protect the innocent, the trial should be for the search of truth and not a mere formality. Therefore, the disposal of appeal by the appellate Court on merits was not a mere formality by drafting few lines and thereby deciding the appeal. Moreover, the appellate Court is not only required to examine the merits of the evidence to find out as to whether the charges are proved beyond all reasonable doubts against the appellant but also to find out whether the inflicted punishment was just, fair and commensurate with the nature of crime. But in this case, the learned appellate Court did not consider the question of sentence and dismissed the appeal without doing so.

It may not be out of context to mention that if any Criminal Appeal is entertained for hearing and is not dismissed summarily u/s 364 of the Code at the stage of admission, the appellate Court has to follow the procedure prescribed under Sections 385 and 386 of the Code for hearing and disposal of the appeal. An opportunity of hearing to the appellant as well as to the State is necessary. In case the appellant, despite the opportunity given, fails to appear on the date fixed for hearing, the appellate Court is bound to peruse the record and the judgment and order appealed against on merit and pass appropriate order on the basis of the materials on record. In appropriate cases the appellate Court may consider to appoint an Amicus Curiae to represent the appellant and to assist the Court, specially when, the appellant is in jail and is not represented by an Advocate.

The aforesaid proposition has been propounded by the Apex Court in various decisions and some of them are Bani Singh and ohters Vs. State of U.P., and Dharam Pal and Others Vs. State of U.P., .

In Bani Singh''s case (supra), a three Judge Bench of the Apex Court while overruling the case of Ram Naresh Yadav and Others Vs. State of Bihar, , laid down the following principles:

We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo''s case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.

In Dharampal''s case (supra), the Apex Court relied on the verdict given in Bani Singh''s case (Supra) and propounded the following principles:

When the accused does not appear, it is the bounden duty of the High Court to look into the records and the other materials on record, including the judgment of the trial Court and thereafter, decide the appeal on merits which would be due compliance with Ss. 385 and 386 in disposing of criminal appeals. The Appellate Court must dispose of the judgment of the trial Court even if the appellant or his counsel was not present at the time of hearing of the appeal.

The instant petition has been filed u/s 482 of the Code Section 482 of the Code has conferred a very wide power on the High Court which should be exercised in appropriate cases to give effect to an order under the Code or to prevent abuse of the process of the Court or to otherwise secure the ends of justice. The inherent power u/s 482 has not limits and it is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exists. In view of the fact that the appellate Court has dismissed the applicants'' appeal and there is no provision of second appeal and the impugned order has resulted in causing grave injustice to the applicants, it would be expedient to exercise inherent power u/s 482 of the Code for quashing the impugned order and securing the ends of justice.

The petition is therefore allowed. The impugned order dated 3.11.2010 is set aside.

The learned Additional Sessions Judge, Court No. 9, Mathura is directed to rehear the appeal in the light of the observations made hereinbefore and render a fresh judgment in accordance with law. Let a copy of this judgment be transmitted to the learned Additional Sessions Judge for compliance.