Ghan Shyam vs State of U.P.

Shri Kant Tripathi, J.—This petition u/s 482 of the Code of Criminal Procedure has been filed to quash the impugned order dated 5.9.2008, passed by the Additional Sessions Judge, Ambedkarnagar in Criminal Appeal No. 17 of 2007.

Heard learned Counsel for the applicant and the learned A.G.A. and perused the impugned order.

It appears that the applicant Ghan Shyam was convicted and sentenced u/s 7/16 of the Prevention of Food Adulteration Act by the Chief Judicial Magistrate, Ambedkarnagar vide the judgment and order dated 11.10.2007 in Criminal Case No. 340 of 1999. The applicant preferred a criminal appeal questioning the order of conviction and sentence but the learned Additional Sessions Judge, Ambedkarnagar instead of dismissing the appeal on merit, dismissed the same in default of the applicant on 5.9.2008. The dismissal order is being reproduced as follows:

Case called out. Appellant absent. Today case fixed for argument. Appellant neither present nor move an adjournment application. exemption application moved by Appellant but none is present to press, hence rejected. Call repeated It is 3.30 p.m. Order Appeal is dismissed on default of Appellant. sent back to concerned lower court within 15 days to comply with the sentence order against accused. File be consigned.

Dismissal of a criminal appeal in default of the Appellant is not recognized in the criminal jurisprudence. If any criminal appeal is entertained for hearing and is not dismissed summarily u/s 364 of the Code of Criminal Procedure (in short "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 cannot dismiss the appeal in default of the Appellant and 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 v. State of Bihar AIR 1987 SC 1500, 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 simplicitor. 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 Sections 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, which 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 aforesaid reasons, the impugned dismissal order has not only occasioned in causing miscarriage of justice but also amounts to abuse of the process of the Court, therefore, it seems to be just and expedient to exercise inherent power u/s 482 of the Code and to quash the dismissal order dated 5.9.2008.

The petition is therefore allowed and the order dated 5.9.2008 is set aside.

The learned Sessions Judge, Ambedkarnagar is directed to hear and decide the Criminal Appeal No. 17 of 2007 Ghan Shyam v. State of U. P., himself on merits.

The learned Counsel for the applicant submitted that the applicant is in jail on the basis of the warrant issued by the Chief Judicial Magistrate, Ambedkarnagar. If it is so, the applicant may move a bail application before the Sessions Judge, Ambedkarnagar and the same shall be considered and disposed of expeditiously, if possible on the same day.

Before parting with the judgment, I would like to add herewith that the learned Additional Sessions Judge, Ambedkarnagar has committed callous carelessness in dismissing the appeal in the absence of the Appellant. It appears that he had no legal knowledge as to how the criminal appeals are heard and disposed of. In this view of the matter, the Registrar General of the Court is directed to send a copy of this judgment to the concerned officer for his guidance and he may be advised to be careful in future in considering and disposing of criminal appeals.