Ghulam Qadri Mir vs State and Others

Y.P. Nargotra, J.—Short question arising for consideration in this revision petition is whether a criminal appeal can be disposed of on merits

in the absence of the appellant or his counsel.

The accused-petitioner was tried by the learned Judge Small Causes, Srinagar for commission of the offence u/s 304A, RPC and was convicted

and sentenced to undergo rigorous imprisonment of one year with a fine of rupees two thousand and in default of payment of find to undergo

further imprisonment for a period of six months.

Aggrieved by the conviction and sentence, the accused-petitioner preferred an appeal before the learned Additional Sessions Judge, Srinagar

who in the absence of the appellant, his counsel and without hearing them decided the appeal on merits and up-held the judgment of the trial court

by his judgment dated 6.5.1996.

Against the judgment of the appellate court, the accused-petitioner has come up in revision before this Court.

The identical question came up for consideration before a bench of this Court in case ""King Paul Singh v. State of J&K and Ors 1993 KLJ

Justice Khan (as his Lordship then was) observed as follows:

Section 423 Cr. P.C deals with powers of the Court in disposal of criminal appeals and reads thus:

(1) Powers of Appellate Court in disposing of appeal: The appellate court shall then send for the record of the case, if such record is not already in

court. After perusing such record and hearing the appellant of his pleader, if the appears, and the Public Prosecutor, if he appears, and, in case of

an appeal u/s 417, the accused, if he appears, the court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal.

A perusal of the provision would show that the appellate court's power to dispose of an appeal is not dependant on the appearance of appellant or

his counsel for that matter the Public Prosecutor. The words ""if he appears"" are very significant and suggest that appearance of appellant or his

counsel is their business and constitutes no hurdle in the way of disposal of appeal by the court. There is nothing in the provision to indicate that

appellant's absence disables the court or imposes any limitation on its power to decide the appeal on merits. If anything, Section 423 envisages a

green signal to the court to dispose of a criminal appeal without hearing the appellant, his counsel or the Public Prosecutor, the rational behind is

that administration of criminal justice cannot be allowed to be left to the mercy or convenience of the convict. There may be some exceptional

cases where a convict is taken unawares and hearing of the appeal behind his back causes grave prejudice to him. These may be no harm in

directing re-hearing in such cases.

This view is in accord with the ratio laid down in Shyam Deo Pandey and Others Vs. The State of Bihar, , the relevant portion whereof reads thus:

It is to be noted that if the appellant or his counsel or the Public Prosecutor or both, are not present, the appellate court has jurisdiction to

proceed with the disposal on merits. It is clear that the appeal must be considered and disposal of on merits irrespective of the fact whether the

appellant or his counsel or the Public Prosecutor is present or not. Even if the appeal is disposed of in their absence the decision must be after

consideration on merits.

What complicates matter is the contrary, though liberal, view taken by the Supreme Court in Ram Naresh Yadav's case AIR 1987 SC 1500 by

holding as under:

We are fully conscious of this dimension of the matter but in Criminal matters the convicts must be heard before their matter are decided on

merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter the Bar Counsel with this end in view. But

the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to

argue on behalf of the appellant.........

Both judgments of the court are co-equal benches and therefore, both cannot be said to be binding on the courts below. As such, a choice is

required to be made in the given situation: Though hard to make, it will always be in favour of the view which proceeds on logic, reasoning, better

rational and a correct appreciation of relevant provisions of law. Therefore, where two conflicting judgments are in operation, the case which lays

down the proposition more elaborately and correctly on fair construction and appreciation of relevant provision of law deserves to be followed. I

am fortified in this by a Full Bench judgment of Patna High Court Amar Singh Yadav and Another Vs. Shanti Devi and Others, Confronted with a

similar controversy. His Lordship S.S. Sandhawalia held:

Whether the judgment of equal Benches of the superior court are earlier or later, and whether the later one missed consideration of the earlier, are

matters which appear to me as hardly relevant and, in any case, not conclusive. When judgments of the superior courts are of co-equal Benches

and, therefore, a matching authority, then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere

fortuitous circumstances of the time and date on which they are rendered.

Left to my choice, I am more inclined to follow the ratio laid down in Shyam Pandey's case which proceeds on a fair interpretation of provisions of

Section 423 Cr. P.C. It is not understandable how this judgment has escaped notice in Ram Naresh Yadav's case which is later in point of time.

The judgment in Yadav's case does not make even a passing reference to Section 423. Therefore, when compared to Panday's case, it cannot be

said that it lays down the law on the point accurately elaborately.

Another aspect of the matter is that disposal of criminal matters has created to be a matter of priority in the present day judicial functioning.

Consequently the convicts have a flied day after getting their sentence suspended. In the course of time, they loose track of the proceedings and

contact with the counsel, and as and when the matter sees the light of the day in the hearing column of the cause list, parties are taken unawares for

want of notice. Therefore, the question that stares at face is whether a convict should be taken by surprise and his case decided on merit at his

back or should be allowed to bring the judicial process to a stand still. Therefore, even as Section 423 Cr. P.C, empowers the court to deal with

the appeal on merits in the absence of the convict or his counsel, it becomes necessary that either of the two must have a notice of the date of

hearing and it would matter little if the court taken some steps in this regard before proceeding in the matter on merits.

Summing up, I fell persuaded to hold that the court can dispose of a criminal appeal on merits even in the absence of the appellant, his counsel or

the Public Prosecutor, [provided they have notice of the date of hearing. If they fail to turn up despite notice, nothing shall prevent the court from

disposing of the appeal on merits.

I am in full agreement will the view expressed by his Lordship and similarly hold that a criminal court can dispose of a criminal appeal on merits

even in the absence of the appellant, his counsel or the Public Prosecutor provided they have notice of the date of hearing. If they fail to turn up

despite notice, nothing shall prevent the court from disposing of the appeal of merits"".

Being held so, now let us go to the validity of the impugned judgment of the appellate court.

Learned appellate court has given the following reasons for deciding the appeal on merits;

Though the appeal has been filed as far back as on 2.12.1988 but due the absence of the appellant as well as of his counsel, the appeal could not

be disposed of. In my opinion Court is not however helpless in such a situation that it has to wait indefinitely for the appellant-accused to turn up

before the court. If the appellant does not turn up before the Court, the Court u/s 425 of Cr. P.C. is fully justified in hearing and disposing of the

appeal in the absence of the appellant after going through the record itself with the assistance of the prosecution. I therefore, propose to hear arid

dispose of the appeal on merits in absence of the appellant, besides learned Public Prosecutor the court was also assisted by learned counsel Mr.

M.A. Dar in hearing the appeal. It may be mentioned here that the court has taken all possible steps and measures to procure the presence of the

appellant but with no success.

From the perusal of the interim orders passed in the case it transpires that on 29.12.1995 no one was present, so the notice was ordered to be

issued to the appellant and the case was adjourned to 18.2.1996. On that day, the appellant was absent, however the present of Public Prosecutor

and counsel for the prosecution has been recorded and the case was adjourned to 15.3.1996. The appeal could not be taken up for hearing on the

date fixed due to strike and was actually taken up on 2.4.1996 and the interim order passed on 2.4.1996 records that appellant was absent. Public

Prosecutor and counsel for the prosecution were present. They were heard and the case was posted for judgment for 6.5.1996, on which date

judgment impugned was announced, by which the appeal was decided on merits. From the perusal of these interim orders it is clearly indicated that

neither the appellant nor his counsel had any notice that appeal would be taken up for hearing on 2.4.1996, nor any such notice stood issued by

the appellate court to be appellant or his counsel. In such circumstances learned appellate court was not justified in disposing of the appeal on

merits. Therefore, the judgment of the appellate court cannot be sustained in law.

In view of the above discussion, the judgment of the appellate court dated 5.5.1996 is set aside and appeal is remitted back with a direction to

the appellate court to Re-hear the matter on merits and dispose it of in accordance with law after affording the appellant or his counsel and Public

Prosecutor, an opportunity of being heard. Record be returned along with a copy of this order. Petitioner-accused is directed to appear before the

learned Additional Sessions Judge, Srinagar on June 21, 2003.