Harpal Singh vs Harjinder Kaur alias Rajinder Kaur

V.S. Aggarwal, J.

386.Powers of the Appellate Court After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court, may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

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The above quoted provisions of Section 386 of the Code of Criminal Procedure establish without any pale of controversy that before an appeal can be decided by the Appellate Court, the perusal of the record and hearing of the Appellant or his Pleader if he appears is sinequanon. This had been considered by the Supreme Court in the well known decision of Shyam Deo Pandey and others v. State of Bihar, AIR 1971 SC 1606. In paragraph 20 of the judgment, the Supreme Court while considering the appeal that had been dismissed observed to the following effect :

"It is not necessary to deal exhaustively with the connotation of the expression ''after perusing such record'' occurring in Section 433(1). That will depend upon the nature of the order or judgment appealed against as well as the points or point that are taken before the Appellate Court. But one thing is clear. There must be a clear indication in the judgment or order of the Appellate Court that it has applied its judicial mind to the particular appeal with which it was dealing. Such an indication will be available when the Appellate Court has considered the material on record, which means not only the judgment and petition of appeal, but also the other relevant materials. The Appellate Court is bound to have looked into the judgment of the lower court appealed against. The petition of appeal must have also been looked into to know the nature of the attack that is made against the judgment. There will be other materials on record and they will have to be perused by the Appellate Court, the nature of such perusal to be indicated in the Appellate Judgment may also differ under different circumstances."

In other words, the requirement regarding perusal of the record and hearing the appellant or his counsel is mandatory. This is subject to the condition that he should appear on the date fixed. This is the short question in the facts of the present case as to whether the order passed by the learned Additional Sessions Judge, Ludhiana, can be sustained or not. Few facts would make the position clear.

Petitioner had been held guilty by the learned Judicial Magistrate, Ludhiana for the offence punishable under Section 494 Indian Penal Code and was subsequently sentenced on 20.3.1990. Aggrieved by the order passed by the learned Judicial Magistrate, the petitioner had preferred an appeal with the court of Sessions. On 21.5.1991, the petitioner appeared while counsel for respondent and the respondent were present. Counsel for the petitioner was not present, the learned Additional Sessions Judge there upon passed the following order :

"Harpal Singh, appellant has preferred this appeal against judgment/order dated 20.3.1990 of Shri S.K. Sharma, Judicial Magistrate 1st Class, Ludhiana, whereby he has been convicted under Section 494 India Penal Code and has been sentenced to undergo RI for 11/2 years and to pay a fine of Rs. 2,000/ or in default of payment of fine to suffer further RI for six months. Appellant''s counsel Shri A.K. Bector has not put in appearance despite several calls and it is now 1 p.m. This appeal is, therefore dismissed, as not prosecuted."

In this process the appeal was dismissed for nonprosecution.

Learned counsel for the petitioner assails the order passed by the learned Additional Sessions Judge primarily on the ground that neither the petitioner was heard nor the record was perused and, therefore, the appeal could not be dismissed for nonprosecution.

In this regard the attention of the Court has been drawn towards the Supreme Court decision rendered in the case of Ram Naresh Yadav and others v. State of Bihar, AIR 1987 SC 1500. The appeal in the cited case was before the High Court. It had been dismissed without hearing the appellant or his counsel. The Supreme Court allowed the appeal holding that 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 expense. The following findings are pertinent:

"The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellent or his counsel. The court might as well appoint a counsel at State cost, to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. As the matter is being remanded to the High Court, no orders can be passed on the bail application. The appellants, if so advised, may approach the High Court for bail."

However, it is apparent that this cited decision did not pertain to an appeal pending before the Court of Sessions. This distinction in appeal before the High Court or the Court of Sessions because of the absence of inherent powers in the Court of Sessions, had been taken note of by the Division Bench of Calcutta High Court in the case of Radheshyam Soni and another v. State and another, 1991 Criminal Law Journal 2926. It was concluded that High Court may dismiss criminal appeal in default and restore the same on sufficient grounds. But the other appellate courts hearing appeals under the Code of Criminal Procedure are strictly governed by Section 386 Code of Criminal Procedure. They have no inherent powers in view of the mandate of that section. The Court of Sessions must dispose of the appeal on merits on perusal of the record and if appellant or his counsel appears, on hearing them. This Court finds itself in agreement with the said view.

In the present case, the appellant was present before the learned Additional Sessions Judge. His counsel was absent. It is unfortunate that the counsel did not appear despite repeated calls. All the same the order of the learned Additional Sessions Judge clearly indicates that neither the record was perused nor the appellant who was present, was heard. The learned Additional Sessions Judge was under a legal obligation because of the mandate of law to dispose of the appeal only in accordance with the prescribed procedure. He should have given an opportunity to the appellant to address arguments in person even if his counsel had not appeared and indicated that the record had been perused. Dismissal of the appeal for nonprosecution, therefore, cannot be sustained. It becomes unnecessary, therefore, to express any opinion on merits.

For these reasons, the criminal revision against the judgment of the learned Additional Sessions Judge is accepted. The case is remanded for disposal of the appeal in accordance with law. The file be put up before the learned Sessions Judge, Ludhiana to hear the appeal himself or assign it to any other court of competent jurisdiction on 7.2.1996.