King Paul Singh vs State of J&K and Ors.

Can a criminal appeal be decided on merits in the absence of the appellant or his counsel? The interesting question arises in this revision petition

which is entertained after condoning delay in its filing.

Petitioner was convicted under section 324 RFC and sentenced to undergo six months simple imprisonment. He filed an appeal before Ld 1st

Addl. Sessions Judge, Jammu way back in 1983 which remained pending all these years and was disposed of on merits ultimately on Aug. 8,1987,

The court affirmed the conviction and pursuant thereto petitioner was arrested and is presently undergoing the sentence. He has filed this revision

petition to challenge the impugned order and asserts that appellate court could not have decided his appeal on merits in his absence or in the

absence of his counsel. He prays for setting aside of the order under revision and rehearing of the appeal on merits.

Ordinarily it should not have been difficult to direct the rehearing of the matter, but the matter assumes importance in view of some what

conflicting pronouncements by the Supreme Court on the point and also the current scenario of administration of criminal justice.

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

(I) 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 or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of

an appeal under section 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 or 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. There may be no harm in

directing rehearing in such cases.

This view is in accord with the ratio laid down in Shyam Deo Pandey vs State of Bihar AIR 1971 SC: 1606, 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 must be after the appellate court has considered the appeal on merits. It is clear that the appeal must be considered and

disposed 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 nonprosecution and enforce discipline or refer the matter to 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 appellants......

Both judgments of the court are of coequal 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 judgements are in operation, the one which lays

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

am fortified in this by a Full Bench judgment of Patna High Court (AIR 1987 Patna : 191). 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 coequal 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 circumstance of the time and date on which they are rendered.

Left to my choice, lam 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 judgement 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 pandey's case, it

cannot be said that it lays down the law on the point accurately and elaborately.

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

Consequently, the convicts have a field day after getting their sentence suspended. In the course of time, they loose track of the proceeding 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 Mares at face is whether a convict should be taken by suprise 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 at least have a notice of the date

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

Summing up, I feel 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.

In the present case, it transpires from the record that appellant was represented by M/s Avtar Singh and Baldev Singh advocates. He appears

to have absented from Oct. 8,1984. Thereafter, he was summoned through bailable warrants. Last warrant was issued against him on July 8,

1987, but the appellate court proceeded to decide the appeal on merits without wailing for its execution. There is also nothing to show on record

that any notice was given to M/S Avtar Singh and Baldev Singh advocates about the date of hearing. In the circumstances, therefore, I deem it

proper to direct the appellate court to rehear the matter on merits and dispose it off in accordance with law after affording the appellant or his

counsel an opportunity of being heard. Record be returned. Petitioner shall be allowed to contact his counsel and produced in the court of learned

Addl. Sessions Judge, Jammu on March 15, 1993.