Puran Chand vs Ghanshyam Rana

Cr.M.P.(M) No. 897 of 2017.

By medium of this application, the applicant/ petitioner has sought recalling of the order dated 13th June, 2017 whereby the sentence as imposed by the learned Magistrate was ordered to be suspended subject to deposit of Rs. 1,00,000/- in the Registry of this Court within a period of eight weeks.

It is stated that the Criminal Appeal that had been filed before the learned Appellate Court had been dismissed in default rather than the same being decided on merits and otherwise envisaged under the Law. Therefore, in absence of adjudication by the learned Appellate Court, the condition imposed by this Court is unduly harsh as the applicant/petitioner still has a chance to prove his innocence.

I have considered the application and find merit in the same. It is more than settled that a criminal case has to be decided on merits and therefore cannot be dismissed in default. Detailed reference to the legal position needs to be made while adjudicating the revision petition on merits.

In view of the aforesaid discussion, application is allowed and the order dated 13.6.2017 is recalled so far it relates to the deposit of Rs. 1,00,000/- in the Registry of this Court. Application stands disposed of.

Cr. Revision No. 35 of 2017.

With the consent of the parties the revision petition was heard on merits.

This petition is directed against the order passed by the learned Additional Sessions Judge (I), Mandi on 17.1.2017 which reads thus:

"17.01.2017

Present: None for appellant.

None for respondent.

Appeal called time and again but neither appellant nor his counsel appeared before this court. It is 12:45 pm. Be put up after lunch.

(Pune Ram)

Addl. Sessions Judge(I)

Mandi(HP)

17.01.2017

Present: None for appellant.

None for respondent.

Appeal called repeatedly since morning till afternoon but neither appellant nor his counsel appeared before this court. It is 3.55 pm. Hence, the appeal is dismissed for want of prosecution. The record of ld. Lo wer Court along with copy of this order be sent back forthwith and file of this after its due completion be consigned to record room.

(Pune Ram)

Addl. Sessions Judge(I)

Mandi(HP)"

As noticed above, the appeal filed by the petitioner has been ordered to be dismissed in default for want of prosecution. Therefore, the further question that arises for consideration is whether such a recourse was open to the court below or was it required to be decided on merits as has been contended by the learned counsel for the petitioner.

As regards the legal position, I only need to reiterate the judgment rendered by me in case titled as Pankaj Thakur versus State of H.P., reported in 2016 (2) ILR (HP) 1298, wherein it was held as under:

"2. Though the position of law is well settled that a criminal appeal cannot be dismissed in default for non prosecution, yet the learned Court ventured to pass the aforesaid order.

In Parasuram Patel and another versus State of Orissa (1994) 4 SCC 664, it was held by the Hon''ble Supreme Court that the criminal appeal cannot be dismissed for default in appearance and the Court must decide the matter on merit even in the absence of the appellant or his counsel.

In Bani Singh and others versus State of U.P. (1996) 4 SCC 720, it was held by the Hon''ble three Judges Bench of the Hon''ble Supreme Court that dismissal of appeal for default or non prosecution without going into merits of the case is illegal. It was further held that that the appellate Court must dispose of the appeal on merits after perusal and scrutiny of the record. It is apt to reproduce paragraphs 14 and 15 of the judgment which read thus:-

"14. 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 nonprosecution 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 crosschecking 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''s case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.

Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav''s case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent."

In K.S.Panduranga versus State of Karnataka (2013) 3 SCC 721, the legal position that the appeal cannot be dismissed for non prosecution simpliciter without examining the merits was reiterated in the following manner :-

"15. On a studied perusal of the said decision, it is noticeable that the Court has stated about the role of the lawyer and the role of the Bar Association in the backdrop of professional ethics and norms of the Constitution. It has been categorically held therein that the professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee and the lawyer is not otherwise engaged and, therefore, no Bar Association can pass a resolution to the effect that none of its members will appear for a particular accused whether on the ground that he is a policeman or on the ground that he is a suspected terrorist. We are disposed to think that in Mohd. Sukur Ali (supra), the aforesaid case was cited only to highlight the role of the Bar and the ethicality of the lawyers. It does not flow from the said pronouncement that it is obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment rendered by the High Court would be absolutely unsustainable.

At this juncture, it is apt to survey the earlier decisions of this Court in the field. In Shyam Deo Pandey and others v. The State of Bihar(1971) 1 SCC 855, a two-Judge Bench of this Court was dealing with a criminal appeal which had arisen from the order of the High Court whereby the High Court, on perusal of the judgment under appeal, had dismissed the criminal appeal challenging the conviction. The Court referred to Section 423 of the Old Code and came to hold that the criminal appeal could not be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal or it should consider the appeal on merits and pass final orders. It is further observed that: (SCC p.861, para 19)

"19......The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal is tested in the light of the record of the case."

The Court referred to the earlier Section 421 of the Code which dealt with dismissal of an appeal summarily and was different from an appeal that had been admitted and required to be dealt with under Section 423 of the Code. It is worth noting that reliance was placed on Challappa Ramaswami v. State of Maharashtra(1970) 2 SCC 426 wherein reliance was placed on Siddanna Apparao Patil v. State of Maharashtra (1970) 1 SCC 547 and Govinda Kadtuji Kadam v. The State of Maharashtra (1970) 1 SCC 469.

In Ram Naresh Yadav and others v. State of Bihar AIR 1987 SC 1500, a different note was struck by expressing the view in the following terms: (AIR p.1500, para 2)

"2....It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their mattes are decided on merits. 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 appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants."

In Bani Singh and others v. State of U.P.(1996) 4 SCC 720, a three-Judge Bench was called upon to decide whether the High Court was justified in dismissing the appeal filed by the accused-appellants therein against the order of conviction and sentence issued by the trial court for nonprosecution. The High Court had referred to the pronouncement in Ram Naresh Yadav (supra) and passed the order. The three-Judge Bench referred to the scheme of the Code, especially, the relevant provisions, namely, Section 384 and opined that since the High Court had already admitted the appeal following the procedure laid down in Section 385 of the Code, Section 384 which enables the High Court to summarily dismiss the appeal was not applicable. The view expressed in Sham Deo''s case (supra) was approved with slight clarification but the judgment in Ram Naresh Yadav''s case (supra) was over-ruled. The three-Judge Bench proceeded to lay down as follows: ( Bani Singh case13 , SCC pp. 726-27, paras 15-16)

"15.....It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385- 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav''s case (AIR 1987 SC 1500) did not apply the provisions of Ss. 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.

Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant''s presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher Court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted."

(Emphasis supplied)

From the aforesaid decision in Bani Singh13, the principles that can be culled out are:

19.1 That the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining the merits;

19.2. That the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;

19.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court;

19.5. That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation."

Similar reiteration of law can be found in Surya Baksh Singh versus State of Uttar Pradesh (2014) 14 SCC 222.

It is high time that the learned Appellate Courts act with sense of responsibility by adjudicating the matters on merits, rather than finding a short-cut to dispose of the same only with a view to complete the units of their disposal statement submitted to this Court.

The petition is accordingly allowed and impugned order passed by the learned Additional Sessions Judge (I), Mandi, District Mandi, H.P. on 17.01.2017 is set aside.

Accordingly, the revision petition is disposed of in the aforesaid terms, so also the pending application(s), if any.

Since the petitioner is in custody, he shall forthwith be released on bail on his furnishing bail bonds in the sum of Rs. 10,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent.