Siaram Yadav vs State of Bihar

Ram Nandan Prasad, J.—The petitioner along with another accused had been put on trial for an offence u/s 395 of the Indian Penal Code and they were convicted for this offence and sentenced to rigorous imprisonment for five years by the II Assistant Sessions Judge. Samastipur. They both preferred an appeal in the Court of the Sessions Judge, Samastipur. During the pendency of the appeal the other accused died and the petitioner''s appeal remained pending and was ultimately dismissed by the 3rd Additional Sessions Judge. Samastipur on 25-7-85. The present application is against the judgment of the Appellate Court.

The admitted position is that when the appeal was taken up for hearing on 25-7-87 in the Court of the Additional Sessions Judge neither the appellant appeared nor there was any appearance on behalf of his counsel in spite of the fact that the learned Court had on earlier dates given adjournment in order to give them opportunity of being heard. Under these circumstances, the learned Additional Sessions Judge observed that it appears that the appellant had no interest in prosecuting the appeal and therefore he heard the Additional P.P. on behalf of the respondent and thereafter considered the entire case on merit and passed judgment upholding the conviction and sentence of the petitioner.

It has been urged on behalf of the petitioner that even if he or his counsel did not appear before the learned Appellate Court, that Court could not dismiss the appeal on merits without hearing the appellant. It has been submitted that if the appellant''s counsel did not take interest in prosecuting the appeal, the appellant should have been noticed and if even this failed to bring forth any response, the lower Appellate Court should have appointed a State counsel who could have placed the facts and argued the case on merits on behalf of the appellant. In support of this contention that at the time of hearing of the appeal, the Court ought to have appointed a State counsel to argue the case on merits on behalf of the appellant and only after having heard such a counsel the Appellate Court may pass a judgment on merits, reliance has been placed on the decision of the S.C. in AIR 1987 SC 1500 : 1987 Cri LJ 1856.

The learned State counsel has submitted that the aforesaid decision of the Supreme Court does not seem to take note of its own earlier decision reported in Shyam Deo Pandey and Others Vs. The State of Bihar, That decision was also by a Bench consisting of two Hon''ble Judges of the Supreme Court. In that case their Lordships were considering the scope and application of the words "after perusing such record" occurring in Section 423 of the old Code of Criminal Procedure. Section 423 of old Code of Criminal Procedure (5 of 1898) defines the powers of the Appellate Court in disposing of appeals and the corresponding section in the new Code of Criminal Procedure. Act 11 of 1974 (hereinafter to be referred to as the new Code) is Section 386 and this also contains the same provision in regard to the point under consideration.

In Shyamdeo Pandey''s case, the Supreme Court while considering the procedure for hearing of appeals, noted that the Appellate Court had full powers to dismiss the appeal summarily u/s 421 of the old Cr. P.C. (corresponding to Section 384 of the new Code) after examining the petition of appeal and the copy of the judgment, but when this is not done and the Appellate Court admits the appeal for hearing it indicates that there are some arguable points in the appeal and so when the stage of hearing of the appeal comes (S. 423 of the old Cr. P.C. arid Section 386 of the new Code) the Appellate Court must pass necessary orders after perusing the record which means the lower Court record which has been called for by the Appellate Court after the admission of the appeal. After fully considering the purport of the words "after perusing such record their Lordships in Shyam Deo Pandey and Others Vs. The State of Bihar, were pleased to lay down that at the stage of hearing a criminal appeal cannot be dismissed for default of appearence of the appellant or his counsel and if such default occurrs, the Appellate Court has to consider itself the case on merits (which means after perusing the record of the case including evidence) and then pass judgment on merits. The observations of their Lordships in this regard are contained in para 19 of the judgment and the relevant portion is as follows:

A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits so as to pass final orders, will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the. Court and the appeal is set down for hearing, it is essential that the Appellate court should : (a) peruse such record; (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. 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 of the appeal : but that 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.

The law laid down by the Supreme Court in Shayam Deo Pandey''s case appeared to be the settled legal position in as much as even prior to this decision most of the High Courts in the country had given decision on the same lines. I may indicate only a few of them by giving the reference :ILR (1927) Patna 16 : 1927 Cri LJ 351 (Kuldip Singh v. King Emperor) ILR(1891) All 171 (Queen Empress v. Pohpi) Radha Raman Kundu Vs. Gopal Chander Sinha, Lakshmandas Chaganlal Bhatia and Others Vs. The State, Dina Nath Vs. Nek Ram, . According to the decision of the Supreme Court in Shyam Deo Pandey and Others Vs. The State of Bihar, and the decisions of the various High Courts also the legal position appears to be as follows:

(i) That if an appeal had been admitted for hearing, it could not be dismissed for default of appearance of the appellant or his counsel.

(ii) When the appeal is taken up for hearing and even on having given due opportunity the appellant or his counsel does not appear, the appellate court (after hearing the State Counsel if he appears and without it if he does not appear may proceed to dispose the appeal on merits by giving a reasoned judgment. The recent judgment of the Supreme Court in Ram Naresh Yadav''s case AIR 1987 SC 1500 : 1987 Cri LJ 1856 alters this legal position in two respects:

(i) That the appellate court may dismiss the appeal for non-prosecution, that is for default of appearance of the appellant or his counsel.

(ii) That when the appeal is taken up for hearing and the appellant or his counsel does not appear, still the appellate court cannot proceed to consider the case on merits after perusing the record and that it must withhold its hands and appoint a State counsel and hear him on behalf of the appellant and then only dispose of the appeal on merits. The decision in Ram Naresh Yadav''s case is also by a Division Bench consisting of two Judges.

It was urged by the State counsel that it appears that while deciding Ram Naresh Yadav''s case their Lordships were not apprised about the earlier decision in Shayam Deo Pandey''s case which has given a more comprehensive and considered decision. He has further argued that according to established practice the earlier decision of the Supreme Court which is of a co-equal Bench should prevail upon the subsequent decision in Ram Naresh Yadav''s case and if this position is accepted then there is no ground for setting aside the reasoned judgment of the lower appellate court on merits, merely because the appellant or his counsel did not choose to argue the case even after due opportunity had been given. The argument of the State counsel to the effect that the earlier decision of co-equal Bench will prevail over the subsequent decision as the latter has not taken note of the earlier decision, can no longer be regarded as valid in view of the Full Bench decision of this Court in Amar Singh Yadav and Another Vs. Shanti Devi and Others, . The Full Bench which was considering this point has clearly laid down that the time criteria cannot be the proper guide. The relevant observations of his Lordship S. S. Sandhawalia C.J.. who delivered the main judgment on behalf of the Full Bench are noted in para 16 of the judgment and may be quoted below:

Now the contention strongly urged on behalf of the respondents that the earlier judgment of a co-ordinate Bench is to be mechanically followed and must have preeminence irrespective of any other consideration, because the latter one has missed notice thereof, does not commend itself to me. 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 circumstance of the time and date on which they were rendered. Equally, the fact that the subsequent judgment failed to take notice of the earlier one or any presumption that a deviation therefrom could not be intended, cannot possibly be conclusive. Vital issues, pertaining to the vital questions of the certainty and uniformity of the law, cannot be scuttled by such legal sophistry. It is manifest that when two directly conflicting judgments of the Superior Court and of equal authority exist, then both of them cannot be binding on the Courts below. A choice, however difficult it may be has to be made in such a situation and the date cannot be the guide. However, on principle it appears to me. that the High Court must in this context follow the judgment, which would appear to lay down the law more elaborately ana accurately. The mere incidence of time, whether the judgments of co-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.

Thus according to the decision of the Full Bench it is manifest that in a situation of such conflict the courts must follow that judgment which appears to set the law more elaborately land accurately.

Applying the guidelines laid down by the Full-Bench to the two decisions of the Supreme Court in Shyam Deo Pandey and Others Vs. The State of Bihar, and Ram Naresh Yadav''s case 1987 Cri LJ 1856). I think the law had been more elaborately and acurately considered by the highest court in Shyam Deo Pandey''s case. Moreover, in my opinion, there is conflict between the two decisions of the Supreme Court only in one respect namely that when an appeal, which was not summarily rejected but admitted for hearing on merits, is taken up for hearing whether it can be dismissed at that stage for non-prosecution. According to the decision in Shyam Deo Pandey''s case it cannot be, but according to the observations of their Lordships in Ram Naresh Yadav''s case it may be so done. With great respect to me it appears very likely their Lordships while deciding Ram Naresh Yadav''s case were not apprised of the decision of the Supreme Court in Shyam Deo Pandey''s case and the long series of decisions of the various High Courts in this regard, and if they had been apprised, probably the observation, "the court can dismiss the appeal for non-prosecution and enforce discipline" might not have been made. As regards the second point, namely whether the appellate court in absence of the appellant or his counsel, may straightway proceed to consider and dispose of the appeal on merits, the ratio decidendi of the two judgments of the Supreme Court are. in my opinion, not in real conflict. Prior to the decision in Ram Naresh Yadav''s case, the position was that the appellate court was required to give due opportunity of hearing to the appellant or his counsel and if they did not avail of it, the appellate court could proceed to consider the entire case on merits and pass judgment, The effect of the decision in Ram Naresh Yadav''s case is that the right of the appellant has been further enlarged in as much as even when there is default of appearance by him or his counsel, the appellate court has to appoint a State Counsel and hear him on behalf of the appellant on merits and then dispose of the appeal. In my opinion, therefore, on this aspect of the law the two decisions of the Supreme Court in Shyam Deo Pandey''s case and Ram Naresh Yadav''s case may be legitimately harmonised.

In view of the discussion above to me it appears that the legal position on the points under consideration may be put down as follows:

(i) When an appeal has been admitted for hearing, it may not be dismissed for non-appearance of the appellant or his counsel. This is in accordance with the decision of the Supreme Court in Shyam Deo Pandey and Others Vs. The State of Bihar, which has more elaborately and accurately considered the point.

(ii) That when the appeal is taken up for hearing and the appellant or his counsel does not appear, the court should not proceed straightway to itself consider and dispose of the appeal, but provide further opportunity to the appellant by way of appointing a State Counsel to argue the appeal on his behalf and only after having heard the argument on behalf of the appellant, the court should proceed to dispose the appeal on merits. This is in accordance with the decision of the Supreme Court in Ram Naresh Yadav''s case 1987 Cri LJ 1856) which has in effect enlarged the right of the appellant than what it was as per the decision of the Supreme Court in Shyam Deo Pandey''s case and also decisions of the various High Courts.

In light of the enunciation made above, the impugned judgment has to be set aside and the case remanded to the lower appellate court for fresh decision on merits. Even if on remand the appellant or, his counsel does not appear, the court will appoint a State Counsel and hear him on behalf of the appellant and then dispose of the appeal on merits. However, learned lawyer for the petitioner, who was the appellant in the court below has submitted that the petitioner will now take necessary steps to prosecute his appeal before the appellate court. After the admission of this revision application, the petitioner had been granted bail. He will continue on his bail for one month from the date of receipt of this order in the court below and in the meantime he is expected to appear and pray for bail there. If he does not do so the lower appellate court, after the expiry of one month will be at liberty to cancel his bail and take steps for apprehending him as a convict on the basis of the judgment of the learned Assistant Sessions Judge. In the result the application stands allowed.