Allahabad High Court
Smt. Lakhapatiya vs State Of U.P. And Anr. on 2 December, 2013
Bench: Dharnidhar Jha, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 346 of 2013 Applicant :- Smt. Lakhapatiya Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- K.N. Mishra Counsel for Opposite Party :- Govt. Advocate Hon'ble Dharnidhar Jha,J.
Hon'ble Pankaj Naqvi,J.
1. The solitary respondent Manoj Prasad has appeared in Court in pursuance to Court's order dated 10.10.2013. Sri Rakesh Prasad, Advocate, who has entered appearance on his behalf by filing power, identifies the respondent.
2. Respondent need not appear further in the appeal unless directed by the Court.
3. Lower court records have been received. Appeal to be listed only when it is ripe for hearing before the appropriate Bench.
4. During the course of present proceeding, it was pointed out by the learned counsel appearing for the respondent, by producing before us a copy of our order passed on 22.10.2013, that the connected State's appeal has been dismissed by us at the admission stage without sending for the lower court record. We want to say something on the information and submission.
5. Section 384 Cr.P.C. lays down that if upon examining the petition of appeal and copy of the judgement received either under Section 382 or Section 383 Cr.P.C., the appellate court considers that there was no sufficient ground for interfering, it may dismiss the appeal summarily. But, that provision under Sub-section (1) of Section 384 Cr.P.C. is governed by the proviso appended to it.
6. As per proviso (a) if the appeal has been presented under Section 382 Cr.P.C. then it shall never be dismissed unless the appellant or his pleader has a reasonable opportunity of being heard in support of the same.
7. Section 382 Cr.P.C. lays down the procedure or practice of filing an appeal and lays down that it has to be filed in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall, unless the Court otherwise directs, be accompanied by a copy of the judgement or order appealed against. Thus, if an appeal has been presented by the appellant or his counsel, then the same could not be dismissed summarily unless the counsel has an opportunity of satisfying the court on its merit. It is pertinent to appreciate that the procedure of filing an appeal, which definitely includes as much an appeal against conviction as that against acquittal, is the same and similar and as such an appeal filed against a judgement either of conviction or of acquittal may be dismissed summarily after merely considering the memo of appeal and the accompanying copy of the judgement or the order, as the case may be and the appellate court is not obliged to send for the trial court's record.
8. Proviso (b) to Section 384 (1) Cr.P.C. refers to the appeals which are to be filed or received under Section 383 Cr.P.C. and bars the dismissal of such an appeal summarily unless the appellant has a reasonable opportunity of being heard in support of the same, unless the appellate court is of the opinion that the appeal was frivolous or that the production of the accused in custody before the court would involve such inconvenience as would be disproportionate in the circumstances of the case. As may appear from the very language of proviso (b) appended to Section 384 (1) Cr.P.C., the appeals under Section 383 Cr.P.C. are those appeals which are to be filed when the appellant is in jail after being convicted and sentenced and in such a case no appeal could be dismissed summarily. Thus, it may be said that appeals to be filed under Section 383 Cr.P.C. are necessarily those appeals in which a right to appeal has been created by the Cr.P.C. We have to always keep in our mind that the Cr.P.C. by virtue of the first part of Section 372 Cr.P.C. restricts the right to appeal only to such cases which are enumerated by it, as is evident from Section 373 and 374 and also from Section 375, 376 and 377 of the Cr.P.C.
9. Now, Sub-Section (2) to Section 384 Cr.P.C. reads that an appellate court before, it had proceeded to dismiss the appeal summarily, may call for the record of the case which, in our opinion, is purely a discretionary power vested in the appellate court which becomes more vivid and clear when one considers the other provision vesting in the appellate Court a similar power.
10. Section 385 refers to the procedure for hearing the appeal not dismissed summarily and it may appear from the reading of Sub-section (2) to Section 385 Cr.P.C. that if the appeal has not been summarily dismissed under Section 384 Cr.P.C. and the appellate court rather has decided that the appeal has to be heard, then what it has to do is to issue a notice fixing the time and place on which such appeal has to be heard.
11. Sub-section (2) to Section 385 Cr.P.C. further requires that in case of issuing a notice after deciding that the appeal has to be heard, that is to say, if the appellate court has admitted the appeal for hearing, then what the appellate court is further required to do is that it can not hear the appeal and pass any judgement final in nature, unless it had sent for the record of the case, if the case record was not already available with it and then only it has to proceed to hear the parties.
12.On consideration of these relevant provisions, it could very safely be concluded that the power to send for the record which is indicated by section 384 (2) Cr.P.C. is completely discretionary as regards hearing on admission of an appeal under Section 384 Cr.P.C., unless the appellate court after perusing the judgement which could be accompanying the memo of appeal, feels inclined to call for the lower court records for proving it, may be for perusing the evidence, to test the findings which could have been recorded by trial court to, prima- facie know, as to whether those are incorrect, inappropriate, perverse or illegal.
13. We have been getting an impression that there is some opinion making rounds in our minds and in the minds of the Bench also that summary dismissal of an appeal, like, the government appeal or an appeal under Section 372 proviso Cr.P.C. could not be ordered. We are of the opinion that such an opinion when tested in the light of the provisions which we have just discussed, could not be accepted as correct due to being not supported by the provisions of the Cr.P.C. Sending for the record is never the sine-qua-non for hearing a counsel on admission of appeal under Section 384 Cr.P.C. as is vividly clear and as we have just exhibited.
14. One very important aspect concerning the hearing of an appeal and dismissing it under Section 384 Cr.P.C. is that the summary dismissal of an appeal filed either U/sec. 382 or 383 Cr.P.C. may be ordered only after the appellate Court has 'examined the petition of appeal and the copy of judgment' and 'considers that there is no ground' for interfering in it. The words 'examined', and 'considers' sufficiently indicate that the appellate court has to apply its mind to the petition of appeal and the accompanying copy of judgment and to find out the 'ground' as to whether there was any need to interfere in the judgment or not. As soon as the legislature required the appellate court to apply its mind to find the 'ground' for reaching a decision as to whether there was a need to interfere or not to interfere into the judgment, in our opinion, it should, in a case of summary dismissal of appeal, record its reasons indicating the ground for not interfering into the judgment. No appellate Court should dismiss an appeal summarily unless it has applied its minds and assigned reasons in that behalf.
15. In the above context the provisions of Section 384 (4) Cr.P.C has also to be considered which reads as under:
"Section 384 (4): Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law."
16. It appears from the above part of Section 384 Cr.P.C. that if an appeal has been preferred by a convict from jail as per the provisions of Section 383 Cr.P.C. and that has been dismissed summarily by the appellate court, that would not be creating any bar or impediment in considering yet another appeal filed by him according to the provisions of Section 382 Cr.P.C.
17. We have already noted that the word 'appeal' which appears in Section 382 Cr.P.C. connotes appeals both against acquittal and conviction. However, this provision contained under Sub-section (4) of Section 384 Cr.P.C. while referring to Section 382 Cr.P.C. has always to be construed to meant and to refer as well to an appeal only against conviction, because the appeal which had been dismissed earlier by the appellate court summarily and which was filed under Section 383 Cr.P.C. could be the appeal against conviction only of an accused and as such, the consideration of the second appeal under Section 382 Cr.P.C. shall always refer to another appeal filed by the same appellant to challenge his conviction. Thus, what we find is that mechanisms which have been put in place in the Cr.P.C. under Chapter XXIX does not speak anything as to what shall happen when an appellate court has dismissed an appeal filed under Section 378 Cr.P.C. as was dismissed by us by our order dated 22.10.2013 in connected government appeal, the copy of which was placed before us by Sri Rakesh Prasad, Advocate, while the other appeal filed by the informant or the victim of the offence under Section 372 proviso Cr.P.C. was pending, as appears in the case in hand.
18. We are of the opinion that the proviso which was added to Section 372 Cr.P.C. came into effect on the 31st of December, 2009 on account of the amendment brought into the Cr.P.C. by Act No. 5 of 2009 and the original draft of the provisions of Section 384 was left undisturbed. The legislature also did not visualise that such an anomalous situation should arise before any appellate court. As such, it could not enact a similar provision like 384 (2) Cr.P.C. to take care of the situation which has been presented today before us.
19.After being shown the order dated 22.10.2013 passed by us in Government Appeal No. 4563 of 2013, we asked our Bench Secretary, Sri B. N. Pandey to produce the cause list of fresh cases listed before us on 22.10.2013 and the same being produced before us, we found that the cause list showed the present appeal still pending on 22.10.2013 whereas the same stood already admitted by an order passed on 10.10.2013.
20.The above fact of pendency of the present appeal was also not brought to our notice and we heard the government appeal on its admission and we proceeded to pass the order on 22.10.2013. There could be many reasons emanating from the computer generated list of fresh cases dated 22.10.2013 and we do not want to go into those reasons or circumstances because that may be extremely embarrassing for the Court itself.
21.In order to avoid recurrence of such embarrassing situation, what we want to do is to direct that the Section of the Court which receives the appeals against acquittal or the Stamp Reporter's Section of the Court, should point out specifically to the Court in its report that any particular appeal filed under any other provision of the Cr.P.C. was still pending or had been disposed of by an order of any particular date, so that the Bench of the Court has full notice of such facts. It would make things easier and convenient for the Benches of the Court which handle such matters and no such anomalous situation could recur in future.
22.We direct the Registrar General of the Court to circulate the present order among all officers and staff of the Court connected with such matters to follow the procedure and if possible tag the two appeals together so that they are always placed before a Bench and the Bench could pass necessary orders in the above view.
Order Date :- 2.12.2013 YK