Madhya Pradesh High Court
Gulab Khan vs The State Of Madhya Pradesh on 11 December, 2018
1
THE HIGH COURT OF MADHYA PRADESH
MCRC 44589/2018
Gulab Khan vs. State of MP
Gwalior, dtd. 11/12/2018
Shri Sankalp Sharma, Counsel for the applicant.
Shri R.K. Awasthy, Counsel for the respondent/State.
Heard on the question of admission.
This application under Section 482 of Cr.P.C. has been filed seeking recall of Judgment dated 27-9-2018 passed by this Court in Cr.A. No.875/2007, thereby affirming the judgment and sentence dated 30th Oct. 2007 passed by Additional Sessions Judge [SC&ST (Prevention of Atrocities) Act], Vidisha in Special Sessions Trial No. 52/2007, by which the appellant has been convicted under Sections 342, 376(2)(d) of I.P.C.
When the case was taken up for hearing, none appeared for the appellant/applicant. It was being flashed on the Display Board also, that this Criminal Appeal is being taken up for hearing, but in spite of that, none appeared for the appellant/applicant and considering the fact, that the appeal is pending since, 2007 and 11 years have passed and the appellant/applicant is on bail, and nobody is turning up for arguing the matter finally, therefore, the Criminal Appeal filed by the appellant/applicant was considered on merits after going through the record with the assistance of the Public Prosecutor.
It is submitted by the Counsel for the applicant that for the reasons, unknown to the applicant, his counsel did not appear before the Court, when the appeal was being taken up for hearing, and since, the appeal has been dismissed on merits and the applicant could not get an opportunity of hearing, therefore, the Judgment dated 27-9-2018, may be recalled and 2 the applicant may be heard.
Per contra, it is submitted by the Counsel for the State, that this Court, after considering the record and after hearing the Public Prosecutor, has decided the appeal on merits which is permissible in order to avoid the delaying tactics which may be adopted by the accused, who is on bail, therefore, the Judgment is not required to be recalled and the applicant has not explained as to why his Counsel did not appear before the Court, when the case was taken up for hearing.
Heard the learned Counsel for the parties. The applicant had filed a Criminal Appeal No.875/2007, against his conviction under Sections 342, 376(2)(d) of I.P.C. The said appeal was taken up for hearing on 27-9-2018, which is a hearing party day as per the roster, however, none appeared before the Court, in spite of the fact, that it was being flashed on the display board.
Accordingly, this Court after considering the record, as well as after hearing the public prosecutor, dismissed the appeal on merits.
In the present application, the applicant has not explained as to why his Counsel did not appear before the Court, when the appeal was taken up for hearing.
Para 12 of the application reads as under :
''12.That, the appellant most humbly submits that he is unaware of the reasons for which the Counsel failed to appear before the Hon'ble Court and pursue the matter.'' Thus, it is clear that the applicant has failed to point out the circumstances, because of which, the Counsel for the applicant, did not/could not appear before the Court at the time of hearing.3
Now, the next question is that whether this application is barred by Section 362 of Cr.P.C. or not?
In the present case, the applicant has not sought review of the Judgment dated 27-9-2018 on the merits of the case, but he has sought recall of the order, on the ground of audi alteram partem.
The Supreme Court in the case of Asit Kumar Kar Vs. State of W.B., reported in (2009) 2 SCC 703 has held as under :-
''6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.'' The Supreme Court in the case of State of Punjab Vs. Davinder Singh Bhullar and others reported in (2011) 14 SCC 770 has held as under :-
''44. There is no power of review with the criminal court after the judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 CrPC is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See Hari Singh Mann v. Harbhajan Singh Bajwa and Chhanni v. State of U.P.) 4
45. Moreover, the prohibition contained in Section 362 CrPC is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 CrPC has no authority or jurisdiction to alter/review the same.
(See Moti Lal v. State of M.P., Hari Singh Mann and State of Kerala v. M.M. Manikantan Nair.)
46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob Ilahi, Deepak Thanwardas Balwani v. State of Maharashtra, Habu v. State of Rajasthan, Swarth Mahto v. Dharmdeo Narain Singh, Makkapati Nagaswara Sastri v. S.S. Satyanarayan, Asit Kumar Kar v. State of W.B. and Vishnu Agarwal v. State of U.P.)
47. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in criminal law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide State v. K.V. Rajendran.)
48. In Sooraj Devi v. Pyare Lal this Court held that the prohibition in Section 362 CrPC against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 CrPC and, 5 therefore, the attempt to invoke that power can be of no avail.
49. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.'' Thus, where an order is sought to be reviewed on its merits, then the same is not permissible in view of Section 362 of Cr.P.C., however, where the recall is sought on the ground of audi alteram partem, then the said application would not be hit by Section 362 of Cr.P.C., and the application for recall is maintainable. However, the party seeking recall has to establish that it was not at fault.
In the present case, the applicant has not disclosed as to when the case was called, why his Counsel did not appear before the Court. The submission made by the applicant that since, he was regularly appearing before the Registry of this Court, therefore, it cannot be said that the applicant had ever misused his liberty is concerned, it is suffice to say that mere regular appearance before the Registry of this Court, does not mean that the applicant has a right to avoid final hearing of the case. If the applicant or his counsel, do not appear before the Court, at the time of final hearing and do not argue the matter, then it can be safely held that the liberty granted to the applicant, by releasing him on bail, was in fact misused by the applicant, as he was not ready to take the risk of getting the matter adjudicated finally, and was interested in keeping the appeal pending, so that he can enjoy the bail granted by this 6 Court.
It is next contended by the Counsel for the applicant that when neither the appellant/applicant nor his Counsel were present, then the Court should have issued a warrant against the appellant/ applicant, seeking his appearance, so that the appeal may be heard finally in his presence. The submission made by the Counsel for the applicant cannot be accepted as the ground raised by the applicant is no more res-integra.
The Supreme Court in the case of Bani Singh Vs. State of U.P. reported in (1996) 4 SCC 720 has held as under :-
''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 case2 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 non- prosecution 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 cross-checking 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 case1 that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.
15. Secondly, the law expects the appellate court 7 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 case1 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.
16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain 8 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.'' The Supreme Court in the case of Kishan Singh VS. State of U.P. reported in (1996) 9 SCC 372 has held as under :-
''7. It will be seen that the very opening words of the section require the appellate court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same. Sub-section (2) provides that the Court may call for the records of the case even at the preliminary stage. It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the Court to press the appeal. As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily. In a case where the appellant has been sentenced to imprisonment and he is not in custody when the appeal is taken up for preliminary hearing, the appellate court can require him to surrender, and if the appellant fails to obey the direction, other considerations may 9 arise, which may render the appeal liable to be dismissed without consideration of the merits, but that is altogether a different matter with which we are not concerned in the present case. Here, the appellant's advocate was not present to argue the appeal when the case was called out and in the restoration application filed subsequently, attempt was made to explain the default, which, of course, did not succeed. The question is, whether in the circumstances, the High Court could have dismissed the appeal for default, and if not, whether the prayer for restoration should have been allowed. As is manifest from the provisions of the Criminal Procedure Code, referred to above, the High Court should have either examined the appellant's petition of appeal and the judgment under challenge itself or appointed a counsel to assist the Court, but could not have proceeded to dismiss the same on the ground that the advocate for the appellant was not present. The position of a criminal appeal is not the same as in a civil appeal governed by the Civil Procedure Code. A comparison of the provisions of Section 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference. Rule 17, Order 41 of the Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non-appearance.
In the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure. On the other hand the Code in express terms requires the matter to be considered on merits. Thus a criminal appeal cannot be dismissed for non-prosecution, and this is the reason as to why the Criminal Procedure Code does not contain any special provision like Order 41, Rule 19. The law was correctly laid down in Shyam Deo Pandey v. State of Bihar, a case governed by the old Criminal Procedure Code. The position in this regard remains the same under the new Code. Even earlier, the High Courts were following this very principle is clear from the observations in Emperor v. Balumal Hotchand and Ramesh Nanu v. State of Gujarat. In Emperor v. Balumal Hotchand it was observed thus:
10"...that the law requires that before an appellate court dismisses an appeal summarily, it shall read a copy of the judgment, and then, if there is no sufficient ground for interfering, it may dismiss the appeal summarily. It was emphasized that the dismissal of the appeal shall depend on the exercise by the Judge of his independent and impartial mind after he has read a copy of the judgment, and not upon the failure of the accused to press his appeal."
The Supreme Court in the case of Dharam Pal Vs. State of U.P. reported in (2008) 17 SCC 337 has held as under :-
''10. Before we proceed further, we keep it on record that in the present case, the appellants were granted bail and in fact, at the time of hearing of the appeal, they were already enlarged on bail. Only after the judgment was delivered by the High Court, was the bail cancelled and they were directed to surrender before the appropriate authority. At this stage, we may note the relevant provisions under the Code of Criminal Procedure (for short "the Code"). Chapter 29 of the Code deals with appeals under the Code. Sections 385 and 386 of the Code, which are the most important provisions for dealing with the case in hand, are reproduced as under:
"385. Procedure for hearing appeals not dismissed summarily.--(1) If the appellate court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given--
(i) to the appellant or his pleader;
(ii)-(iv) * * * (2) The appellate court shall then send for the record of the case, if such record is not already available in that court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the court may dispose of the appeal without sending for the record.
(3) * * *
386. Powers of the appellate court.--After perusing such record and hearing the appellant 11 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--
* * * Having examined the provisions under Sections 385 and 386 of the Code, as noted hereinabove, and applying the principles laid down by this Court in Bani Singh1 we are not in agreement with the argument advanced by the learned counsel for the appellants that the High Court ought not to have decided the appeal on merits in the absence of the appellants as the High Court had no power or jurisdiction under Sections 385 or 386 of the Code to do so.
11. So far as the service of notice of the appeal on the appellants by the High Court is concerned, we are unable to agree with the learned counsel for the appellants that the notice of appeal was not served upon them and therefore, without a proper service of notice of appeal on the appellants and without giving them any opportunity of hearing to proceed with the appeal, the High Court erred in proceeding with the appeal and deciding the same on merits. Even if we assume that the notice of appeal was not served on the appellants, then also, it was an admitted position that the learned counsel for the appellants appeared for them to prosecute the appeal and therefore, after appearance of the learned counsel for the appellants, it must be held that the notice of appeal was duly served. At the risk of repetition, we may note that the learned counsel for the appellants submitted before the High Court that despite repeated reminders to the appellants, the appellants were not responding and therefore, the learned counsel for the appellants expressed his inability to argue the case before the High Court.
12. That apart, the decision of this Court in Bani Singh case1 would clearly show that when the accused does not appear, it is the bounden duty of the High Court to look into the records and the other materials on record, including the judgment of the trial court and thereafter, decide the appeal on merits which would be due compliance with 12 Sections 385 and 386 of the Code in disposing of criminal appeals.
13. While dealing with the procedure for disposing of a criminal appeal, this Court in Bani Singh case1 has clearly laid down that the dismissal of an appeal for default or non-prosecution without going into the merits of the case is clearly illegal and that the appellate court must dispose of the appeal on merits after perusal and scrutiny of record and after giving a hearing to the parties, if present, before disposal of the appeal on merits.
This Court, in that decision, further held that the appellate court must dispose of the appeal after perusal of the record and judgment of the trial court even if the appellant or his counsel was not present at the time of hearing of the appeal. The only exception, as we find from the aforesaid decision of this Court, is that if the appellant is in jail and his counsel is not present, the court should adjourn the case to facilitate the appearance of the appellant.
14. There is yet another exception to this rule, namely, that in an appropriate case, the court can appoint a lawyer at the State's expense to assist the court. Therefore, the High Court, in our view, was justified in taking the assistance of the Assistant Government Advocate and after taking such assistance and considering the entire evidence on record, the High Court passed the judgment under appeal before us holding that the appellants were guilty of the offence, not under Sections 302/34 IPC but under Section 304 Part II IPC and directed them to undergo 7 years' rigorous imprisonment. In doing so, the High Court affirmed the findings of the trial court but differed on the point of the offence committed by the appellants and the corresponding punishment to be awarded to them.'' The Supreme Court in the case of Surya Baksh Singh Vs. State of U.P. reported in (2014) 14 SCC 322 has held as under :-
''24. It seems to us that it is necessary for the appellate court which is confronted with the absence of the convict as well as his counsel, to immediately proceed against the persons who stood surety at the time when the convict was 13 granted bail, as this may lead to his discovery and production in court. If even this exercise fails to locate and bring forth the convict, the appellate court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions: (SCC p. 734, para 19) "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 appellant-
accused 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."
25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the 14 spectacle of the convict circumventing his conviction. (See Stirland v. Director of Public Prosecutions, quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh.) If the court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 CrPC, can also be pressed into service but with care, caution and circumspection.'' Thus, it is clear that where the applicant is on bail, and at the time of final hearing, if the applicant and his Counsel do not appear before the Court, then the Court has an option to decide the appeal on merits after going through the record on its own or with the assistance of Public Prosecutor or with the help of amicus curiae.
It is next contended by the Counsel for the applicant that in view of Rule 9 of Chapter XIII of M.P. High Court Rules, 2008, the Court should have dismissed the appeal in default.
Rule 9 of Chapter XIII of M.P. High Court Rules, 2008 reads as under :
''9. If the appellant/applicant/petitioner fails to take requisite steps in a main case and it appears that he is not prosecuting the same with due diligence, the Registrar shall call upon him to make good/explain the default. If default is not made good and no explanation is offered within stipulated time or the offered explanation is found to be unsatisfactory, the matter shall be placed before the Court for dismissal in default of compliance or for appropriate orders.'' From the plain reading of Rule 9 of Chapter XIII of High Court Rules, 2008, it is clear that it deals with a situation, where the default is not removed and the appeal is not being prosecuted diligently. Rule 9 of Chapter XIII of High Court Rules, 2008 does not deal with the situation in hand. When the 15 case is fixed for final hearing before the Court, then the proceedings would be governed by the provisions of Section 385 of Cr.P.C. Even otherwise, if the contention of the applicant, that this Court should have proceeded in accordance with Rule 9 of Chapter XIII of M.P. High Court Rules, 2008 is accepted, then this Court would have been left with no other option but to dismiss the appeal in default, whereas in view of Section 385 of Cr.P.C., the Appellate Court, cannot dismiss the appeal for want of appearance of the appellant or his Counsel.
Rule 9(2) and (3) of Chapter 12 of M.P. High Court Rules, 2008 as under :-
''9(2) Out of quarterly list of ripe cases, the Registry shall prepare a weekly list, in chronological order and the same shall be sent to the Advocate General and the concerned High Corut Bar Association. This weekly list shall also be displayed on the Notice Board of the High Court and posted on the web-site of the High Court. A copy of list shall also be sent to the concerned branch of the office.
Provided that a case once included in the weekly cause list for final hearing of cases, shall not ordinarily be dropped from the list of subsequent weeks unless the case is heard or adjourned by the Court.
Provided further that the not reached cases from previous week shall ordinarily be listed in teh same order at the top of the weekly cause list for the subsequent week. The cases included in the subsequent weeks shall be added below the not reached cases in chronological order.'' In the present case, the appeal was included in the weekly list of Final Hearing cases and the list of final hearing was also posted on the web-site of the High Court. Further, the weekly list of final hearing cases is always taken up on every Thursday, and in the present case also, the weekly list of Final Hearing cases was taken up on 27-9-2018 i.e., Thursday. Thus, not 16 only the Counsel for the appellant/applicant was aware of the listing of the case, but the appellant/ applicant had also an opportunity to know about the listing of the case in the list of final hearing cases. Further, it was being displayed on the Display Board, that the hearing of the case is going on but in spite of that, neither the Counsel for the appellant/applicant nor the appellant/applicant appeared before the Court.
Thus, it is clear that the applicant has failed to point out any reason for not appearing before the Court, at the time of hearing, then this Court was well within its right to consider the appeal on merits, after going through the record with the assistance of the Public Prosecutor. Accordingly, no case is made out for recall of the Judgment dated 27-9-2018 passed in Cr.A. No.875 of 2007.
Resultantly, this application fails and is hereby Dismissed.
(G. S. Ahluwalia) Judge MKB * MAHENDRA KUMAR BARIK 2018.12.17 17:43:59 +05'30'