Jammu & Kashmir High Court
Bashir Ahmad Wani S/O Haji Ghulam Mohd. ... vs State Of Jammu And Kashmir on 11 June, 2002
Equivalent citations: 2003(1)JKJ610
JUDGMENT
1. Applicant Bashir Ahmad, While working as clerk in the office of Assistant Commissioner, Tehsil Samba was trapped and caught red handed while accepting the money as illegal gratification. The investigations culminating in sending up accused for trial on charge under Section 5(2) read 5(1) (d) of the prevention of Corruption Act 2006. The trial ended in conviction and sentence of the accused for one year and fine of Rs. 200/-under Section 5(2) read with 5(1) (d) prevention of Corruption Act 2006. Accused filed an acquittal appeal on 30-12-1977 in the High Court. For failure of appearance and prosecution by petitioner or/ and his counsel the appeal was dismissed on merits and the order of conviction and sentence maintained. This happened on 4/4/2001.
2. Accused/appellant has moved this motion for recalling the judgment and order dated 4/4/2001. The question raised here is whether in the facts and circumstances of the case, the judgment and order of dismissal of Appeal dated 4/42001 can be reviewed, so as to be held as an error apparent on face of record/correcting clerical error or by resorting to inherent powers under Section 561-A Cr.P.C to allow rehaearing of appeal.
3. The counsel for the accused, review petitioner submits that the accused aplicant was never informed of hearing date(s) after this criminal acquittal apeal was transferred to Srinagar Wing of the High Court, notwithstanding his act of engaging Mr. ZA Shah as his counsel to prosecute the Appeal. The accused's appellant's failure to appear made court to issue warrants against him and without waiting further for service of warrants, the case was taken for hearing and disposed of. As he was out of station in connection with his business, therefore he did not know any thing even about issuance of warrants against him on previous dates. The accused appellant could not appear before the Court althrough, as he was away in connection with his business and had no knowledge about the proceedings and dates. The appeal has been decided at the back of the petitioner and without any notice to him. He has not been given an opportunity of being heard. The matter could not have been disposed of in absence of the appellant or his counsel, having regard to the dictum of law laid down by the Apex court. It was obligatory upon the court to appoint a counsel at State expenses to argue the matter on behalf of the appellant accused. The impugned order does not show that the record has been perused and the case has been decided on merits, as the appeal could not have been disposed of in default and in any case without spelling the reasons and discussing merits of the case.
4. The counsel for respondents State Mr. M.H Attar, AAG submits that as the accused appellant failed to appear in the case for very long priod spreading over two decade and his failure to address/argue before the court despite repeated opportunities to accused-appellant, the matter was heard. The appellant- accused by his own admission was represented by Mr. Z.A Shah, a senior Advocate, who even did not appear to take up his case at the last moment. The matter could not have been made to linger on any further. The appeal record including record of the trial court has been thoroughly examined and perused by court, as would even appear from the judgment. The possible defence put forth in the memo of appeal has been dealt with analysed and discussed on merits. The evidence has been analysed, evaluated discussed and re-appreciated. The entire case is given look and considered. The appeal has been dismissed on merits. Therefore, it cannot be said that the case has been disposed of in routine for default or for just non-appearance of petitioner/ appellant. The appellate court in exercise of powers under Section 423 Cr.P.C upon hearing respondent State upheld the conviction and sentence. No review is competent against such decision of appellate Court. Under the garb of re-admittance of appeal, further hearing cannot be given under law. There is nothing like Re-admitting of appeal, once the criminal appeal like is dismissed on merits, may be in absence of appellant, accused. Giving a defence counsel in criminal matter to accused-appellant is not a rule of universal application, more so, when accused-appellant had the services of a senior eminent counsel (Mr. Z.A Shah) available.
5. Section 423 Cr.P.C lays that, while disposing of the criminal appeal after sending for the record the same shall be perused and the appellant shall be given an opportunity and in case he fails to appear the court has to examine the whole matter and if it comes to conclusion that there is no sufficient ground to interfere with the impugned judgment and order, it can dismiss the appeal, not withstanding, that the appellant-accused has failed to appear and avail the opportunity awarded to him by the court.
Section 369 Cr.P.C provides that except as provided by this code or/any other law in force or in the case of the High Court by the Constitution of High Court no court when it has signed its judgment shall alter or review the same, except to correct clerical error.
6. There is neither error apparent on the face of the record nor the case is vitiated by any clerical error. Section 561-A Cr.P.C cannot be invoked to admit the appeal for rehearing in view of the express provision in the code prohibiting alteration or review of the judgment once signed by the court.
7. Section 423(1) of code of Criminal Procedure 1973 provides for various powers of appellate court in disposing of appeal and reads as :-
"423 (1). 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, or may....."
8. Obviously, what the appellate court is mandated to do in the criminal appeal is to send for the record if record is not available in appellate court peruse such record and provide accused/ appellant public prosecutor an opportunity of being heard and in case he appears, hear him and in the eventuality of his failure to appear, the court is still to decide the appeal on merits after perusal of record and on consideration if the court adjudges and concludes that no sufficient grounds exist for interference it is to dismiss the appeal. It is not in all case obligatory for the court to wait for the accused even if he does not appear as in this case for decades together. The words "if he appears" is quite significant to convey that accused may not appear yet the appeal can be disposed of. In other words, accused appellant is to be awarded an opportunity of being heard. Here the accused was represented as admitted by him by counsel Mr. ZA Shah, yet neither the counsel nor the accused appeard to prosecute/ pursue the appeal. The accused's plea that he was away with his business and did not know about the dates, appears an after thought and a plea devoid of merit. Contextually, Section 369 Cr.P.C reads as under :--
"369. Court not to alter judgment:- Save as otherwise provided by this Code or by any other law for the time being in force or in the case of the High Court, by the constitution of High Court, no Court when it has signed its judgment shall alter or review the same except to correct clerical error".
9. Combined reading of Section 423 Cr.P.C & Section 369 Cr.P.C. would show that normally the court after it has signed the judgment is not to alter the judgment except to correct clerical error. It is not the case of correction of a clerical error. The scope of Section 369 Cr.P.C was considered in Prem Singh v. State and Anr. (1982 KLJ 55) by a Full Bench of this court. The Bench while relying on the judgment of Supreme Court in State of Orissa v. Ram Chand Agarwal (AIR 1979 SC 87) held that Section 369 of the code of Cr. Procedure precluded the High Court from altering or reviewing a judgment passed in exercise of its appellate or revisional jurisdiction when once it has signed it . The court further ruled that Section 561-A Cr.P.C cannot be invoked to exercise power which are inconsistent with any specific provision of the code, since Section 369 Cr.P.C statutorily lays the prohibition, therefore, the High Court has no power to alter or review its judgment. The observation of the court that in case an order or judgment is passed without hearing the party aggrieved of the order, the order or judgment is nulity and can be recalled is in respect of an order or judgment passed by the trial court found a nulity and not in respect of order and judgment passed by the High Court in Appeal or revision in compliance with the procedure provided there for. As Section 423 Cr.P.C provides the procedure and further (at the most) provides that the accused appellant or public prosecutor, if he appears is to be heard, thereby implying providing of opportunity to be heard. The principle of natural justice of not being heard, so as to make the order nulity is not attracted to this case. Appeal in absence of the accused is to be disposed of on merits and not to be dismissed in default. When the counsel engaged by the appellant in criminal appeal has not turned up there is no obligation for the court of appeal to wait for him or to adjourned the case awaiting his presence. It is open to the court to determine the matter whether a case requires or does not requires legal assitance at the State expenses to argue for the accused. It depends on facts circumstances and relevant consideration on conspectus of the case, whether to appoint a counsel at State expenditure or not. it is not a universal Rule of legal compulsion that no appeal can be disposed of without assistance by the counsel or in absence of the accused Contexually, the nature and graveness of the accusation, range of sentence imposed, conduct of accused, longivity of pendency of case, etc, are the circumstances that the court is to consider. In Rishi Nandan Pandit v. State of Bihar (AIR 1999 SC: 3850) Supreme Court observed:-
"4. When the counsel engaged by the Appellants in a criminal appeal does not turn up there is no obligation for the court of appeal to wait for him or even to adjourn the case awaiting his presence. The earlier view of a two Judge Bench of this court in Ram Naresh Yadav v. State of Bihar, AIR 1987 SC: 1500: (1987 Cri LJ 1856) that in such a situation the court could only dismiss the appeal for default has been held erroneousby a three Judge Bench of this court in Bani Singh v. State of U.P (1996)4 SCC: 720; (1996 AIR SCW 2986: AIR SC 2439: 1996 Cri LJ 3491) A..M Ahmadi CJ speaking for the Bench has stated the legal position thus (para 14 of AIR) "The law clearly expects the appellate court to dispose of the appeal on merits not merely by pe-
rusing 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 records. Therefore, with respect we find it difficult to agree with the suggestion in Ram Naresh Yadav case AIR 1987 SC: 1500: (1987 Crl.LJ 1856) that if the appellant or his pleader is not present the proper course would be to dismiss an appeal for no prosecution." "9. As a matter of legal position the court is not precluded from perusing the records and come to its own conclusion unaided by any legal practitioner to project the points favourable to the accused when the counsel engaged by them does not turn up to argue. But the three Judges Bench of this court indicated in Bani Singh v. State of Uttar Pradesh (1996) 4 SCC 720: (1996 AIR SCW 2986: AIR 1996 SC 2439: 1996 CRi. LJ 349) that it is a matter of prudence the court, may, in an appropriate case, appoint a counsel at the state's expense to argue for the cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisiable to seek the assistance of a legal talent."
10. In this case, this court has to take the appeal and decide it in the circumstances referred in the begining of the judgment as under:-"Despite all possible efforts the appellant- accused has conspicuously failed to appear and prosecute the appeal for last over 18 year. After the appellant or his counsel failed to appear, all effort to serve appellant- accused have proved abortive. The accused appellant despite opportunity (ies) has not appeared. The case cannot be allowed to pend any further when the age of this appeal is over 23 years, no matter accused has opted not to appear and avail the opportunity."
11. The court has perused the record and heard the other side as would be seen from the judgment. The points projected in the memo of acquittal appeal and beneficial to the accused have been considered even in absence of legal aid not available on accused's side. The main features of the case have been gone into an discussed. The judgment is detailed enough to take up the plea and features of the case have been gone into an discussed. The judgment is detailed enough to take up the pleas and features beneficial to accused/appellant, touching sanction to prosecute, analysis and appreciation of evidence and weight to be given to all other relevant circumstances and evaluation of defence plea. It is on merits that the Appeal has been dismissed, even though un-aided by the legal practioner and the conviction and sentence of one year and fine of Rs. 200/- awarded under Section 5(2) read with 5(1) (d) of the Prevention of corruption Act 2006 is maintained. There is no error apparent on face of record to warrant any correction in the appellate court judgment. 12. The inherent power of court to allow re-hearing of criminal appeal is available where previous judgment sought to be reviewed was passed without jurisdiction or in violation of principle of Naturel justice or where judgment is obtained by any abuse of the process of the court (hooked to exercise of powers without jurisdiction). It is in this context that in Bombay Cycle and Motor Agency Ltd v. Bhagwanprasad Ramraghubir Pandey and ors (1975 Cr. L.J 820) learned judges while sitting in a Division Bench held on the facts of the case before their Lordships that order of re-hearing afresh of the appeal was necessary. It may be noted that in this case, the order of confiscation of vehicle under Section 99 of Bombay Preservation Act passed by the Magistrate was confirmed in appeal and in revision by the High Court without the person claiming to be the owner of the vehicle being heard. It was in this backdrop that the court ruled that the High Court has the inherent power to hear the case afresh. Even so, the learned Judges of the Division bench concurred with the finding of the earlier Division Bench of that very court in A.H Satranjiwal v. State of Maharashtra (1972) 74 Bom LR742 (DB). In this latter case an application was made under Section 561-A of the code for readmitting and rehearing of the case, when the case came regularly on board and the appeal reached hearing but neither the petitioner nor his advocate was present and the Ld. Judges proceeded to hear the case on merits in absence of the petitioner and his advocates and in ultimate analysis the appeal was finally disposed of. Their lordships held that the appeal cannot be reheard as in the facts and circumstances of the case, it was neither a case of pronouncement of judgment without jurisdiction nor delivering the judgment in breach of principles of natural justice nor the judgment having been obtained by abuse of process of court.
13. In M.M Thomas v. Stateof Kerala and Ors. (AIR 2000 SC: 540) while dealing with the question of availability of the powers to High Court to review its own criminal Judgment the apex court ruled that the High Court as court of record as envisaged in Article 215 of the constitution has inherent powers to correct its record. The High Court is duty bound to keep its record correct as per law and the errors if any noted are to be corrected. High Courts powers is in its plenary jurisdiction as a court of superior status, as recognised by a nine judges Bench of the Supreme Court in Naresh Siridhar v. State of Maharashtra (AIR 1976 SC 1). While Section 369 Cr.P.C prohibits alterations or review of the judgment once it is signed barring correction of clerical error, Section 94 of Jammu and Kashmir constitution (pare materia with Article 215 of the Constitution) mandates that error apparent on the face of record can be corrected by High Court in exercise of its plenary jurisdiction as a court of record and pursuant to its constitutional duty to correct such error. Following this principle. Dr. Nissar Ali v. Dr. Mohammad Shafi Dar and Anr. (2001 SLJ : 199) was decided on its own facts, so as to hold that earlier judgment of High Court, not taking note of preposition that Section 197 is applicable to public servants removeable from office by Government is amendable to correction as an error the precursor to settling in motion due process of law. In this case te court accordingly corrected the error under Section 94 of the constitution with direction to trial court to proceed in the complaint under law.
14. In the above view of the matter and in the totality of facts and circumstances appearing on record the review for rehearing of the appeal is not permissible under law. The review petition has no merit and is dismissed. Accused to surrender to serve unserved portion of punishment steps to lodge him in jail to serve the remaining punishment be taken.