Himachal Pradesh High Court
State Of H.P vs Vijay Kumar on 21 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 435 of 2011 Reserved on: 16.11.2023 .
Decided on: 21.11.2023
State of H.P. ...Appellant
Versus
Vijay Kumar ...Respondent
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 Yes.
For the Appellant :
rt Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Navlesh Verma and Ms. Sharmila Patial, Addl. A.Gs.
For the Respondent: Nemo.
Tarlok Singh Chauhan, Judge The instant appeal has been preferred by the State assailing the judgment dated 29.04.2011, passed by the learned Sessions Judge, Sirmaur District at Nahan, thereby acquitting the accused/respondent for the office punishable under Section 376 of the Indian Penal Code.
2. Leave to appeal was granted by the Court on 24.11.2011 and while admitting the appeal, bailable warrants against the respondent in the sum of Rs. 20,000/- with one surety in the like amount were issued. Despite various efforts made by the State, bailable warrants could not be served, therefore, the State filed an application being Cr.MP No. 1517 of 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 2 2018 for declaring the accused/respondent as proclaimed offender. The application was allowed on 25.10.2018 and the respondent was accordingly declared as proclaimed offender and .
thereafter proclamation as required under Section 82(2) of the Cr.P.C. also stood issued but the accused/respondent failed to put in appearance.
3. When the appeal came up for consideration before of the Court, the question arise as to whether the appeal against acquittal could be heard on merit in absence of the rt respondent/accused, who had been declared as proclaimed offender by appointing legal aid counsel/amicus curiae or is required to be adjourned sine die till the actual service of the accused/respondent.
4. It is after hearing arguments of the learned Additional Advocate General on this question, that the order came to be reserved.
5. At the outset, it may be observed that once leave to appeal is granted to the State, such appeal acquires the same status, as is conferred on the accused, who challenged the order of conviction and sentence in terms of Section 374 Cr.P.C. The presence of the accused even though he has been acquitted by the learned Trial Court is imperative before the Appellate Court, because, if after the order of acquittal, he flees, then he would be successful in defeating and deflecting the course of justice.
::: Downloaded on - 21/11/2023 20:33:27 :::CIS 3After grant of leave by the Appellate Court, it is for the accused to contest the appeal and support the order passed by the learned Trial Court.
.
6. It is more than settled position of law that an appeal is continuation of the Trial Court proceedings and the order of conviction or acquittal if it is challenged either by the accused or the State, as the case may be, will become final only after the of decision is given by the Appellate Court(s).
7. Whether the appeal against the acquittal can be rt heard against the respondent in absence of service of notice being effected upon him, came up firstly before a Division Bench of the Hon'ble Nagpur High Court in State Government Madhya Pradesh vs. Vishwanath Nidhanji and others AIR 1954 Nagpur 231, wherein it was held that before an appeal against an acquittal can be heard against the respondent, he must be served with a notice, even if he may be absconding and that would be no ground for hearing the appeal in his absence.
The Court may issue a proclamation against an absconding respondent, declaring him proclaimed offender but the same is not taken as substituted service.
8. It shall be apt to reproduce the relevant observations as contained in para-11 of the judgment, which read thus:-
11. These decisions of their Lordships leave no doubt whatsoever that before an appeal against an acquittal can be heard against a respondent, he must be served with a ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 4 notice under Section 422, Criminal P. C. It may be that a respondent may be absconding nevertheless that would be no ground for hearing an appeal in his absence. Where a person accused of an offence is absconding, Section 87, .
Criminal P. C. empowers the Court to issue a proclamation against him. Issue of a proclamation however is not equivalent to a substituted service. Indeed, as was pointed out in - 'Cri. Appeal No. 253 of 1949, D/- 21-7- 1950 (Nag) (A)', the Criminal P. C, does not set out the procedure to be adopted where personal service of the of notice under Section 422, Criminal P. C., cannot be effected on the accused person. If an accused person despite proclamation remains absent all that the Court rt can do is to attach his property. If an accused person was wanted for a trial before a Magistrate or the Court of Session and was absconding, all that could be done would be to record evidence in his absence under Section 512, Criminal P. C. Where the person is not the sole accused taut is tried along with one or more accused persons and is absconding then under Section 540A, Criminal P. C., the Judge or Magistrate has discretion either to adjourn such inquiry or trial, before him. or order that the case of the absconding accused be taken up or tried separately. Of course, neither Section 512 nor Section 540A, Criminal P. C., applies to an appeal. We have referred to them only to show the importance which is attached by the Court to the presence of an accused person in Court or to his representation before it. In our judgment in the absence of a provision which would enable a Court to proceed with an appeal in the absence of an absconding accused we have no option but to adjourn the case in so far as Vishwanath is concerned till such time as he is served or he appears before this Court.
::: Downloaded on - 21/11/2023 20:33:27 :::CIS 59. However, when an identical question came up for consideration before the Division Bench of the Hon'ble Gujarat High Court in State of Gujarat vs. Narubhai Amrabhai .
Chunara Vaghri 1997 Crl.J. 3479, the judgment rendered by the Hon'ble Nagpur High Court in Vishwanath Nidhanji's case (supra), does not appear to have been brought into their notice and it was held that wherein accused was absconding, then the of appeal against the acquittal could be heard even in his absence.
10. It shall be apt to reproduce the relevant observations rt as contained in paras 3 and 4 of the judgment, which read as under:-
3. Now. ordinarily, a matter cannot be said to be ready to be placed on the final hearing board till the date concerned accused against whom it is admitted is duly served and appears before the Court either personally or through his learned advocate. To this ordinary practice, one just and legal exception is carved out where the respondent when found to be absconding, and ultimately declared to be so by this Court there is indeed no question of serving any other notice upon him and matter can be said to be or deemed to be ready for all purposes ! When accused in one breath with manifest intention avoids service of notice upon him and successfully manages to do so. he in his second breach cannot be subsequently permitted to say that the appeal against him cannot be heard in his absence when he was not duly served. No person can be permitted to earn benefit out of his double standards - own wrong. In fact, under such circumstances not to enlist this appeal on the final hearing board, would be to indirectly play in the hands for some tricky, ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 6 scheming, mischievous respondent- accused who is always and quite obviously and out interested in seeing that the matter does not reach the final hearing and thereby successfully avoid final judgment for quite some .
indefinite time passed against him apprehending that acquittal order if quashed and set aside, he would be alone convicted and sentenced for the alleged offences and accordingly forwarded to jail to serve out the imprisonment. Such deliberately created mischievious situations wherein accused illegally has the upper-hand is of simply not permissible and cannot be countenanced that lightly. The principle of hearing the accused before any order of conviction and sentence is recorded against him rt cannot be permitted to be abused and stretched to such an illogical and absurd extent where he can bring the administration of justice to the grinding halt at his whims and caprice avoiding the notice to be served upon him keeping the Court at a safe distance, ultimately taking advantage of his own illegal absconsion.
4. In cases of the accused absconding before the trial Court, a provision is made in Section 299 of the Code which pertains to the recording of evidence even in absence of the accused. The said Section 299of the Code reads as under:
299. Record of evidence in absence of accused.
(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witness (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 7 or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
.
(2) If it appears that an offence punishable with death or imprisonment of life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any depositions so taken may be given in concerning the offence and any depositions so of taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits rt of India.
So far as the provisions regarding the final hearing of the appeal of the absconding accused is concerned, we have not been pointed out any specific provision as such in the Code itself empowering the Court to proceed, but at the same time, to appreciate this little tricky position, it would indeed be quite worthwhile to refer to Section 390 of the Code, which pertains to the arrest of the accused in appeal for acquittal. The said Section 390 of the Code reads as under :
390. Arrest of accused in Appeal from Acquittal.
When an appeal is presented under Section 378 the High Court may issue a warrant directing that the accused be arrested and brought before it or any sub-ordinate Court and the Court before which he is brought may commit him lo prison pending the disposal of the appeal or admit him to bail.
Now, by virtue of this Section 390 of the Code only, this Court has issued the bailable and thereafter the non- bailable warrant. In fact, as soon as this Court on perusing the impugned judgment and order of acquittal reached ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 8 the prima facie conclusion that there was sufficient ground for issuing notice to the respondent, his status as an accused person and proceedings against him stand revived. This is a settled legal position. Now once the .
status of the respondent as an accused person stands revived and when even in absence of the accused, as per the provisions contained in Section 299 of the Code, the evidence can be recorded by the trial Court in his absence by examining the witnesses, the appellate Court can certainly hear and decide the appeal in his absence more of particularly when the provisions contained in Section 82 of the Code are duly complied with and we are further satisfied on the basis of the affidavit filed by the rt concerned police officer that the accused is absconding.
11. Again similar question was subsequently come up before the Division Bench of the Hon'ble Delhi High Court in State vs. Ram Gopal and etc., 2006 Crl. L. J. 2805, which dissented from the view taken by the Gujarat High Court in Narubhai Amrabhai Chunara case (supra) and held that appeal against acquittal cannot be heard in absence of the accused by appointing an amicus curiae, as the State cannot be absolved of its obligation of serving the accused in appeal.
12. It shall be relevant to reproduce the relevant observations, which read thus:-
2. Before we consider the legal position in relation to the questions raised, it would be appropriate to set out the factual matrix in each of these appeals:-
(i) Crl.A.No.597/99 State Vs. Ram Gopal Respondent Ram Gopal, son of Ram Parkash, Village and PO Nawab Ganj, Distt. Gonda( U.P.) ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 9 had been tried for an offence under Section 302 IPC. Trial court on the evidence adduced, held that it could not be said that it was the respondent who had caused injury to deceased .
persons. The Court did not find evidence of the eye witness reliable and trustworthy and acquitted the respondent. State preferred the above appeal against acquittal. Vide orders dated 5.11.1999, delay in filing of the appeal was condoned, leave to appeal was granted and of appeal itself was admitted. Bailable warrants against the respondent in the sum of Rs.5,000/- were directed to be issued returnable on rt22.2.2000. The bailable warrants issued were received back unserved. Repeated attempts to execute bailable and non-bailable warrants on the respondent failed. Repeated adjournments numbering over 22 were given between 22.2.2000 to 4.4.2005. It has been reported by the police that respondent had not visited his village for the last 13 years and his house/jhuggi stood dilapidated and virtually demolished. Parents of respondent had already died. Proceedings for declaring the respondent as a proclaimed offender have been completed by affixing a proclamation next to his jhuggi.
Respondent has thus been declared a proclaimed offender enabling his arrest at any time without a warrant.
3. Let us summarize the status in the appeals as noted earlier:-
(i) Crl.A.597/1999-State Vs. Ram Gopal leave to appeal had been granted to the State. Bailable warrants issued for the respondent have remained unserved. He has been declared a ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 10 proclaimed offender after following the prescribed procedure. The respondent has not been served in appeal.
.
4. The question whether an appeal against acquittal of an accused, where the respondent/accused is not served in appeal can be heard, was considered by the Gujarat High Court in State of Gujarat Vs. Narubhai Amrabhai Chunara Vaghri - 1997 Crl.L.J.3479. Respondent had been acquitted for the offence under sections 367/323 read with section 34 of IPC after trial. State preferred an appeal which was admitted to hearing. Bailable warrants for the arrest of respondent/accused were issued. These remained rt unserved. The High Court took the view that when the accused with manifest manipulation, avoids service of notice upon him, he cannot be subsequently permitted to say that appeal against him cannot be heard in his absence. Non hearing of the appeal would not subserve the ends of justice. The court concluded that if the appellate court found sufficient grounds for entertaining an appeal, the respondent's status as an accused person stood revived and therefore the appellate court can finally hear and decide the appeal in his absence, after complying with the provisions of Section 82 Cr.P.C.
5. We find that the view taken by the Gujarat High Court in State of Gujarat Vs. Narubhai Amrabhai Chunara Vaghri (supra) is not in conformity with the judicial pronouncements of the Supreme Court. Reference is invited to a decision of the Supreme Court in Anwar Hussain Vs. The State of U.P. AIR 1981 SC 2072. This was a case where the Supreme Court on an appeal by Anwar Hussain set aside the order passed by the High Court. The High Court in an appeal filed by the State had set aside the order of ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 11 acquittal at the back of the appellant without serving notice on him. The Supreme Court held it to be clearly impermissible and remanded the matter to the High Court, with a direction to dispose of the said .
appeal in accordance with law after notice to the respondent.
6. Reference is invited to a Judgment of the High Court of Nagpur in the case titled State Government, Madhya Pradesh Vs. Vishwanath Nadhanji and others
- AIR 1954 Nagpur 231. It was held that before an of appeal against acquittal can be heard against the respondent, he must be served with the notice under section 422 Cr.P.C of the old Act or Section 385 of the rt present Cr.P.C. The court held that Criminal Procedure Code did not prescribe the procedure to be adopted where personal service of notice under section 422 Cr.P.C cannot be effected on the accused. If an accused person despite proclamation remains absent, his property can be attached. Section 512 Cr.P.C provides for recording of evidence when the accused is absconding. It does not apply to proceedings in appeal. In the absence of any provision, to enable a court to proceed in the absence of an absconding accused in an appeal, the court has no option but to adjourn the case till such time, the accused is served or he appears before the court. The Nagpur High Court in reaching the above conclusion relied on the decision of the Supreme Court in Dwarkaprasad Vs. The State - Criminal Appeal no.1 of 1950-date of decision 6th October, 1950. In Dwarkaprasad Vs. State, the matter had come up to the Supreme Court, when the acquittal of the accused who had not been served with a notice under section 422 Cr.P.C had been set aside. The Supreme Court held:-
::: Downloaded on - 21/11/2023 20:33:27 :::CIS 12"One thing, however, is clear, that although it was an appeal from a judgment of acquittal, no notice was served upon the accused as is required under S.422, Criminal P.C. The .
provision of the section, as its language shows, is mandatory and a compliance with it an essential preliminary to the hearing of the appeal. The arrest of the accused under a non- bailable warrant cannot be the substitute of a notice of appeal as is required under law.
of Neither the warrant, nor any return in token of its being executed is in the record and obviously the warrant could not contain the particulars rt which should be contained in a notice under S.422 Criminal P.C."
7. The High Court of Nagpur in State Government, Madhya Pradesh (supra) ruled that when an accused despite proclamation remained absent, all that the court can do is to attach his property. The upshot of the above decision of the Nagpur High Court relying on the Supreme Court in Dwarkaprasad's case is that, where in an appeal the accused/respondent has not been served, then by proclaiming him a proclaimed offender or appointing a lawyer as an Amicus Curiae, appeal cannot be heard. The case has got to be adjourned. In view of the above judicial pronouncements, we respectfully disagree with the view taken by the Gujarat High Court in State of Gujarat Vs. Narubhai Amrabhai Chunara Vaghri (supra).
8. We may also refer to Rambachan Hardwar Vs. The State of Gujarat - (1975) 3 Supreme Court Cases
139. The appellant/accused in the Special Leave Petition, challenged the judgment of the High Court of Gujarat. The High Court had set aside the order of ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 13 acquittal of appellant and two others on merit. The appellant claimed that he did not have notice of the hearing of appeal. Further, the Advocate who had been appointed as amicus curiae for him had no .
authority to represent him. This submission was not accepted as the record showed that the appellant had been served with and notice issued on the appeal filed by the State in the High Court indicating that appeal could be taken up for hearing at any time after the 14th day. The appellant even had intimated of that he was to engage a counsel for defending him. The Supreme Court held that there was no substance in the contention that the appellant had no notice of rt hearing of the appeal in the High Court or that the Amicus Curiae appointed by the High Court had no authority.
9. From the foregoing it would be seen that where the respondent/accused has been served with notice of appeal, the Court can proceed to appoint an amicus curiae and it cannot be urged by the respondent/accused that the said amicus curiae had no authority.
10. At this stage, we may also notice decision of the Supreme Court in relation to appeals under the Criminal Procedure Code. Reference is invited to Bani Singh and others Vs.State of UP - (1996) 4 Supreme Court Cases 720 and the earlier decision in Shyam Deo Pandey Vs. State of Bihar - AIR 1971 Supreme Court 1606 and Ram Naresh Yadav Vs.State of Bihar
- AIR 1987 Supreme Court 1500. Reference may also be made to a decision of the Division Bench of our Court in Mohd.Tahir @ Khuddar Vs.State - Crl.A.452/1997 decided on 1st October, 2004 In Shyam Deo Pandey Vs. State of Bihar (supra), the Supreme Court held that if an appeal was not ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 14 dismissed summarily and admitted to hearing, the same thereafter had to be disposed of on merits after perusal of the Court record. The appeal thus could not be dismissed for non-prosecution and even .
in the event of default the appellate court was to consider the case on merits after perusing the evidence on record and then pass a judgment. In Ram Naresh Yadav Vs.State of Bihar (supra) the Court had taken a slightly different view holding that the appellate Court could dismiss the appeal for non-
of prosecution in default of appearance of the appellant or the counsel. In Bani Singh and others Vs. State of UP (supra) the Court observed that the view taken in rt Shyam Deo Pandey's case appeared to be sound. In Bani Singh's case, the Supreme Court held that the plain language of Section 385 Cr.P.C. makes it clear that if the appellate Court does not consider the appeal fit for summary dismissal, it must call for the record. Section 386 Cr.P.C., mandates that after the record is received, the appellate Court may dispose of the appeal after hearing the accused or his counsel. These Sections do not contemplate dismissal of appeal for non-prosecution simplicitor.
The Court held that the law does not envisage dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the appeal.
11. The Division Bench of Court in Mohd. Tahir @ Khuddar Vs. State (supra) was considering the case where the appellant did not surrender after enjoying interim suspension of sentence. The appellant's counsel was also not available. The Court, in these circumstances, considered the situation arising where after filing of an appeal, the appellant either failed to engage a counsel to argue or the counsel ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 15 does not appear or declines to argue or the appellant fails to appear. It reached the conclusion that the appellate court would not dismiss the appeal for non- prosecution. The prudent course would be to appoint .
an amicus curiae who could then argue the matter on behalf of the appellant and thereby ensured that no aspect of the case remained obscure from the Court.
12. In view of the principles enunciated in Dwarkaprasad's case and State Government, of Madhya Pradesh Vs. Vishwanath Nadhanji and others (supra) and the judgments of the Supreme Court referred to in preceding paras, the following orders rt are required to be passed:-
i) Crl.A.597/1999-State Vs. Ram Gopal, Crl.L.P.54/2005 and Crl.L.P.83/2004-State Vs. Jai Kumar Das, where the respondents/accused having not been served at all even with the notice for leave to appeal against the order of acquittal, the said appeal/leave to appeal cannot be heard in the absence of the respondents by appointing of an Amicus Curiae, the State cannot be absolved of the obligation of serving the respondents in appeal. The aforesaid appeal and leave to appeal are accordingly adjourned sine die.
13. The judgment of the Delhi High Court was thereafter relied upon by that very High Court in State vs. Virender yadav & Anr. 2018 (8) RCR Cri. L. J. 381.
14. It would be noticed that even though the Hon'ble Delhi High Court has taken note of the judgment rendered by the ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 16 Hon'ble Supreme Court in Bani Singh & Ors. vs. State of U.P. (1996) 4 SCC 720, but the same has not been appreciated in its right perspective.
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15. In Bani Singh case (supra), the Hon'ble Supreme Court was dealing with the case where the appellant Bani Singh and others had been convicted by the 7 th Additional Judge, Bulandsahar, under Section 366 and 368 of the IPC and of sentenced to rigorous imprisonment for three years with fine of Rs.100/- each. The appellants filed an appeal against the order in rt the Hon'ble High Court of Allahabad. On 18.06.1999, the appeal was admitted by the High Court and notice was issued. The High Court also issued an interim stay on the execution of the sentence and the realization of fine while granting bail to the appellants. However, when the matter came up for hearing on 28.11.1990, the appeal came to be dismissed by the Hon'ble High Court for non-prosecution by observing as under:-
"The List has been revised. No one present to argue the case on behalf of the appellant, Sri T.B. Islam A.C.A. is present on behalf of the State. In view of the law laid down in the case of Ram Naresh Yadav & Ors. Vs. State of Bihar, reported in AIR (SC) 1987, Page 1500, the appeal is dismissed for non- prosecution without going into the merits of the case"
16. The appellants preferred an appeal before the Hon'ble Supreme Court and while examining the matter, the ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 17 learned Division Bench of the Court came to the conclusion that there was a conflict with two judgments rendered by the Hon'ble Supreme Court in Ram Naresh Yadav vs. State of Bihar AIR .
1987 SC 1500 and the earlier judgment of the Hon'ble Supreme Court in Syam Deo Pandey vs. State of Bihar AIR 1971 SC 1606 and the matter was accordingly referred to the larger Bench of three Hon'ble Judges.
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17. It is in this background that the Hon'ble Supreme Court after considering the provisions as contained in Sections rt 384, 385 and 386 of the Code, held that dismissal of appeal for default or non-prosecution without going into the merits of the case was illegal. It was held that the appellate Court must dispose of the appeal on merit after perusal and scrutiny of the record and must give a hearing to the parties, if present before disposal of the appeal on merit. Notice of the appeal under Section 385 of the Code and hearing under Section 386 must be given either to the appellant or its pleader and not to both. It was further held that the Appellate Court was not obliged to adjourn the matter, if the appellant and his counsel are present. The Appellate Court could dispose of the appeal after perusal of the record and the judgment of the trial Court, but If the appellant was in jail and his counsel is not present, the Court should adjourn the case to facilitate the appearance of the appellant. It was lastly held that in an appropriate case, the Court could ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 18 appoint a lawyer at State expenses to assist it and this would apply equally, if the accused is respondent.
18. It shall be apt to reproduce the relevant observations .
as contained in paras 7 to 16, which read thus:-
7. The Division Bench of this Court which referred this matter to us was of the view that these decisions, rendered by separate two-judge benches of this Court, are of in conflict with each other. Before we decide on this issue, we must closely examine the scheme envisaged by the Code in this regard. The relevant portions of Sections 385 and 386 of the Code are extracted as under:
rt
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 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 ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 19 sufficient ground for interfering, dismiss the appeal, or may --
xxxx xxxx xxxx .
8. Section 385(2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it `shall', after issuing notice as required by subsection (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call of for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned rt judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record.
This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that `after perusing such record' the court may dispose of the appeal.
However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard.
9. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 20 Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing?
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10. In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the Old Code (the corresponding provisions are Sections 385- of 386 of the present Code), this Court in paragraph 19 of the judgment held as under:
"The consideration of the appeal on merits at the rt stage of final hearing and to arrive at a decision on merits and 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 he 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 ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 21 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."
.
(Emphasis added)
11. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed.
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12. In Ram Naresh Yadav's case, this Court, without making a specific reference to Section 386 or any other provision of the Code and without noticing the ratio of rt Shyam Deo's case concluded thus:
"It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. 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 matters 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."
(Emphasis added) ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 22
13. What then is the area of conflict between the two decisions of this Court? In Shyam Deo's case, this Court ruled that once the Appellate Court has admitted the appeal to be heard on merits, it cannot dismiss the appeal .
for non- prosecution for non-appearance of the appellant or his counsel, but must dispose of the appeal on merits after examining the record of the case. It next held that if the appellant or his counsel is absent, the Appellate Court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. In Ram Naresh of Yadav's case, the Court did not analyse the relevant provisions of the Code nor did it notice the view taken in Shyam Deo's case but held that if the appellant's counsel rt is absent, the proper course would be to dismiss the appeal for non-prosecution but not on merits; it can be disposed of on merits only after hearing the appellant or his counsel or after appointing another counsel at State cost to argue the case on behalf of the accused.
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 non-prosecution simplicitor. 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 ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 23 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's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-
of prosecution.
13. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, rt 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 386then 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 ::: Downloaded on - 21/11/2023 20:33:27 :::CIS 24 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, of 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 rt 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 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 is 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.
::: Downloaded on - 21/11/2023 20:33:27 :::CIS 2518. Thus, what would be clear from the aforesaid exposition of law is that the Court in an appropriate case specially where the accused/respondent has been declared as .
proclaimed offender, can appoint a lawyer at State expense to assist it and need not wait for the respondent to be actually served as has otherwise been held by the Hon'ble Delhi High Court.
of
19. Therefore, while differing with the view taken by the Hon'ble Delhi High Court, we are clearly of the view that the rt instant appeal against acquittal can be heard on merit by appointing a legal aid counsel/amicus curiae and is not required to be adjourned till the actual service of the accused/respondent.
20. List the case for hearing on 05.12.2023 .
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) st 21 November, 2023 Judge (sanjeev) ::: Downloaded on - 21/11/2023 20:33:27 :::CIS