Karnataka High Court
K Basha vs I P Haridas on 2 January, 2024
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NC: 2024:KHC:142
CRL.RP No. 147 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 147 OF 2016
BETWEEN:
1. K BASHA
S/O NAGOOR BABU,
AGED ABOUT 29 YEARS,
R/O: C/O NAGARAJ,
NO. 46/, 4TH MAIN, 5TH CROSS,
VASANTHAPPA BLOCK,
GANGANAGAR, R.T. NAGAR POST,
BANGALORE 560032.
...PETITIONER
(BY SRI.B.V.MANJEGOWDA,ADVOCATE)
AND:
Digitally signed 1. I P HARIDAS
by SANDHYA S S/O. LATE. M.R. MENON,
Location: High AGED ABOUT 54 YEARS
Court of
Karnataka R/O. NO. 12, 5TH MAIN,
4TH CROSS, CPV BLOCK,
GANGANAGAR EXTN,
BANGALORE 560032.
...RESPONDENT
(BY SMT. ARCHANA K M, AMICUS CURIAE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED
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NC: 2024:KHC:142
CRL.RP No. 147 of 2016
11.06.2014 PASSED BY THE XVIII A.C.M.M., BANGALORE IN
C.C.NO.26515/2009 AND ORDER DATED 17.12.2015 PASSED
BY THE LVIII ADDL. CITY CIVIL AND S.J. AT BANGALORE BY
THE CRL.A.NO.780/2014 AND TO ACQUIT THE
PETITIONER/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.
THIS PETITION, COMING ON FOR HEARING,THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The Revision Petitioner/accused K. Basha has preferred this revision petition against the judgment of conviction and order of sentence dated 11.06.2014 passed in C.C.No.26515/2009 by the Court of the XVIII Addl.
Chief Metropolitan Magistrate, Bangalore (hereinafter referred to as 'Trial Court' for short).
2. That on 17.12.2015, the Appellate Court has passed the following order which reads as under:
"No representation by the appellant, at the 1st call. Respondent counsel is present. Passover. Call at 3.00 p.m. Smt. G.S. Jr. counsel for the appellant at 3.45 seeks time to address the argument. Earlier at 1.30 pm one advocate said to be the appellant side -3- NC: 2024:KHC:142 CRL.RP No. 147 of 2016 asked the adjournment. But this Court specifically told the learned advocate for the appellant, no adjournment will be given and go on with the arguments.
Thereby, the submission made by the learned advocate for the appellant cannot be considered and again this case is pass over.
Case again called at 4.35 p.m. No
representation by the appellant.
Therefore, the appeal is dismissed for non- prosecution. Office is directed to send back the LCR with copy of this order sheet for notice of the Trial Court."
3. That on 29.12.2015, the advocate for appellant filed application u/s 309 Cr.P.C. The Appellate Court has passed the following order on I.A. as under:
"The appellant filed the application under Section 309 of Cr.P.C. seeking advancement of the appeal.
As per the application filed the case taken up on board today that is on 29.12.2015.
Perused the records. This appeal was dismissed for non prosecution vide order dated 17.12.2015 on the ground that the appellant was not ready to address the arguments on merits.-4-
NC: 2024:KHC:142 CRL.RP No. 147 of 2016 Today learned counsel for the appellant filed memo praying to restore the criminal appeal for considering the arguments of the appellant and to adjudicate the matter on merits.
However, as this Court has dismissed the appeal for non prosecution, this Court has no power to restore the appeal. Therefore, the application is rejected.
4. In the memorandum of revision petition, the learned counsel for the revision petitioner has stated that the Appellate Court without affording sufficient opportunity to the petitioner herein to prosecute the appeal, dismissed the same for non-prosecution which is against to the provisions of Section 384 of the Code of Criminal Procedure as well as the direction of the Hon'ble Apex Court as well as this Court. Further, it is stated that when the appeal was presented on 26.07.2014, after several adjournments, matter was posted for arguments on 17.12.2015. Since the counsel on record was not keeping well he could not be personally present before the Hon'ble Court on that day, however the matter was -5- NC: 2024:KHC:142 CRL.RP No. 147 of 2016 attended by one of his colleague at 1.30 p.m. and again at 3.45 p.m. and prays for adjournments. Inspite of the same, the appeal was dismissed for non-prosecution.
However, when the counsel on record came to know about the dismissal of the appeal for non-prosecution, he filed a memo praying to restore the appeal for adjudication, the same was also came to be rejected.
The aforesaid fact clearly shows the participation of the petitioner herein before the Appellate Court in the above proceedings that he is diligent in prosecuting the appeal.
5. Further, it is submitted that the learned Sessions Judge has committed error in passing this impugned order. On all these grounds, he sought to allow this revision petition.
6. I have heard the arguments of Smt. K.M.Archana learned amicus curiae appearing on behalf of respondent and perused the records.
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7. Learned Sessions Judge ought not to have dismiss the appeal for non-prosecution which is contrary to provisions of Section 384 of Cr.P.C and the Appellate Court ought to have provide an opportunity to the appellant, but the appellant has filed application under Section 309 of Cr.P.C., however, the Appellate Court has rejected the same. Further, the learned Sessions Judge has erred in appreciating the evidence on record and arrive at wrong conclusion.
8. A perusal of the impugned order, it is crystal clear that the Appellate Court has not dismissed the case on merits but it has dismissed for non-prosecution which is contrary to the provisions of Section 385 of Cr.P.C. and the same is not sustainable under law. In this regard, I rely upon the decision of the Hon'ble Apex Court in the case of Bani Singh and Others vs. State of U.P. reported in AIR 1996 SCC 2439 wherein at paragraph Nos.14 to 17, it is observed as under:
-7-NC: 2024:KHC:142 CRL.RP No. 147 of 2016 "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 (AIR 1971 SC) 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 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-prosecution.
15. Secondly, the law expects the Appellate Court 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 -8- NC: 2024:KHC:142 CRL.RP No. 147 of 2016 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 if 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's case 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.
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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 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.
17. In view of the position in law explained above, we are of the view that the High Court erred in dismissing the appeal for non- prosecution simplicitor without examining the merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal on merits in the light of this judgment. The appeal will stand allowed accordingly. "
9. Hence, I proceed to pass the following:
ORDER i. Criminal revision petition is allowed.
ii. The orders dated 17.12.2015 and 29.12.2015 passed in Crl.A.No.780/2014
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NC: 2024:KHC:142 CRL.RP No. 147 of 2016 by the Principal Judge, City Civil and Sessions Judge, Bangalore are set aside.
iii. The criminal appeal No.780/2014 on the file of Principal Judge, City Civil and Sessions Judge, Bangalore is restored to file.
iv. Learned Sessions Judge is directed to provide an opportunity to both appellant and respondent to submit their arguments on merits. Thereafter, the learned Sessions Judge shall dispose of the appeal in accordance with law.
v. Registry is directed to send copy of this order along with records to the Principal Judge, City Civil and Sessions Judge, Bangalore.
vi. Registry is also directed to pay Rs.5,000/- as honorarium to Smt. K.M.Archana, amicus curiae for respondent.
Sd/-
JUDGE SSD List No.: 1 Sl No.: 54