Madhya Pradesh High Court
Mohsin @ Mausam vs The State Of Madhya Pradesh on 2 December, 2021
Author: Vishal Dhagat
Bench: Vishal Dhagat
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
CRIMANAL APPEAL NO. 4393 /2017
Parties Name MOHSIN @ MAUSAM
VS.
THE STATE OF MADHYA PRADESH
Bench Constituted Single Bench
Order delivered By HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether approved for -
reporting
Name of counsel for parties For Appellant:Shri Ankit Saxena, Advocate.
For State: Shri V.S. Choudhary, Panel Lawyer.
Law laid down -
Significant paragraph -
number
(ORDER)
02/12/2021
Appellant has filed this appeal being aggrieved by judgement dated
10.10.2017 passed by learned Additional Sessions Judge, Bhopal (MP), in
Session Trial No.619/2015, convicting and sentencing the appellant under
section 392/34 of the Indian Panel Code and sentencing him to undergo R.I.
for three years and fine of Rs.1000/- and in default, to undergo further R.I.
for six months.
2. On 06.02.2019, this Court has passed an order to take coercive action
against appellant for securing his presence. Direction was also issued to
send him to jail for serving remaining part of jail sentence.
3. Matter came up for hearing today.
4. On perusal of record, it is found that warrants of arrest were issued
against appellant. On 19.01.2019, warrant was returned with a note that
appellant does not live on given address and he could not be found. Jail
sentence of appellant was suspended on 31.10.2017 and he was released on
2 CRA No.4393/2017
bail. 19.04.2018 was fixed for appearance of appellant before the Court.
None appeared for appellant/accused on the date so fixed for appearance.
On 20.07.2018, counsel for appellant prayed for time to keep the appellant
present in Court. Thereafter, when matter was listed, counsel for appellant
did not appear and non-bailable warrant was issued against the appellant.
Repeatedly, directions were issue to execute arrest warrant but appellant
could not be found. Appellant wilfully absconded after getting bail from this
Court.
5. Apex Court in case of Surya Baksh Singh Vs. State of Uttar Pradesh
reported in {(2014) 14 SCC 222} has given following direction:-
"(i) That the High Court cannot dismiss an appeal for
non-prosecution simpliciter without examining the
merits;
(ii) That the Court is not bound to adjourn the matter if
both the Appellant or his counsel/lawyer are absent;
(iii) That the Court may, as a matter of prudence or
indulgence, adjourn the matter but it is not bound to do
so;
(iv) That it can dispose of the appeal after perusing the
record and judgment of the trial court;
(v) The proviso to Section 368 Crpc enjoins that an order
of confirmation of death sentence shall not be made until
the period allowed for preferring an appeal has expired,
or, if an appeal is presented within such period, until such
appeal is disposed of. The presence or absence of the
accused/convict in the cases of Death References, makes
little difference since the High Courts are duty-bound to
give the matter their utmost and undivided attention.
Indubitably, the assistance of Counsel is very important
and helpful to the Court in coming to its conclusion. The
Legislature has cast an obligation on the Appellate Court
to decide an appeal on its merits only in the case of
Death References, regardless of whether or not an appeal
has been preferred by the convict.
(vi) 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
3 CRA No.4393/2017
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;
(vii) That the High Court can, while exercising inherent
powers in its criminal jurisdiction, take all necessary
steps for enforcing compliance with its orders. For
salutary reason Section 482 makes the criminal Court
much more effective and all pervasive than the civil Court
insofar as ensuring obedience of its orders is concerned.
Section 482 CrPC clarifies that the CrPC does not
circumscribe the actions available to the High Court to
prevent abuse of its process, from the inception of
proceedings till their culmination. The Judicial process
includes compelling a respondent to appear before it.
When the Court encounters a recalcitrant Appellant/convict who shows negligible interest in prosecuting his appeal, none of the Sections in Chapter XXIX of the CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. Passing such orders would eventually make it clear to all that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. none of the provisions of the CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice.
(viii) That 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 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.
(ix) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation."
6. Case in hand is covered by direction in Clause-viii, therefore, before dismissing appeal and exercising power under Section 482 of the Code of Criminal Procedure, I deem it fit to issue notice to surety who took the bail 4 CRA No.4393/2017 of appellant for forfeiture of the surety amount from them or to produce the appellant. If appellant does not appear then this Court will take action for dismissal of appeal.
7. Trial Court is directed to issue notice to surety for production of appellant. If surety fails to produce the appellant/convict then surety amount be forfeited and report be sent before this Court.
8. List the matter for report and presence of appellant after three months.
9. Registry is directed to send a copy of this order to the trial Court for compliance and necessary action.
(VISHAL DHAGAT) JUDGE shabana Digitally signed by SHABANA ANSARI Date: 2021.12.07 11:02:29 +05'30'