Gujarat High Court
Salimbhai Gulam Rasul Vora vs State Of Gujarat on 2 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2511/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2511 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this Judgment in the Subordinate Judiciary.
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SALIMBHAI GULAM RASUL VORA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MR RAKESH PATEL, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/04/2018
ORAL JUDGMENT
RULE returnable forthwith. Mr.Rakesh Patel, the learned APP waives service of notice of rule for and on behalf of the respondents.
Page 1 of 25R/SCR.A/2511/2018 JUDGMENT By this application under Article 227 of the Constitution of India, the applicant - a convict accused has prayed for the following reliefs :
"(A) That the Hon'ble Court may be pleased to admit this petition.
(B) That the Hon'ble Court may be pleased to allow this Special Criminal Application by quashing and setting aside the judgment and order passed by learned Sessions Court, Kheda in Criminal Appeal No.30 of 2006 decided on 10.7.2015 whereby the appeal of the petitioner is ordered to be dismissed for default and also be pleased to restore appeal on file and be pleased to direct court below to decide same in accordance with law on its own merits in the interest of justice.
(C) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the order passed by learned Sessions Court, Kheda in Criminal Appeal No.30 of 2006 decided on 10.7.2015, in the interest of justice.
(D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
It appears from the materials on record that the applicant herein is serving with the GSRTC as a Driver. He was put on trial in the court of the learned 3rd Judicial Magistrate, First Class, Anand, for the offences punishable under Sections 323 and 504 Page 2 of 25 R/SCR.A/2511/2018 JUDGMENT of the Indian Penal Code as well as under Section 135 of the Bombay Police Act.
The prosecution against the applicant herein was registered as the Criminal Case No.7621 of 1999. The trial Court, by judgment and order dated 5th May 2005, convicted the applicant for the offence punishable under Section 323 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a term of six months and fine of Rs.500=00. The applicant, being dissatisfied with the judgment and order of conviction, preferred the Criminal Appeal No.30 of 2006 in the Sessions Court at Anand. The Criminal Appeal No.30 of 2006 came up for hearing before the learned 4th Additional (Adhoc) Sessions Judge, Anand, in the year 2014. However, neither the applicant as a convict appellant nor his counsel remained present before the appellate court for the purpose of proceeding with the Criminal Appeal. In such circumstances, ultimately, by order dated 10th July 2015, the learned 4th Additional (Adhoc) Sessions Judge, Anand, dismissed the appeal for non- prosecution and also ordered issue of a non-bailable warrant.
Although the non-bailable warrant was issued way back in the year 2015, yet it came to be served upon the applicant only about a month back. No sooner the warrant was served upon the applicant, then he was taken in custody. As on date, the applicant is in the judicial custody.
Mr.Pujara, the learned counsel appearing for the applicant, submitted that the appellate court committed a serious error in passing the impugned order. According to the learned counsel, the appellate court ought to have proceeded with the Criminal Page 3 of 25 R/SCR.A/2511/2018 JUDGMENT Appeal on merits by perusing the record of the trial court even in the absence of the appellant as well as the lawyer of the appellant. The learned counsel appearing for the applicant would submit that the court could have appointed an amicus curiae but, in any event, had no power or jurisdiction to dismiss the criminal appeal for non-prosecution.
In such circumstances referred to above, the learned counsel prays that there being merit in this application, the same be allowed and the impugned order be quashed.
On the other hand, this application has been vehemently opposed by Mr.Rakesh Patel, the learned APP appearing for the State. Mr.Patel submitted that no error, not to speak of any error of law, could be said to have been committed by the appellate court in passing the impugned order. Despite the issue of a non- bailable warrant by order dated 24th November 2014, the appellant failed to appear before the appellate court nor his lawyer appeared and, therefore, in such circumstances, the appellate court was justified in dismissing the conviction appeal by order dated 10th July 2015. It is submitted that it was not obligatory on the part of the appellate court to decide the appeal on merits in the absence of the appellant as well as his lawyer.
In such circumstances referred to above, the learned APP prays that there being no merit in this application, the same be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration in this application is, whether an Page 4 of 25 R/SCR.A/2511/2018 JUDGMENT appeal filed under Section 374 of the Code by an accused against his conviction and sentence could be dismissed for default on account of failure on the part of the appellant in prosecuting the appeal either in person or through a counsel.
'Conviction' means condemnation; finding of guilt; the finding of a person guilty of an offence; the judgment of guilty pronounced against the accused by the proper tribunal, and the mode prescribed by law. The word 'convict' (as noun) is defined in Tomlin's Law Dictionary as one who is found guilty of an offence by verdict of a jury. A conviction under the penal law is followed by sentence as the law provides. A conviction by itself can bring about disqualification in certain cases. Chapter XXIX of the Code deals with appeals. Appeal is the right of entering a superior court and invoking its aid and interpositions to redress the error of the court below (per Lord Westbury in Attorney General v. Sillem., 10 HLC 704. In Oxford Dictionary, Volume I, page 398 'appeal' is defined as the transference of a case from an inferior to a higher court or Tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweet, the term 'appeal' is defined as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court or court of appeal. In the Law Dictionary by Bouvier 'appeal' is denned as the removal of a case from a Court of inferior to one of superior jurisdiction for the purpose of obtaining a review and re-trial. Section 374 of the Code provides for appeals to the court of Session. Section 382 of the Code provides the mode of preferring an appeal in the form of a petition in writing presented by the appellant or his pleader and unless otherwise directed by the Court, it shall be Page 5 of 25 R/SCR.A/2511/2018 JUDGMENT accompanied by a copy of the judgment or order appealed against. Section 384 of the Code subject to the proviso provided therein enables the Court of appeal to summarily dismiss the appeal if such Court considers that there is no ground for interference. Appellate Court may before summarily dismissing the appeal call for records of the case.
Section 385 of the Code provides the procedure for hearing appeals which are not dismissed similarly (under Section 384). The Section reads, "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) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;
(iv) if the appeal is under Section 377 or Section 378, to the accused and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
2. The Appellant Court shall then send for the records of the case, if such record is not already available in that Court and hear the Parties:
Page 6 of 25R/SCR.A/2511/2018 JUDGMENT Provided that if the appeal is only as to the extent or the legality of the sentence the court may dispose of the ap-peal without sending for the record.
3. Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the court urge or to be heard in support of any other ground".
Section 386 of the Code requires the appellate Court after perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears if it considers that there is no sufficient ground for interfering to dismiss the appeal or to exercise any of the powers provided therein.
Thus, a reading of Sections 384, 385 and 386 of the Code shows that if an appeal is not dismissed summarily for which it is not essential that the record of the case has to be called for the appellate court has to give notice to the parties concerned about the date and time of hearing and such appeals could be disposed of only on merit after perusing the records. If on such perusal of records and hearing the party/counsel/Public Prosecutor if it appears to the court that there is no sufficient ground to interfere, the Court shall dismiss the appeal or it may, depending on the facts and evidence in the case exercise any of the powers mentioned in Section 386(a) to (d) of the Code. To be precise, if the appeal is not summarily dismissed under Section 384 of the Code, the Appellate Court is bound to call for the Page 7 of 25 R/SCR.A/2511/2018 JUDGMENT records (except when challenge is only as to the extent or legality of sentence alone), peruse the same and decide the appeal on merit.
Then, could an appeal which is not summarily dismissed under Section 384 of the Code be dismissed for default, as withdrawn or as not pressed without perusing the record of the case and without deciding the appeal on merit? In the wordings of Sections 384 to 386 of the Code, such a course is not permissible. Order XXIII of the Code of Civil Procedure provides for withdrawal or abandonment of a suit and since an appeal is a continuation of the lis, the said provisions could apply to appeals from decrees or orders as well. Such an enabling provision is not available in the Code. Section 321 of the Code permits the Public Prosecutor or the Assistant public prosecutor in-charge of a case with the consent of the Court to withdraw from the prosecution of any person but that power has to be exercised before judgment is pronounced.
Lord Thankerton held in King Emperor v. Dahu., 1935 AIR (PC) 89.
"where the appeal is not dismissed summarily, the Court is bound, in order to the disposal of the appeal, to comply with the provisions of Section 422 as to notice, and with the provisions of Section 423 as to sending for the record, if such record is not already in court....."
(Sections 422 and 423 of the old Code correspond to Sections 385 and 386 of the present Code). The issue came up Page 8 of 25 R/SCR.A/2511/2018 JUDGMENT for consideration before a Full Bench of Lahore High Court in Emperor v. Ghulam Mohammed, AIR (29) 1942 Lahore 296.; Dalip Singh, J. speaking for the Full Bench held:
".....From all these considerations, it appears to me that the Legislature have never contemplated any withdrawal of an appeal once lodged whether by the accused or the crown and that once the appeal has been lodged and admitted, it is not in the power of any court nor in the power of the appellant to allow the appeal to be withdrawn. The court is bound once the appeal is admitted to proceed under Section 421 or under Sections 422 and 423 to decide the appeal on merits...."
N.K. Sen, J. held in Biswanath Chakravarty v. Haripada De Dhara & Ors., 1959 AIR (Cal) 443.
"Once an appeal is admitted, it cannot be dismissed for non- prosecution nor can it be allowed, to be withdrawn. The Appellate Court is to proceed in accordance with the provisions contained in Section 423. In this connection it makes no difference whether the appeal is against an order of acquittal or conviction."
C.A. Vaidialingam, J, stated in Shyam Deo Pandey & Ors. v. State of Bihar, 1971 AIR (SC) 1606, that requirements as to perusal of the record is a condition precedent for a proper disposal of appeal either by dismissing the same or in any other manner contemplated in the section.
Page 9 of 25R/SCR.A/2511/2018 JUDGMENT Before adverting to the rival submissions canvassed on either sides, let me look into the impugned order passed by the appellate court. The impugned order is extracted hereunder :
"O R D E R The appeal of the appellant/accused is dismissed for non- prosecution.
A copy of the order be sent to the learned 3rd Judicial Magistrate, First Class, Anand. A non-bailable warrant be issued against the appellant/accused to undergo the sentence. Even after it if the accused is not found, then the procedure under Sections 82 to 85 be initiated for confiscating the properties of the accused.
This order has been pronounced in the open court on this 10th July 2015."
The Supreme Court in the case of Kishan Singh v. State of U.P., (1996)9 SCC 372. I may quote the relevant observations thus :
" 4. The High Court in its order dated 14th November, 1990 dismissing the appeal for non-prosecution, relied upon the observations of this Court in Ram Naresh Yadav and others v. State of Bihar, AIR 1987 SC 1500 to the following effect:
"The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Page 10 of 25 R/SCR.A/2511/2018 JUDGMENT Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel."
5. The learned counsel for the appellant has contended that the appeal could not have been dismissed for default on the ground of absence of the appellant or his counsel to appear and press the appeal. The argument appears to be well founded.
6. As enjoined by Section 382 of the Code of Criminal Procedure, the appeal has to be filed in the form of a petition. Section 384 (omitting sub-sections (3) and (4) which are not relevant in the present context) quoted below deals with summary disposal of appeal:
"384. Summary dismissal of appeal: (1) If upon examining the petition of appeal and copy of the judgment received under Sec. 382 or Sec.383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that :
(a) no appeal presented under Sec.382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;Page 11 of 25
R/SCR.A/2511/2018 JUDGMENT
(b) no appeal presented under Sec.383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c) no appeal presented under Sec.383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case."
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 Page 12 of 25 R/SCR.A/2511/2018 JUDGMENT 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 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 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 dismissed 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. 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 Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellate when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering Page 13 of 25 R/SCR.A/2511/2018 JUDGMENT 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 does not contain any special provision like Order 41, Rule 19. The law was correctly laid down in Shyam Deo Pandey & Ors. v State of Bihar, [1971] Suppl. SCR 133, 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 Others, 39 Criminal law Journal 890, and Ramesh Nanu v. State of Gujarat, 17 Gujarat Law Reporter 350. In Emperor v. Balumal Hotchand and others, it was observed thus:
"....that the law requires that before an Appellate Court dismisses and 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 judgment, and not upon the failure of the accused to press his appeal."
8. In view of the clear language of the Code of Criminal Procedure and the other reasons mentioned above we are constrained to hold that the observations of this Court in Page 14 of 25 R/SCR.A/2511/2018 JUDGMENT Ram Naresh Yadav, AIR 1987 Supreme Court page 1500, relied upon by the High Court in the case before us, cannot be treated as having laid down the law correctly. The High Court was, therefore, not right in dismissing the appeal on the ground of non-appearance of the appellant or his counsel and it should have, therefore, allowed the prayer of restoration of the criminal appeal under its inherent power. In the result, the present appeal is allowed, the orders of the High Court are set aside, the Criminal Appeal No. 1791 of 1979 before the High Court is restored and the matter is remitted to the High Court for consideration and decision on merits in accordance with law."
Thus, the ratio or the dictum of law explained by the Supreme Court in the case of Kishan Singh (supra) is that, it is the duty of the appellate court to examine the memo of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal. The duty of the appellate court to examine the memo of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal is not dependent on the appellant or his counsel appearing before the court to press the appeal. The appellate court owes a duty under Sections 382 or 383 to consider the appeal on merits, even in the absence of the appellant and his counsel, before dismissing the same.
The Supreme Court also explained that if the appellant has been sentenced to imprisonment and he is not in the custody when the appeal is taken up for preliminary hearing, the appellate court may require him to surrender, and if the appellant fails to obey the direction, the other considerations Page 15 of 25 R/SCR.A/2511/2018 JUDGMENT may arise, which may render the appeal liable to be dismissed without consideration of the merits.
The Supreme Court also compared the provisions of the Criminal Procedure Code with that of Order 41, Rules 11 and 17 of the Civil Procedure Code.
Article 21 of the Constitution of India mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is the duty of every court to zealously guard that fundamental right of every person. An illegal conviction and sentence and the consequent deprivation of the life and liberty of the convict is a violation of Article 21. When a grievance, that his conviction and sentence are illegal, is brought before the superior forum and it is duly lodged, it is the duty of that forum whether or not the convict is pursing his petition to consider whether his life and personal liberty has been deprived in accordance with the procedure established by law. Viewed in that line dismissal of the Criminal Appeals which were duly lodged and not summarily dismissed, without calling for and perusing the records of the case and otherwise than on merit merely for the reason that the appeals were not pressed is illegal being in violation of the mandatory provisions of the Code.
In this respect, a useful reference can be made to the judgments of the Apex Court in case of (i) Parsuram Patel v. State of Orissa, (1994)4 SCC 664, and (ii) State Khalili v. State of Uttar Pradesh, 1982 SCC 143.
Page 16 of 25R/SCR.A/2511/2018 JUDGMENT In Jeet Singh v. State, 1984 Cri.L.J. 437, a learned Single Judge of the High Court of Allahabad held as under :
"5. Section 385(1)(i), Cr.P.C., contains the provision under which the appellate court, after fixing a date of hearing, notifies it to an appellant by means of a notice. This Section says:-
"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."
6. The object of this section is manifest from the section itself. Its purpose is to inform the appellant or his pleader to arrange for argument in that appeal on that date. The words "or his pleader" in the section indicate that the information of hearing even to the "counsel" of the appellant would serve the purpose. This being the object of this section,the personal appearance of an appellant in his appeal on a date fixed is not essential even though the notice is served on him unless of course the court further requires his presence in court on that date by a specific direction to that effect. After service of a mere notice issued under Section 385(1)(i), Cr.P.C. he has not to appear on such a date for getting the appeal argued. This object of the section is also apparent from its heading which is as under:
Procedure for hearing appeals not dismissed Page 17 of 25 R/SCR.A/2511/2018 JUDGMENT summarily.
Thus, it is clear that this section only lays down procedure for "hearing appeals".
7. Therefore, the absence of an appellant on such a date would not entail forfeiture of either his bonds or those of his sureties. It is also clear from the subsequent Section 386, Cr.P.C. which contain a provision to be followed by the appellate court when an appellant does not appear on the date fixed for hearing of the appeal. This section is as under:
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....
8. The words "if he appears" in this section are significant. The hearing of an appellant in his appeal is envisaged only when "he appears" on the date of hearing, notified to him by the notice issued under Section 385(1)(i), Cr.P.C. Other wise the court will proceed to decide it after perusing the record.
9. This matter may be put differently also. Under the terms of surety bonds or a bond of an accused, the bonds are to be forfeited only when the accused does not appear when he is called upon to do so. Mere intimation of a date fixed for Page 18 of 25 R/SCR.A/2511/2018 JUDGMENT hearing of an appeal sent to the appellant under Section 385(1)(i), Cr.P.C. does not by itself constitute a direction of the court calling upon him to appear on that date personally. His absence on such a date cannot, therefore, be held to be a breach of the terms of the bonds of the accused and his sureties warranting their forfeiture."
The Supreme Court, in the case of Dharam Pal v. State of Uttar Pradesh, (2008)17 SCC 337, explained the provisions of Sections 385 and 386 of the Code of Criminal Procedure and observed as under :
"6. The learned counsel for the appellants, at the first instance, submitted that since the appellants were not served with a notice of appeal in the High Court, the appeal was disposed of by the High Court ex-parte without affording any opportunity of hearing to the appellants. Our attention was drawn to the decision of this court in Bani Singh Vs. State of U.P. [(1996) 4 SCC 720] to drive home the point that the High Court was duty bound to ensure proper compliance with Sections 385 and 386 of the Code in disposing of criminal appeals when the accused did not appear and that the Appellate Court must dispose of the appeal on merits after perusal and scrutiny of the record. Relying on the decision of this court in the case of Bani Singh [supra], the learned counsel for the appellants sought to argue that the High Court was not justified in deciding the appeal on merits without giving any opportunity of hearing to the appellants. He submitted that a further date for hearing the appeal ought to have been fixed by the High Court and Page 19 of 25 R/SCR.A/2511/2018 JUDGMENT not having done so, it had acted illegally and with material irregularity in deciding the appeal on merits. This submission of the learned counsel for the appellants was, however, contested by the learned counsel appearing on behalf of the respondent. The learned counsel for the respondent submitted that the High Court was fully justified in deciding the appeal on merits even in the absence of the learned counsel for the appellants as from the record, it would be clear that the notice of appeal was duly served on the appellants and inspite of such service of notice and also in view of the fact that a learned advocate had appeared for the appellants, it would not be justified to say that a further date ought to have been fixed by the High Court for hearing of the appeal. The learned counsel for the respondent further contended that the High Court had followed the principles laid down by this court in Bani Singh's case [supra] and disposed of the appeal on merits in the absence of the appellants or their learned counsel. In Bani Singh's case [supra], this court observed in paragraph 10 as under: -
"10. In Shyam Deo 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 385-386 of the present Code), this Court in paragraph 19 of the judgment held as under (SCC p. 861, Para 19) Page 20 of 25 R/SCR.A/2511/2018 JUDGMENT "The consideration of the appeal on merits at the 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 be 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 that whether 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.
Page 21 of 25R/SCR.A/2511/2018 JUDGMENT
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."
7. 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, the bail was 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 XXIX 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) ...
(iii) ...
(iv) ...
(2) The Appellate Court shall then send for the record Page 22 of 25 R/SCR.A/2511/2018 JUDGMENT 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 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 the case of Bani Singh [supra], 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. 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 Page 23 of 25 R/SCR.A/2511/2018 JUDGMENT 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.
8. That apart, the decision of this court in Bani Singh's case [supra] 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 Sections 385 and 386 of the Code in disposing of criminal appeals. While dealing with the procedure for disposing of a criminal appeal, this court in Bani Singh's case [supra] 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 Page 24 of 25 R/SCR.A/2511/2018 JUDGMENT 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."
In the result, this application is allowed. The impugned order passed by the learned 4th Additional (Adhoc) Sessions Judge, Anand, is hereby quashed and set aside. The Criminal Appeal No.30 of 2006 is ordered to be restored to its original file. As the applicant is in the judicial custody pursuant to the non- bailable warrant executed against him, it shall be open for the applicant to file an appropriate application before the court concerned for bail. If any such application is filed, the court concerned shall look into the same and pass an appropriate order in accordance with law at the earliest.
Direct service is permitted.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 25 of 25