Madhya Pradesh High Court
Shahabuddin S/O Allauddin vs State Of Madhya Pradesh on 27 July, 1990
Equivalent citations: 1992(0)MPLJ101
ORDER K.L. Shrivastava, J.
1. This revision petition is directed against the appellate order dated 19-6-1990 passed by the Additional Sessions Judge, Neemuch in Criminal Appeal No. 152/1989 whereby the appeal preferred by the petitioner against his conviction and sentence under Section 304A, Indian Penal Code has been dismissed in default.
2. Section 385 of the Criminal Procedure Code, 1973 (for short 'the Code') provides that if the appellate Court does not dismiss the appeal summarily, it shall cause notice regarding the hearing of the appeal to be given to the persons therein enumerated. Section 386 ibid provides that after perusing the 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.
3. In the decision in Dr. Jainendra Kumar's case, AIR 1990 SC 1224 the Supreme Court set aside the High Court's decision rendered in appeal in the absence of the appellant's counsel. In the report reference has been made to Articles 21 and 39A of the Constitution of India and Section 304 of the Code. In the decision in Ramnaresh Yadav's case, AIR 1987 SC 1500 it has been observed 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. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf."
4. In the foregoing excerpt, the Supreme. Court has observed that the Court can dismiss a Criminal Appeal for non-prosecution. However, this observation is contrary to the observations in its earlier decision in Shyamdeo's case, AIR 1971 SC 1608 wherein with reference to Section 423 of the repealed Code of Criminal Procedure, 1898 (the corresponding provision is embodied in Section 386 of the current Code) it has been observed thus in paragraph-19 :-
"A. reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The Court has. either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. 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 facts 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."
The decision also points out why the summary dismissal of certain appeals should be with reasons. Reference in this connection may also be made to the decision in Dattu Ganu's case, AIR 1974 SC 387.
5. In view of the decision in Shyamdeo's case (supra), the revision petition is allowed and the impugned order, dismissing the appeal of the petitioner in default, is set aside. The case is remanded and it is directed that the appeal be heard and disposed of according to law. Record of the case be sent back to the Court below immediately.