Patna High Court
Shiv Sahni & Ors vs The State Of Bihar on 16 August, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1400 of 2017
Arising Out of PS.Case No. -6 Year- 2006 Thana -PURAINI District- MADHEPURA
===========================================================
1. SHIV SAHNI, SON OF LATE BRIHASPATI SAHNI,
2. KABUTRI DEVI, WIFE OF SHIV SAHNI,
3. TETRI DEVI, W/O SHANKAR SAHNI,
4. SAKUNTALA DEVI, W/O KAILASH SAHNI.
ALL RESIDENT OF VILLAGE- PURAINI BAZAR, P.S.- PURAINI, DISTRICT- MADHEPURA.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
WITH
=========================================================== Criminal Appeal (SJ) No. 1075 of 2017 Arising Out of PS.Case No. -603 Year- 2011 Thana -SC/ST District- GOPALGANJ ===========================================================
1. BIRENDRA SAH SON OF KANCHAN SAH.
2. SARVANAND SAH SON OF KANCHAN SAH
3. GAJENDRA SAH SON OF SARVANAND SAH
4. PANPATTI DEVI WIFE OF BIRENDRA SAH ALL ARE RESIDENT OF VILLAGE-RUPANCHHAP, P.S.-BARAULI, DISTRICT-GOPALGANJ .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S WITH =========================================================== Criminal Appeal (SJ) No. 1168 of 2017 Arising Out of PS.Case No. -87 Year- 1999 Thana -GHANSHYAMPUR District- DARBHANGA =========================================================== SHYAM CHANDRA BADHAI SON OF LATE BISHUNDEO BADHAI, RESIDENT OF VILLAGE - BAUR, P.S. GHANSHYAMPUR, DISTRICT -
DARBHANGA
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
WITH
=========================================================== Appearance:
(In CR. APP (SJ) No.1400 of 2017) For the Appellant/s : Mr. Pawan Kumar, Adv.
For the Respondent/s : Md. Shyed Ashfaque Ahmad, APP (In CR. APP (SJ) No.1075 of 2017) For the Appellant/s : Mr. Jitendra Kuamr Shrivastava, Adv. For the Respondent/s : Mr. Sadanand paswan, APP (In CR. APP (SJ) No.1168 of 2017) For the Appellant/s : Mr. Bikram Singh, Adv.
Mr. Kaushal Kumar Jha, Adv.
Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 2
For the Respondent/s : Md. Zeyaul Hoda, APP
=========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER Date: 16-08-2017
1. On account of common legal jugglery involved in these appeals the same is being disposed of by a common order.
2. Either on account of non-sensitization of the learned lower court with regard to mandate of Section 389(3) of the Cr.P.C.
or feeling completely detached with the stage after recording conviction allowing casual way of treatment which became night mare for the appellate court to deal with the matter in terms of Chapter XII Rule-8 of the Patna High Court Rules whenever appeal comes for admission and appellant is found availing provisional bail.
The trial court are passing post conviction orders in casual manner failing to identify (a) In what manner order of provisional bail should be passed (b) should be for specified period sufficient for convict to file an appeal. In likewise manner, the office also happens to be careless while checking the memo of appeal in identifying the mistakes having on that very score at the end of trial court so that, within the stipulated period which happens to be sixty days in terms of Article 115 of the Limitation Act defect is removed so that, the appellant/convict should not found harassed moving this Court to that court on that very score. The present controversy relates with the aforesaid eventuality in all the appeal.
Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 3
3. In order to negate the aforesaid lapses on the part of the trial court as well as office, the effect of provisional bail sometimes became matter of concern due to efflux of time and so, in order to ward off such eventualities, the learned counsels have been requested to assist the court over the issue whether during course of hearing over admission matter how the controversy over proper identification of order in terms of Section 389(3) Cr.P.C. be relaxed, or be it corrected invoking inherent jurisdiction coupled with the fact that whether appellate court is empowered to exercise the same, whereupon it has been argued at Bar that scope of Section 482 Cr.P.C. is not available to the appellate court, as necessary provisions are there for proper guidance of the appellate court.
4. The Hon'ble Apex Court was confronted with a situation whereunder after admission of an appeal, learned counsel for the appellant did not appear to argue the appeal. In Surya Baksh Singh v. State of U.P. reported in (2014) 14 SCC 222, it has been held that the appellate court could take recourse of inherent power which found duly exercisable by the appellate court, but with constrain. For better appreciation, the relevant paras are quoted below:
"7. Last, but not the least in our appreciation of the law, Section 482 CrPC stands in solitary splendour. It preserves the inherent power of the High Court. It enunciates that nothing in CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary, firstly, to "give effect to any order under CrPC", words which are not to be Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 4 found in the Code of Civil Procedure, 1908 (hereafter referred to as "CPC"). Ergo, 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 CrPC makes the criminal court much more effective and all pervasive than the civil court insofar as ensuring obedience of its orders is concerned. Secondly, Section 482 clarifies that 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. 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 CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that 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. Thirdly, none of the provisions of CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of "justice", suffice it to say that it encompasses not just the rights of the convict, but also of the victims of crime as well as of the law abiding section of society who look towards the courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If the convicts can circumvent the consequence of their conviction, peace, tranquillity and harmony in society will be reduced to a chimera. Section 482 emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that Section 482 CrPC has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal courts.
17. The criminal justice delivery system is being held to ransom by convicts who have developed the devious and dishonest practice of escaping punishment or sentence by filing appeals, obtaining bail or suspension of sentence and thereafter disappearing beyond the reach of the arms of the law. The inherent powers under Section 482 CrPC, which the Supreme Court has on several occasions expounded to have existed from time immemorial, predating the present as well as the previous CrPC, must be pressed into action lest the already fragile policing and prosecuting branches of governance are rendered redundant. Since Section 482 CrPC was not considered by either of the three-Judge Benches of this Court, we have not found it necessary to resort to recommending the matter for being laid before a larger Bench. The facts and pronouncement in Bani Singh (1996) 4 SCC 720 cannot be extrapolated to the factual matrix before us. On the contrary the opinion in Ram Naresh Yadav (2014) 14 SCC 238 as well as in Kishan Singh (1996) 9 SCC 372 are available to us to ensure that preventive action is devised to combat the abuse of court process so that facilitative steps are taken to secure the Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 5 ends of justice.
18. Section 482 CrPC is of singular and seminal significance. The statutory provision which immediately comes to mind is Section 151 CPC because to a great extent the language is identical. We are juxtaposing the two sections for the facility of reference:
Section 482 CrPC Section 151 CPC "482. Saving of inherent "151. Saving of inherent powers of High Court.-- powers of court.--Nothing Nothing in this Code shall be in this Code shall be deemed deemed to limit or affect the to limit or otherwise affect inherent powers of the High the inherent power of the Court to make such orders as court to make such orders as may be necessary to give may be necessary for the effect to any order under this ends of justice or to prevent Code, or to prevent abuse of abuse of the process of the the process of any court or court."
otherwise to secure the ends of justice."
It is at once obvious that whereas Section 482 CrPC is available only to the High Courts, Section 151 can be resorted to at any stage of civil judicial proceedings in any of the hierarchical tiers. Secondly, the use of the word "otherwise" in Section 482 has the avowed effect of boundlessly broadening the boundaries of inherent powers of the High Court in exercise of its criminal jurisdiction. Thirdly, Section 482 can be employed to ensure obedience of any order passed by the Court because of the phrase "to give effect to any order under this Code".
19. State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 enunciates that in exercise of its inherent powers in criminal matters:
"the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. ... The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction". (SCC p. 703, para 7)
20. A three-Judge Bench clarified in Krishnan v. Krishnaveni (1997) 4 SCC 241 that although a second revision before the High Court after dismissal of the first one by the Court of Session is barred by Section 397(3), the inherent powers of the High Court under Section 482 are nevertheless available albeit with restraint so as to avoid needless multiplicity of the proceedings. This Court had opined that: (SCC p. 247, paras 8-9) "8. ... when the High Court notices that there has been failure of justice or misuse of judicial mechanism or Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 6 procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities....
9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and [it] is preserved by the Code."
21. Raj Kapoor v. State (1980) 1 SCC 43 considered the question whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. The view was that: (SCC p. 47, para 10) "10. ... Section 482 contradict this contention because nothing [in] the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code."
22. In State of Punjab v. Kasturi Lal (2004) 12 SCC 195 , after cautioning against reckless use of Section 482 this Court has observed: (SCC p. 199, para 10) "10. ... Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exists. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice."
23. Advanced Law Lexicon by P. Ramanatha Aiyar defines "justice" as:
"The exercise of authority or power in maintenance of right; vindication of right by assignment of reward or punishment; the administration of law or the form and processes attending it; the principle of just dealing."
24. It seems to us that it is necessary for 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. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 . After a comprehensive analysis of previous decisions Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 7 our learned Brother had distilled the legal position into six propositions: (SCC p. 734, para 19) "19.1. that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2. that the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; 19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.
19.5. 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 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; and 19.6. that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation."
25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the spectacle of the convict circumventing his conviction. (See Stirland v. Director of Public Prosecutions 1944 AC 315 , quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271. If the court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 CrPC, can also be pressed into service but with care, caution and circumspection."
5. In Kanaka Rekha Naik v. Manoj Kumar Pradhan reported in (2011) 4 SCC 596, wherein respondent was granted bail in connection with an appeal after suspending of sentence was sought for to be cancelled by the petitioner an intervener and for that, prayed invoking Section 482, Cr.P.C., which was rejected by the High Court Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 8 observing that 482 Cr.P.C. is not available for the same, the Apex Court held:
"11. In Srinath Prasad case 2004 Cri.L.J. 3635 (Mad), the High Court took the view that the intervener has no right to be heard while deciding the petition to suspend the execution of sentence pending appeal. In our view, the High Court in exercise of its power under Section 482 of the Code of Criminal Procedure can always pass order and may hear even an intervener while considering the application seeking suspension of the sentence pending the appeal. It is for the High Court to decide as to the circumstances and the person who could be permitted to intervene while hearing the applications seeking suspension of sentence filed by the convicted person. It is a matter of exercise of jurisdiction by the High Court. But it cannot be said that the High Court has no jurisdiction to permit any intervener opposing the suspension of sentence and grant of bail by it in exercise of its power under Section 389 of the Code.
12. It is true that:
"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. ... But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time."
(See Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421, SCC p. 422, para 3.)"
6. In Chandra Shekhar Bharti vs. State of Bihar reported in 2014 (2) PLJR 756 the Division Bench apart from others dealt with the principle decided by the Apex Court in Pamapathy vs. State of Mysore reported in AIR 1967 SC 286 and observed:
"21. The Supreme Court, in Pamapathy (supra) , while making a reference to the inherent power of the High Court, has observed that the inherent power of the High Court, mentioned in Section 561-A Cr.P.C., can be exercised for either of the three purposes specifically mentioned in the said Section. The inherent power cannot be invoked in respect of any matter covered by specific provisions of the Code of Criminal Procedure. It Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 9 cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code of Criminal Procedure. It is only if the matter, in question, is not covered by any specific provisions of the Code of Criminal Procedure that Section 561-A can come into operation. The Supreme Court pointed out, in Pamapathy (supra) , that no legislative enactment, dealing with procedure, can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in Section 561-A Cr.P.C., which does not confer any new powers on High Court, but merely recognizes and preserves the inherent powers previously possessed by it.
22. The Supreme Court, finally, concluded, in Pamapathy (supra), that in a proper case, the High Court had inherent power, under Section 561-A Cr.P.C., to cancel the order of suspension of sentence and grant bail to an appellant under Section 426 Cr.P.C.
23. The Supreme Court also distinguished, in Pamapathy (supra), the application of law laid down in the case of Lala Jairam Das (supra) and held that the question before the Judicial Committee, in Lala Jairam Das (supra) , was whether the Code of Criminal Procedure conferred any power on a High Court, in India, to grant bail to a person, who had been convicted and sentenced to imprisonment and to whom the Judicial Committee had granted special leave to appeal against his conviction and/or sentence and it was held by the Judicial Committee, on this limited aspect of law, that the High Courts had no such power under the Criminal Procedure Code and could not grant bail to a person, who had been convicted and sentenced to imprisonment and to whom the Judicial Committee had granted special leave to appeal against his conviction and sentence and the question, whether inherent power of the High Court could be exercised for cancellation of bail, was not the subject-matter of consideration before the Judicial Committee. The ratio decidendi of the decision of the Judicial Committee, in Lala Jairam Das (supra), was, therefore, held to be different.
24. The Supreme Court, in essence, upheld, in Pamapathy (supra) , the invoking of inherent power of High Court to cancel bail of a convicted person.
25. The ratio, which can be culled out from the case of Pamapathy (supra) , is that if a matter, in question, is not covered by any specific provisions of the Code, then, Section 561-A can come into operation, because no legislative enactment, dealing with procedure, can provide for all cases that can possibly arise and it is an, established principle that the Courts should have inherent powers, apart from the express provision of Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 10 law, which are necessary to their existence and for proper discharge of the duties imposed upon them by law."
7. In Rishipal Singh vs. State of U.P. reported in 2014(4) PLJR 118 (SC), it has been held:
"10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have thorough look at Section 482 Cr.P.C., which reads:--
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any orders of this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straightjacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C."
8. That being so, it is found and held that even during course of appeal, the High Court is empowered to exercise its inherent jurisdiction to prevent abuse of process of court as well as to secure ends of justice. That being so, the infirmities in the respective orders on the score of provisional bail are rectified/modified whereupon Criminal Appeal (SJ) No.1400 of 2017, Criminal Appeal (SJ) No. 1075 of 2017 are admitted and let respective L.C. records of Sessions Trial No.85/2008 arising out of Puraini P.S. Case No.6/2006, Trial No.73/2012 arising out of Hajipur SC/ST P.S. Case No.603/2011 be called for and for that office is directed to procure Patna High Court CR. APP (SJ) No.1400 of 2017 dt.16-08-2017 11 the same. So far provisional bail of respective appellants of Criminal Appeal (SJ) No.1400 of 2017, Criminal Appeal (SJ) No. 1075 of 2017, Criminal Appeal (SJ) No. 1168 of 2017 are concerned, directed to be confirmed till pendency of the respective appeals in terms of Section 389(1) of the Cr.P.C. However, the learned lower court as well as office should be cautious to ward of recurrence of such event in future.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 03.07.2017
Uploading Date 16.08.2017
Transmission 16.08.2017
Date