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..... 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 hear 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 is nothing in the law to preclude it from doing so‖. The Apex Court was not seized of a matter of the wilful abscondance of the appellant. In Bani Singh the High Court had not taken steps calculated to secure the presence of the appellant before it. On the contrary it had palpably adopted the less tedious course of simply dismissing the appeal. Bani Singh overruled Ram Naresh Yadav -vs- State of Bihar, AIR 1987 SC 1500 which had laid down that a criminal appeal could be disposed of on merits only after hearing the accused. En passant, the Court had observed that in order to enforce discipline the appeal could be dismissed for non-prosecution. In both these cases it is apparent that the High Court had not taken any steps to secure the presence of the appellant; in other words, that there was no material to manifest that the appellant had abandoned his appeal or had no intention to prosecute it. In Bani Singh attention of the Court was not drawn to the views of a Three-Judge Coordinate Bench in Kishan Singh -vs- State of U.P., (1996) 9 SCC 372 decided four years previously on 2.11.1992. Having carefully read through both the Judgments we think it important to clarify that Bani Singh does not deal or reflect upon the problem before us, namely, the options open to the Court which is faced with a recalcitrant appellant who is not prosecuting the appeal, having already violated the bail orders granted in his favour. Precisely, Kishan Singh deals with the options open to the Appellate Court at the preliminary hearing of an appeal. Nevertheless, the observations that have been highlighted by us in the passage below are pithy so far as the present case is concerned:
9. Our research and analysis on this aspect of the law would be incomplete without appreciating and assimilating the recent decision reported as Dharam Pal -vs- State of U.P., 2008 I AD (SC) 597 : AIR 2008 SC 920 : JT 2008 (1) SC 172. The contention which was formulated on behalf of the accused was whether a miscarriage of justice has been occasioned since the Appellant was not served with a notice of the appeal by the High Court, which nevertheless decided the appeal ex parte. Their Lordships referred to and applied Bani Singh. Reference was also made to CrPC's Chapter-XXIX in general and Sections 385 and 386 in particular. It needs to be emphasised that Section 482 of the CrPC was not even mentioned by learned counsel before their Lordships. So far as the course of appellate hearings before the High Court was concerned in Dharam Pal the learned counsel for the Appellants had expressed their inability to argue the case before the High Court. It was in those circumstances that their Lordships had perused the impugned Judgment of the High Court, found it to be well-merited and predicated on careful consideration of the material on record. It was observed that - ―The position, of course, would have been different if the High Court had simply dismissed the appeal without going into the merits. .... That being the position, it cannot be said that the High Court had ignored the basic principles of criminal justice while disposing of the appeal ex parte‖. Dharam Pal and for that matter Bani Singh or Shyam neither proscribe the invocation of Section 482 of the CrPC nor opine that dismissal of an appeal under Section 482, for good reasons which are lucidly spelt out, is improper. It has not hitherto fore even been contended that Section 482 of the CrPC should be applied to in circumstances of the wilful abscondance of the appellant/convict in contumacious and deliberate disregard and violation of the terms and conditions on which he was enlarged on bail.
11. In addition to the decisions of the Apex Court, we must also analyse previous judgments of Coordinate Benches. In Appeals against acquittal (which are commonly known as State Appeals) the respondents are required to seek bail even though the presumption of their innocence stands fortified by the failure of the prosecution to bring home their culpability. We do not propose to ponder on all the possible jurisprudential complexities of equating an acquitted person with an accused person facing trial. Accordingly, the decision in State -vs- Ram Gopal, 131(2006) DLT 156(DB) does not cause us concern for the simple reason that it is not the appellant who is the truant party. However, in Mohd. Tahir -vs- State, Crl. A. 452/1997 it was the appellant who, subsequent to the suspension of his sentence, failed to respond to the process of this Court. The concern of the Division Bench was whether the Appeal could be taken up for hearing in his absence or alternatively whether it could be dismissed for non-prosecution as neither the appellant nor any counsel on his behalf had put in appearance. Applying Bani Singh our learned Brothers concluded in the interlocutory Orders dated 1.10.2004 that the prudent course would be to appoint an amicus curiae to argue the appeal on behalf of the appellant. The Bench briefly noted Lakshmandas Chaganlal Bhatia -vs- State, AIR 1968 Bombay 400 but did not cogitate upon the implications of Section 482 of the CrPC and hence does not preclude or foreclose a wider consideration of the legal nodus. Harbir Singh -vs- State, 126(2006) DLT 469(DB) and Ram Gopal were decided by the Bench comprising Manmohan Sarin and Manju Goel, JJ.. Even in Harbir Singh there is no discussion of the law, leave aside Section 482 of the CrPC, as the Bench has recorded that - ―Before we end, it is necessary to say that the appellant Harbir escaped prison by unlawful means and has thereafter not been arrested. This Court in Mohd. Tahir has held an appeal in circumstances where the accused in absconding, can be decided by the Court in the absence of the appellant‖. As in the case of Mohd. Tahir the Bench hearing the State Appeal in Ram Gopal had only discussed Shyam, Ram Naresh Yadav and Bani Singh. Section 482 of the CrPC does not even find mention, even though it had been discussed by the Division Bench of the Bombay High Court in Lakshmandas.
23. We have endeavoured to digest the law pertaining to precedents for myriad reasons. Firstly, to appreciate the point that the binding nature of a precedent is only if the facts in the previous case can be substantially extrapolated to those with which the Court is dealing. Secondly, that the principles akin to per incuriam would render a decision irrelevant if a binding judgment or a provision of law has not been considered. Thirdly, that law is not immutable or static but on the other hand is expected to respond to and adapt with the changing needs of society. With this reiteration we shall discuss the views of Coordinate Benches of this Court on interlocutory order in Mohd. Tahir and Harbir Singh. The factual matrix in Harbir Singh is similar to what obtains before us. The other decision is Ram Gopal by the same Bench as in Harbir Singh with the difference that it was a State Appeal and, therefore, the Respondent was not a convict. Since we find it difficult to reconcile with the views in Harbir Singh and Mohd. Tahir of Coordinate Benches, our immediate reaction was to recommend and refer the controversy to a Larger Bench. Had these Judgments been brought to our notice at the commencement of the hearings, it is quite possible that we would have adopted this course. After hearing counsel in great detail we have not thought it necessary for the simple reason that these Benches did not consider Section 482 of the CrPC and in fact decided the matter only on Bani Singh.