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1996(5) Supreme 455
SUPREME COURT OF INDIA
A.M. Ahmadi, C.J.I., N.P. Singh and Sujata V. Manohar, JJ.
Bani Singh & Ors. -Appellants
versus
State of U.P. -Respondent
Criminal Appeal No. 82 of 1995
Decided on 9-7-1996
Counsel for the Parties :
For the Appellants : N.P. Midha and K.K. Gupta, Advocates.
For the Respondent : A.S. Pundir, Advocate.
Held : The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross- checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. (Para 13)
Further held : The law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. 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 adjourn 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. (Para 14)
JUDGMENT
A.M. Ahmadi, CJI - The short question that we are called upon to decide in this appeal is whether the High Court at Allahabad was justified in dismissing the appeal filed by the accused-appellants against the order of conviction and sentence issued by the trial court, for non-prosecution.
2. The facts relevant for our consideration can be briefly stated. On 13.6.1979, the VII Addl. Sessions Judge, Bulandshahar, recorded an order convicting the appellants under Sections 366 and 368 of the Indian Penal Code and sentenced them to rigorous imprisonment for three years with a fine of Rs. 100/- each. The appellants filed an appeal against this order in the High Court of Allahabad. On 18.6.1979, the appeal was admitted by the High Court and notice was issued. The High Court also issued an interim stay on the execution of the sentence and the realization of fine while granting bail to the appellants. On 28.11.1990, the matter came up for hearing before the High Court. While dismissing the appeal for non-prosecution, the Court recorded the following order :
"The List has been revised. No one present to argue the case on behalf of the appellant. Sri T.B.Islam A.C.A. is present on behalf of the State. In view of the law laid down in the case of Ram Naresh Yadav & Ors. v. State of Bihar, reported in AIR (SC) 1987, Page 1500, the appeal is dismissed for non-prosecution without going into the merits of the case."
The appellants preferred an appeal before this Court. On 19.1.1995, a Division Bench of this Court, while hearing the matter, examined the judgment in Ram Naresh Yadav & Ors. v. State of Bihar1 and came to the conclusion that it was in conflict with the earlier ruling of this Court in Shyam Deo Pandey & Ors. v. State of Bihar2. It, therefore, directed that the matter be heard by a larger bench. Subsequently, the matter was posted before this Bench.
3. At this juncture, it would be pertinent to make a brief reference to the relevant provisions of law having a bearing on this case. Chapter XXIX of the Code of Criminal Procedure, 1973 (hereinafter called Code ) comprising Sections 372-394 deals with Appeals . For the purpose of our examination, the relevant provisions are Sections 384-386. Section 384, which deals with summary dismissal of appeals, enables the Appellate Court to summarily dismiss an appeal "if upon examining the petition of appeal and copy of the judgment received", it "considers that there is no sufficient ground for interfering". Section 385 provides that "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" to the parties involved. It further provides that thereafter, the Appellate Court shall "send for the record of the case if such record is not already in Court" and "hear the parties". The relevant part of Section 386 provides that "after perusing such record and hearing the appellants or his pleader, if he appears, and the Public Prosecutor, if he appears", the Appellate Court "may, if it considers that there is no sufficient ground for interference, dismiss the appeal".
4. From the facts of the present case, it is clear that when the matter came up before the High Court, it admitted the appeal and, following the procedure laid down in Section 385 of the Code, issued notice to the State. In the circumstances, it is clear that Section 384 of the Code, which enables the High Court to summarily dismiss an appeal, is not applicable to the present case. Since the High Court proceeded to dismiss the appeal when it was next listed for hearing, it is clear that the provision applicable to these facts is Section 386 of the Code, though the order of the High Court does not mention the provision. From the order of the High Court, it is clear that upon finding the appellants and their pleader absent, it dismissed the appeal for non-prosecution without going into the merits of the case.
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