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1999(8) Supreme 692
Supreme Court of India
(From Patna High Court)
K.T. Thomas and S.S. Mohammed Quadri, JJ.
Rishi Nandan Pandit & Ors. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 1092 of 1999
(Arising out of SLP (Crl.) No. 3178 of 1999)
Decided on 15-10-1999
Counsel for the Parties :
For the Appellants : P.S. Mishra, Sr. Advocate, Chandra Shekhar, Ms. Ritu Singh, Ms. Sumita Rani Singh, R.P. Singh, Advocates.
For the Respondent : B.B. Singh, Advocate.
Held : As a matter of legal position the court is not precluded from perusing the records and come to its own conclusion unaided by any legal practitioner to project the points favourable to the accused, when the counsel engaged by them does not turn up to argue. But it is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the state’s expense to argue for the cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisable to seek the assistance of a legal talent. Bani Singh & Ors. v. State of U.P. 1996(4) SCC 720 : 1996(5) Supreme 455 : Followed. (Para 9)
In the instant case where twelve persons were convicted under Section 395 IPC to undergo rigorous imprisonment for 10 years and in appeal the counsel for the appellant’s did not appear when the case was taken up for disposal but the High Court dismissed the appeal on merit upholding the conviction and sentence.
Held : The present case seems to be a glaring example of failure of justice due to the absence of such legal assistance. Apparently a serious error has been committed by the learned Single Judge. He took into account a set of legally forbidden materials in reaching the conclusion. It is trite that whatever a witness had stated to the investigating officer can not be used as evidence. Section 162 of the Code of Criminal Procedure, which incorporated the aforesaid prohibition, permits such statements to be used only for the limited purpose of contradicting the witness in certain circumstances. If a counsel was appointed to argue for the accused (when the counsel engaged by the accused did not turn up) learned Single Judge could have, most probably, averted such a legal folly. The only course open to us in the aforementioned situation is to remit the case to the High Court for disposal of the appeal afresh in accordance with law. If no counsel for the accused turns up we request the High Court, on the peculiar facts of this case, to appoint an advocate at state cost to argue for the accused. (Paras 10 to 13)
Key Points: - The court is not precluded from perusing the records and deciding the case unaided when counsel does not appear, but it is prudent to appoint counsel at state expense if the sentence is of substantial range (!) (!) . - There is no obligation for the appellate court to wait for counsel; the appeal must be disposed of on merits by perusing the record (!) . - If the counsel engaged does not turn up, the court may appoint a counsel at state cost to argue for the accused (!) . - The present case is a glaring example of failure of justice due to absence of legal assistance, and the learned Single Judge committed a serious error by considering legally forbidden materials (!) (!) . - The case is remitted to the High Court for fresh disposal, and the appellants may apply for bail if the sentence remained suspended (!) (!) .
Judgment
Thomas, J.-Leave granted.
2. Twelve persons stand convicted by a Sessions Court under Section 395 of the Indian Penal Code and all of them were sentenced to undergo rigorous imprisonment for 10 years. All of them jointly filed an appeal before the High Court of Patna in August 1986. It appears that the High Court had suspended the sentence passed on the appellants pending disposal of the appeal. On 3.8.1998 the appeal stood listed before a Single Judge of the High Court. But the counsel engaged by the appellants did not turn up and hence learned Single Judge proceeded to hear the counsel for the State alone and then dismissed the appeal on merits. Appellants have therefore come up to this Court aggrieved by the aforesaid judgment of the High Court.
3. Shri P.S. Misra, learned Senior Counsel who argued for the appellants did not endeavour to justify the absence of the counsel for the appellants before the High Court when the case was called for arguments, nor are we interested in knowing why the counsel did not turn up. The appellants should have engaged a responsible counsel to argue their appeal in the High Court, as they now put the blame on the Advocate whom they engaged there. No doubt the High Court could have reported the dereliction of the Advocate to the Bar Council concerned for appropriate action in the matter.
4. When the counsel engaged by the appellants in a criminal appeal does not turn up there is no obligation for the court of appeal to wait for him or even to adjourn the case awaiting his presence. The earlier view of a two Judge Bench of this Court in Ram Naresh Yadav & Ors. v. State of Bihar1, that in such a situation the court could only dismiss the appeal for default, has been held erroneous by a three Judge Bench of this Court in Bani Singh & Ors. v. State of U.P.2. A.M. Ahmadi, CJ, speaking for the Bench, has stated the legal position thus:
“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 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. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case (AIR 1987 SC 1500) that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.”
5. Nonetheless the learned Chief Justice hastened to add that if the counsel is absent there is nothing in law which precludes the court of appeal from appointing another counsel at State’s expense to assist the court. The following observations of the bench are pertinent:
“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 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.”
6. The question before us is whether there was miscarriage of justice on the fact situation in this case as the learned Single Judge of the High Court proceeded to decide the appeal unaided by the arguments of an advocate at least by appointing as Amicus Curiae to assist the court. On a deeper analysis we feel that there was miscarriage of justice in this case. To substantiate it, we make a brief reference to the facts of the present case.
3. According to the prosecution story, a dacoity was committed in the house of the informant on the night of 16.11.1980, by a large number of dacoits who were armed with firearms. The commotion ensued a
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