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SUPREME COURT OF INDIA
K.Ramaswamy : L.M.Sharma : M.N.Venkatachaliah
Kishansingh
Versus
State Of U.P.
Case No. : 183 of 1993
Date of Decision : 11/2/92
Advocates Appeared: Barqi Bahar U. : Suhrawardy Anis
Prevention of Corruption Act - Section 5 - Criminal Procedure Code - Section 374 - Rigorous imprisonment - Against his conviction – Jurisdiction - IT will be seen that the very opening words of the section require the appellate court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same. Ss. (2 provides that the court may call for the records of the case even at the preliminary stage - It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the court to press the appeal - As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in absence of the appellant and his counsel before dismissing the same summarily - In a case where the appellant has been to imprisonment and he is not in custody when the appeal is taken up for preliminary hearing, the appellate court can require him to surrender, and if the appellant fails to obey the direction, other considerations may arise – Held, question is, whether in the circumstances, the High court have dismissed the appeal for default, and if not, whether the prayer for restoration should have been allowed. As is manifest from the provisions of the Criminal Procedure Code, referred to above, the High court should have either examined the appellants petition of appeal and the judgment under challenge itself or appointed a counsel to assist the court, but could not have proceeded to dismiss the same on the ground that the advocate for the appellant was not present. The position of a Criminal is not the same as in a civil governed by the Civil Procedure Code. A comparison of the provisions of Section 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference. Rule 17, Order 41 of the Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non- appearance. In the case of a Criminal the corresponding provisions are not to be found in the Code of Criminal Procedure. On the other hand the Code in express terms requires the matter to be considered on merits - Thus a Criminal cannot be dismissed for non-prosecution, and this is the reason as to why the Criminal Procedure Code does not contain any special provision like Order 41, Rule 19 - Law was correctly laid down in State of Bihar a case governed by old Criminal Procedure Code. The position in this regard remains the same under new Code - Even earlier High courts were following this very principle is clear from the observations in Emperor Nona v. State of In Emperor was observed thus - That law requires that before an appellate court dismisses an appeal summarily, it shall read a copy of the judgment, and then if there is no sufficient ground for interfering, it may dismiss appeal summarily - It was emphasized that the dismissal of the appeal shall depend on the exercise by Judge of his independent and impartial mind after he has read a copy of the judgment, and not upon the failure of the accused to press his appeal – Appeal demised
(1) THE petitioner was convicted by the Special Judge, Mathura under Section 5(2 of the Prevention of Corruption Act and was sentenced to two years rigorous imprisonment and a fine of Rs. 200.00. He filed an appeal before the Allahabad. High. court which was dismissed for default of the appearance of the petitioner and his counsel, when the appeal was called out for preliminary hearing. An application for restoration of the appeal made thereafter has also been dismissed by the order which has been challenged before this court in the present special leave petition.
(2) THE question which arises in this case is whether an appeal filed under 9 Section 374 of the Criminal Procedure Code by an accused against his conviction and sentence could be dismissed for the default of the appellant in prosecuting the appeal either in person or through counsel.
(3) NOTICE was issued in the special leave petition indicating that the matter would be finally disposed of at the notice stage itself. The office report indicates that notice has been served, but there is no appearance on behalf of the respondent-State. Special leave is granted.
(4) THE High court in its order dated 14/11/1990 dismissing the appeal for non-prosecution, relied upon the observations of this court in Ram Naresh Yadav v. State ofBihar, to the following effect: "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."
(5) THE learned counsel for the appellant has contended that the appeal could not have been dismissed for default on the ground of absence of the appellant or his counsel to appear and press the appeal. The argument appears to be well- founded.
(6) AS enjoined by Section 382 of the Code of Criminal Procedure, the appeal has to be filed in the form of a petition. Section 384 [omitting Ss. (3 and (4 which are not relevant in the present context] quoted below deals with summary disposal of appeal:
"384. Summary dismissal of appeal.-(1 If upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
PROVIDED that-
(A) no appeal presented under Section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;
(B) no appeal presented under Section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the appellate court considers that the appeal is frivolous or that the production of the accused in custody before the court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(C) no appeal presented under Section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2 Before dismissing an appeal under this section, the court may call for the record of the case."
(7) IT will be seen that the very opening words of the section require the appellate court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same. Ss. (2 provides that the court may call for the records of the case even at the preliminary stage. It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the court to press the appeal. As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits,
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