IMPORTANT POINT
Action of accused of absconding and defeating administration of justice is no ground to dismiss appeal against conviction which was already admitted for final hearing, for non-prosecution without adverting to merits.

JUDGMENT

Abhay S. Oka, J.

The short issue involved in this appeal is whether an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 (for short, “Cr. P.C.”) can be dismissed on the ground that the accused is absconding.

2. The appellant was convicted for the offences punishable under Sections 302 and 120B of the Indian Penal Code (IPC) and Section 27(1) of the Arms Act, 1959. The maximum substantive sentence is of life imprisonment. Against the aforesaid judgment and order dated 04th September 2009 of conviction passed by the learned Additional Sessions Judge, Buxar in Sessions Trial No.338 of 2006, an appeal was preferred by the appellant before the High Court of Patna. On 29th October 2009, a Division Bench of the High Court admitted the appeal for hearing. When the application for suspension of sentence filed by the appellant came up before a Division Bench of the High Court, it was brought to the notice of the Court that the appellant was absconding. Thereafter, a non-bailable warrant was issued against the appellant. As the appellant was absconding, the Director General of Police announced a reward to the informant who could report the whereabouts of the appellant.

3. By the impugned judgment and order dated 25th August 2015, a Division Bench of the High Court of Patna dismissed the appeal without adverting to the merits of the appeal on the ground that the appellant was absconding.

4. The Division Bench held that though the remedy of an appeal is a valuable right, the appellant forfeited his right to prefer an appeal the moment he escaped from the custody and flagrantly abused the process of law. The learned Judges held that such deliberate act on the part of the appellant amounts to defiance of the criminal administration of justice. The Division Bench referred to a decision of this Court in the case of Shyam Deo Pandey & Ors. v. State of Bihar, (1971) 1 SCC 855. The Division Bench referred to another decision of this Court in the case of Surya Baksh Singh v. State of Uttar Pradesh, (2013) 2 SCALE 492 = (2014) 14 SCC 222 as well as a decision of the same High Court in the case of Daya Shankar Singh & Anr. v. State of Bihar, 2004 SCC Online Pat 1189. After adverting to another decision of this Court in the case of K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721 the Division Bench held that the circumstances of the case before it were exceptional and, therefore, the Court was required to deviate from the settled principle of law that once the appellate court has refused to dismiss the appeal summarily, the same must be heard on merits.

5. After having heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent-State, for the reasons which are recording, we have no option but to set aside the impugned judgment and remand the appeal for fresh consideration of the High Court.

6. In the impugned judgment, the Division Bench of the Patna High Court has itself recorded that it is deviating from the settled position of law. Such an approach cannot be countenanced. The well settled law can be found in the decision of this Court of a Bench consisting of three Hon'ble Judges in the case of Bani Singh & Ors. v. State of U.P., (1996) 4 SCC 720. The issue before this Court in the said case was whether the High Court was justified in dismissing an appeal against conviction for non- prosecution. This Court noted the conflict in the views expressed by two co-ordinate Benches of this Court in the case of Shyam Deo(supra) and Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500. Paragraphs 13 to 15 of the said decision are relevant, which read thus :

"13. What then is the area of conflict between the two decisions of this Court? In Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] , this Court ruled that once the appellate court has admitted the appeal to be heard on merits, it cannot dismiss the