J U D G M E N T

“By not punishing the guilty and punishing those not deserving to be punished, by arresting those who ought not to be arrested and not arresting those who ought to be arrested; and by failing to protect subjects from thieves etc. through these causes “ decline, greed and dis-affection are produced among the subjects. It is punishment alone which maintains both this world and the next.” “ Kautiliya Arthasastra by Prof. V.K. Gupta “....not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evildoing”. “ Plato”s Laws “Crucify me, O judge, crucify me “ but pity me! And then I will go of myself to be crucified, for it”s not merrymaking I seek but tears and tribulation!” “ Crime and Punishment by Fyodor Dostoevsky “By enforcing a public system of penalties government removes the grounds for thinking that others are not complying with the rules. For this reason alone, a coercive sovereign is presumably always necessary, even though in a well-ordered society sanctions are not severe and may never need to be imposed. Rather, the existence of effective penal machinery serves as mens security to one another”. “ A Theory of Justice by Rawls 1. We are concerned with the rampant manipulation and misuse of the statutory right to appeal by convicts who quite palpably take recourse to filing of appeals with the sole objective of defeating justice by obtaining bail and thereafter escaping out of the reach of law. Jural compulsions dictate that this species of appeals should be consciously dismissed on the ground of occasioning gross abuse of judicial process and an annihilation of the ends of justice. This approach has found favour with the High Courts of Bombay and Patna. It is necessary to distinguish between dismissal of appeals in this set of circumstances, namely, where steps have been taken for securing the presence of the appellant by coercive means, including the issuance of non-bailable warrants or proceedings for declaring the appellant a proclaimed offender by recourse to Part C of Chapter VI of the Code of Criminal Procedure, 1973 (CrPC for short) on the one hand, and instances where the appellant may incidently not be present when the appeal is called on for hearing. In other words, the malaise which we have in perspective is the wilful withdrawal of the convict from the appellate proceedings initiated by him. Looking to the gravity and general importance of this conundrum we have requested Mr. P.K. Dey, Advocate to assist us as amicus curiae and supplement or oppose, as the case may be, the arguments of Ms. Purnima Sethi and of Mr. Manoj Ohri, learned counsel for the State.

2. We shall first deal with legal provisions on this subject which are to be found principally in Chapter XIX of the CrPC. Section 372 reiterates the general principle of law that an appeal is not a right unless it is granted by a statute. This Section states that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the CrPC or by any other law for the time being in force. Section 374(2) thereafter stipulates that any person convicted in a trial held by a Sessions Judge or an Additional Sessions Judge or in a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court. Although it may be uncommon, there are instances where appeals are not preferred by a convict who has received a sentence of incarceration of a period of seven years or more than seven years. These provisions must immediately be compared with the preceding Chapter-XVIII containing a fasciculus dealing with death sentences which become efficacious only on being confirmed by the High Court. The proviso to Section 36