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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RANJAN SHARMA, J.
Rajeev Nag – Appellant
Versus
Ranjeet Singh - Respondents
Cr.MP(M) No.2838 of 2022
Decided on : 04-03-2024
Criminal Appeal - Dismissal for Non-Prosecution - Negotiable Instruments Act - Section 138 - Cr.P.C. 362, 385, 386 - The court discussed the dismissal of the criminal appeal for non-prosecution and the legal provisions under Cr.P.C. Sections 362, 385, and 386. The judgment referenced key legal provisions and their interpretations, emphasizing that the appellate court is obligated to hear the appellant or their counsel and go through the records before disposing of the appeal.
Fact of the Case:
The petitioner, a convict, filed a Revision Petition against the dismissal of his appeal for non-prosecution. The appeal was dismissed by the Appellate Court for want of prosecution, resulting in affirming the judgment of conviction and sentence under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The court found that the dismissal of the appeal for non-prosecution without adverting to merits was unknown in law and prejudiced the petitioner, amounting to defeating the administration of justice. The Impugned Order dated 09.03.2016 was quashed and set aside, and the matter was remanded back to the Appellate Court for further proceedings.
Issues: The key issue was whether the Appellate Court could dismiss the criminal appeal for non-prosecution without adverting to merits, in the context of Cr.P.C. Sections 362, 385, and 386.
Ratio Decidendi: The court held that the appellate court is obligated to hear the appellant or their counsel and go through the records before disposing of the appeal, as per the legal provisions under Cr.P.C. Sections 362, 385, and 386.
Final Decision: The Impugned Order dated 09.03.2016 was quashed and set aside, and the matter was remanded back to the Appellate Court for further proceedings. The Appellate Court was also requested to explore the possibility of amicable settlement if the parties agree.
JUDGMENT :
Ranjan Sharma, J.
The petitioner, a convict, has come up before this Court, in Revision Petition, under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), against the order dated 09.03.2016 [Annexure P-2] [hereinafter referred to as ‘Impugned Order’] passed by learned Additional Sessions Judge (III) Kangra at Dharamshala, Camp at Palampur, [hereinafter referred to as ‘Appellate Court’] whereby, the appeal filed by the petitioner-convict was dismissed for non-prosecution; resulting in affirming the judgment dated 08.07.2008 [Annexure P-1] passed by learned Judicial Magistrate, First Class, Palampur, District Kangra, in Criminal Complaint No.182-III/2004.
2. The factual matrix is that the complainant, Ranjeet Singh Rana, filed a complaint under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the Act’) against the accused (Rajeev Nag) herein, before the learned Judicial Magistrate, First Class (I), Palampur, District Kangra, vide Criminal Complaint No.182-III/2004, whereby the accused was convicted and sentenced for offence under Section 138 of the Negotiable Instruments Act, by the learned Judicial Magistrate, First Class (I), Palampur, District Kangra on 08.07.2008 [Annexure P-1], for rigorous imprisonment for one year and to pay compensation of Rs.1,00,000/-.
3. Feeling aggrieved against the judgment of conviction and sentence dated 08.07.2008 [Annexure P-1] passed by the learned Judicial Magistrate, First Class (I), Palampur, the accused (Rajeev Nag) herein, preferred a Criminal Appeal No.152 of 2013 before the Additional Sessions Judge (III), Kangra at Dharamshala [hereinafter referred to as Appellate Court] on 09.03.2016 [Annexure P-2], which reads as under:-
Present: None for the appellant.
Sh. G.R. Bhardwaj, Ld. APP for the State.
Case called thrice, but appellant not present nor any counsel put appearance on his behalf. It is 2.30 P.M., therefore, the present appeal is dismissed in default for want of prosecution on behalf of appellant. Record of the ld. lower Court be sent back along with copy of this order and the remaining file of this Court after its due completion be consigned to the record room.”
A perusal of the orders passed by Additional Sessions Judge-III, Kangra, Dharamshala, Camp at Palampur, District Kangra, reveals that the appeal filed by the accused (Rajeev Nag) was dismissed in default for non-prosecution.
4. Consequent upon the passing of the order dated 09.03.2016 (Annexure P-2), dismissing the appeal for non-prosecution, the accused (Rajeev Nag) filed a Crl. M.A. No.40-P/2020 before the learned Additional Sessions Judge-III, Kangra at Dharamshala, requesting to alter or review/recall/set-aside the order dated 09.03.2016 passed by his predecessor. This application was disposed of by the learned Additional Sessions Judge-III, Kangra at Dharamshala, on 22.12.2021 [Annexure P-3], on the ground that once an order has been passed in appeal then, in view of the Section 362 of Cr.P.C., this Court was not competent to alter/recall or review its own order and therefore, the present application was dismissed on 22.12.2021 [Annexure P-3].
5. It is in this background, that the petitioner has filed the instant revision petition before this Court, assailing the judgment dated 09.03.2016 (Annexure P-2) dismissing the appeal of accused (Rajeev Nag) in default for non-prosecution and the order dated 22.12.2021 (Annexure P-3), dismissing the application seeking alteration/recalling judgment dated 19.03.2016.
6. Heard Mr. Arsh Chauhan, learned vice counsel for the petitioner as well as Mr. Ravinder Singh Jaswal, learned counsel for the respondent-complainant and have gone through the pleadings and case records.
7. In view of the narration of facts, referred to above, the point for consideration is as under:-
The main legal point established in the judgment is that the appellate court is obligated to hear the appellant or their counsel and go through the records before disposing of the appeal, as per the ....
A dismissal of a complaint for non-prosecution under Section 256(1) of the CrPC constitutes an acquittal, and the remedy lies in appealing under Section 378(4), rather than invoking Section 482.
The dismissal of a criminal appeal for non-prosecution is impermissible; courts must ensure a hearing on merits and may appoint amicus curiae if necessary.
The appellate court cannot dismiss a conviction appeal for non-appearance; it must appoint amicus curiae and decide the appeal on merits, safeguarding the accused's right to liberty.
An appellate court is prohibited from dismissing a criminal appeal for non-representation; it must decide on the merits after reviewing the evidence and trial court's findings.
A court cannot impose a condition to deposit part of the amount covered by the verdict as a prerequisite to condone delay in filing an appeal; appeals must be decided on their merits regardless of th....
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