A criminal appeal cannot be dismissed for non-prosecution without addressing the merits; the High Court cannot alter its judgment post-signature except for clerical errors.

JUDGMENT :

Order on Criminal Misc. Recall Application along with Delay Condonation Application

1. Heard Mr. Prakash Chandra Srivastava, learned counsel for the applicant/appellant and Mr. Jai Narain, learned A.G.A. for the respondent State.

2. The present application along with delay condonation application has been filed by the applicant/appellant under Section Section 528 of BNSS (corresponding Section 482 of Cr.P.C.) seeking recall of the judgment and order dated 17.3.2025, passed by this Court in Criminal Appeal No.1876 of 1983 whereby this Court has confirmed the conviction and sentence of the appellant.

3. The learned counsel for the appellant submits that the impugned judgment was passed in the absence of the appellant, treating him as an absconder despite the appeal being admitted and the applicant having been granted bail by this court.

4. Learned counsel for the appellant further submits that the appellant's counsel, Mr. G.P. Dixit, passed away a long time ago. Consequently, the appellant could not be informed about the hearing of the appeal and therefore was not properly represented. Although this court issued coercive measures against the appellant, he could not be informed because he was no longer living in his village of Beerpur Salempur. It is submitted that the appellant was residing at House No. 636, Har Gobind Nagar Muktasar Sahib, in Punjab with his brother/deponent, who was taking care of him. As a result, the appellant could not respond to the notice issued by this court.

5. It is further submitted that appellant came to know about the impugned judgment on 30.05.2025. Thereafter, he appeared before the learned Chief Judicial Magistrate, Etahwah, on 02.06.2025, and has been in jail since that date.

6. Learned counsel for the appellant further submits that the impugned order has been passed ex parte without affording an opportunity of hearing to the appellant and, therefore, the same may be recalled. He has relied upon the decision in the case of Dhanajay Rai @ Guddu rai vs. State of Bihar (2022 LiveLaw (SC) 597) to submit that an admitted appeal against conviction cannot be dismissed on the ground that the accused in absconding. Learned counsel for the appellant has relied upon paragraph No.8 of this judgment which is quoted below :

"8. The anguish expressed by the division bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no good ground to dismiss the appeal against the conviction, which was already admitted for final hearing, for non prosecution without adverting to merits. Therefore the impugned judgment will have to be set aside and the appeal will have to be remanded to the High Court for consideration of the merit".

7. As against this, learned A.G.A for the respondent State has submitted that the impugned order has been passed on merits, after re-appreciation of the evidence rather than due to non prosecution. Therefore, the recall application is not maintainable in view of Section 362 of Cr.P.C.

8. Learned A.G.A. has further submitted that the applicant was absconding for a long time; therefore, this Court issued a notice for his appearance either personally or through an advocate. Learned A.G.A. has relied upon paragraphs 1 to 6 of the judgment dated 17.3.2025, which confirmed the trial Court's judgment. Paragraphs 1 to 6 of the said judgment are being reproduced:

"1. List revised. No one appears on behalf of the appellant to press the present appeal.

2. Learned counsel for the appellant died long back and as such, appellant