REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1536         OF 2010 (Arising out of S.L.P.(Crl.)No. 9685 of 2009)

Harjinder Singh                         ....  Appellant (s)

Versus

State of Punjab        .... Respondent(s)

O R D E R  

Leave granted.

Heard both sides.

The main grievance of the appellant is that his counsel  

was absent and not heard any one on his behalf by the High  

Court when his appeal was disposed of finally on 19th August,  

2008.  The impugned order also shows that none appeared for  

the  appellant  whereas  the  State  was  represented  by  the  

Deputy Advocate General.   

The  appellant-accused  has  filed  Criminal  appeal  No.  

1440-SB of 2001 before the High Court against the conviction  

and  sentence  under   the  Narcotic  Drugs  and  Psychotropic  

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Substances  Act  imposed  by  the  Special  Court,  Hoshiarpur.  

The  Special  Court  sentenced  him  to  10  years   rigorous  

imprisonment and imposed a fine a Rs. 1 lakh.  Though the  

High  Court  has  considered  the  grounds  raised  in  the  

memorandum  of  appeal,  considering  the  fact  that  the  

appellant-accused  was  behind the  bar  and could  not  make  

alternative arrangement and the Court has also not arranged a  

counsel at the State expense and in view of sentence, i.e. 10  

years  rigorous  imprisonment  and  a  fine  of  Rs.  1  lakh,  we  

intend to give one more opportunity to the appellant-accused  

to put forth his case through a lawyer in the High Court.

It is useful to refer a three Judge Bench decision of this  

Court in Bani Singh & Ors. Vs. State of U.P. , (1996) 4 SCC  

720.   The  question  that  was  posed  before  the  three  Judge  

Bench was that  where the accused-appellant is represented  

by  a  pleader  and  latter  fails  to  appear  when  the  appeal  is  

called  on  for  hearing,   is  the  appellate  Court  empowers  to  

dispose of the appeal after perusing the record on its own or,  

must it adjourn the appeal to a future date and intimate the  

accused  to  be  present  on  the  next  date  of  hearing?   After  

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finding difference of opinion in Shyam Deo Pandey vs. State  

of  Bihar,  (1971)  1  SCC 855  and  Ram Naresh Yadav vs.  

State of Bihar, AIR 1987 SC 1500, the matter was referred to  

a large Bench.  The following conclusions emerge from the said  

decision  :

(i) The  plain  language  of  Sections  385-386  does  

not contemplate dismissal of the appeal for non-

prosecution  simplicitor.   On the  contrary,  the  

Code envisages disposal of the appeal on merits  

after perusal and scrutiny of the record.  

(ii) Even  in  the  absence  of  lawyer,  the  Court  is  

competent to dispose of the appeal but only on  

perusing  the  record  and  after  appreciation  of  

grounds raised.  

(iii)  Even in  the  absence  of  a  lawyer  though the  

appellate  Court  is  competent  to  decide  the  

appeal on merits, if  the accused is in jail  and  

cannot, on his own come to Court, it would be  

advisable  to adjourn the case and fix  another  

date  to  facilitate  the  appearance  of  the  

accused/appellant if his lawyer is not present.  

If the lawyer is absent and the Court deems it  

appropriate to appoint a lawyer at State expense  

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to  assist  it,  there  is  nothing  in  the  law  to  

preclude it from doing so.

In view of the legal position with regard to the disposal of  

the appeals with reference to Sections 385-386 of  the Code  

and taking note of the special circumstances that the accused  

was  behind  the  bar  and  had  no  opportunity  to  make  

alternative arrangement, we set aside the impugned judgment  

and remit the matter to the High Court.  We request the High  

Court to restore the appeal to its original number i.e., Criminal  

Appeal  No.  1440-SB of  2001 and dispose of  the same after  

affording  opportunity  to  both  sides  particularly,  to  the  

appellant.  Since the appellant is in jail, we request the High  

Court to give priority and dispose of the matter within a period  

of four months from the date of the receipt of the copy of this  

order.  

The appeal is disposed of accordingly.     

...…………………………………J.                   (P. SATHASIVAM)                                   

...…………………………………J.  

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        (DR. B.S.CHAUHAN)  NEW DELHI; AUGUST 16, 2010.           

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