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PETITIONER: KISHAN SINGH

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT02/11/1992

BENCH: [LALIT MOHAN SHARMA, K. RAMASWAMY AND N. VENKATACHALA, JJ.]

ACT:   Code  of  Criminal  Procedure  1973:  Sections  374,  382, 383,384.  Criminal  appeal-Non-prosecution Power  of Court to dismiss Held  a   criminal  appeal  cannot  be  dismissed  for  non- prosecution Appellate  court should examine the  petition of appeal and  judgment under challenge and consider the merits of  the   case  before   dismissing  the  appeal  summarily- Distinction between criminal and civil appeal discussed.  Civil Procedure Code 1908: Order 47 Rule 11, 17 and 19.

HEADNOTE: The appellant  was convicted  under Section 5(2) of the Prevention of  Corruption Act and was sentenced to two years rigorous imprisonment  and a  fine of  Rs. 200.  He filed an appeal under  Section 374  of the  Criminal  Procedure  Code before the  Allahabad High  Court which  was  dismissed  for default of  the appearance of the appellant and his counsel. An  application     for   restoration  of  the  appeal  made thereafter was  also dismissed.  In appeal  to this Court it was contended  on behalf  of the  appellant that  the appeal could not  have been  dismissed for default on the ground of absence of  the appellant or his counsel to appear and press the appeal. Allowing the appeal and setting aside the orders of the High Court,  this Court, HELD: 1. The High Court was not right in dismissing the appeal on  the ground  of non-appearance of the appellant or his counsel  and  it  should  have  allowed  the  prayer  of restoration of  the criminal  appeal  under    its  inherent power. [310-C] 2. Under  Section 384 of the Criminal Procedure Code it is the  duty of  the appellant court to examine the petition of appeal  and the  judgment under challenge and to consider the  merits   of  the  case  before  dismissing  the  appeal summarily. The  said duty  is not dependent on the appellant or   his counsel  appearing before  the Court  to press  the appeal. As  soon as  a petition of appeal is presented under Section 382  or 383  it becomes  the duty  of the  appellate court to consider the same on merits, even in the absence of the appellant  and his  counsel before  dismissing the  same summarily. Therefore,  the High  Court  should  have  either examined  the    appellant’s  petition  of  appeal  and  the judgment under  challenge, itself  or appointed a counsel to assist the  Court, but  could not  have proceeded to dismiss the same  on the  ground that the advocate for the appellant was not present.[308-H; 309-A, C]

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3. The  position of a criminal appeal is not be same as that of  a civil  appeal. A  comparison of the provisions of Section 384  of Criminal  Procedure Code with those of Order 41, Rules  11 and  17 of  the Civil  Procedure Code  clearly brings out  the difference.  Rule  17,  Order  41  of  Civil Procedure Code  in express terms provides that an appeal may be dismissed  on the ground of absence of the appellant when the appeal  is called  out, and  Rule 19  provides  for  its restoration on  the appellant  offering sufficient cause for his non-appearance.  However, in  the  case  of  a  criminal appeal the  corresponding provisions  are not to be found in the Code  of Criminal  Procedure. On the other hand the Code in express  terms requires  the matter  to be  considered on merits. Thus  a criminal appeal cannot be dismissed for non- prosecution. [309-D, E] Ram Naresh  Yadav &  Ors v. State of Bihar, A.I.R. 1987 S.C. 1500, dissented form. Shyam Deo Pandey & Ors. v. state of Bihar, [1971 Suppl. S.C.R. 133, relied on. Emperor v.  Balumal Hotchand  and Ors., 39 Criminal Law Journal 890  and Ramesh Nanu v. State of Gujarat, 17 Gujarat Law Reporter 350, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 183 of 1993.      From the  Judgment and  order dated  11.5.1992  of  the Allahabad High  Court in  Criminal Appeal  No. 1791  of  the 1979.      Bahar U. Bargi and Anis Suhrawardy for the Appellant.      The following Order of the Court was delivered:      The petitioner  was convicted  by  the  Special  Judge, Mathura under  Section 5(2)  of the Prevention of Corruption Act and was sentenced to two years rigorous imprisonment and a fine  of Rs.  200. He filed an appeal before the Allahabad High Court which was dismissed for default of the appearance Or the  petitioner and  his counsel,  when  the  appeal  was called   out for  preliminary hearing.  An  application  for restoration of the appeal made thereafter has also dismissed by the  order which has been challenged before this Court in the present special leave petition.      2. The question which arises in this case is whether an appeal filed   under  Section 374  of the Criminal Procedure Code by an accused against his conviction and sentence could be dismissed for the default of the appellant in prosecuting the appeal either in person or through counsel.      3. Notice  was issued  in the  special  leave  petition indicating that  the matter  would be finally disposed of at the notice  stage itself.  The office  report indicates that notice has been served, but there is no appearance on behalf of the respondent State. Special leave is granted.      4. The  High Court  in its  order dated  14th November, 1990 dismissing  the appeal for non-prosecution, relied upon the observations  of this  Court   in Ram  Naresh Yadav  and others v.  State of Bihar, AIR 1987 SC 1500 to the following effect:      "The court  can dismiss  the appeal      for  non-prosecution   and  enforce      discipline or  refer the  matter to      the Bar  Council   with this end in      view.  But   the  matter   can   be      disposed of  on   merits only after      hearing  the   appellant   or   his

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    counsel."      5. The  learned counsel for the appellant has contended that the appeal could not have been dismissed for default on the ground  of absence  of the  appellant or  his counsel to appear and press the appeal. The argument appears to be well founded.      6). As  enjoined by Section 382 of the Code of Criminal Procedure, the  appeal has  to be  filed in  the form  of  a petition. Section  384 (omitting  sub-sections (3)  and  (4) which are  not relevant in the present context) quoted below deals with summary disposal of appeal:      "384. Summary  dismissal of appeal:      (1) If upon examining  the petition      of appeal  and copy of the judgment      received   under Sec.  382 or  Sec.      383, the  Appellate Court considers      that there  is no sufficient ground      for interfering,  it may    dismiss      the appeal summarily:      Provided that      (a) no  appeal presented under Sec.      382 shall  be dismissed  unless the      appellant or  his pleader has had a      reasonable  opportunity   of  being      heard in support of the same;      (b) no  appeal presented under Sec.      383 shall be dismissed except after      giving the  appellant a  reasonable      opportunity  of   being  heard   in      support of  the  same,  unless  the      Appellate Court  considers that the      appeal is  frivolous  or  that  the      production  of   the   accused   in      custody  before   the  Court  would      involve such inconvenience as would      be    disproportionate    in    the      circumstances of the case;      (c) no  appeal presented under Sec.      383 shall  be  dismissed  summarily      until  the   period   allowed   for      preferring such appeal has expired.       (2)  Before dismissing  an  appeal      under this  section, the  Court may      call for the record of the case."      7. It  will be  seen that the very opening words of the Section require  the Appellate Court to examine the petition of appeal  and copy  of the impugned judgment in considering whether there  is any sufficient ground for interfering with the same.  Sub-section (2)  provides that the Court may call for the  records of  the case even at the preliminary stage. It is,  thus clear,  that the duty of the appellate court to examine the  petition  of  appeal  and  the  judgment  under challenge and  to consider  the merits  of the  case  before dismissing the  appeal summarily  is not  dependent  on  the appellant or his counsel appearing before the Court to press the appeal.  As soon  as a  petition of  appeal is presented under Section  382 or  383 it  becomes  the    duty  of  the appellate court  to consider the same on merits, even in the absence of  the appellant  and his counsel before dismissing the same   summarily. In a case where the appellant has been sentenced to  imprisonment and he is not in custody when the appeal is  taken up  for preliminary  hearing, the Appellate Court can  require him  to surrender,  and if  the appellant fails to obey the direction, other considerations may arise, which may  render the  appeal liable to be dismissed without

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consideration of  the   merits, but  that  is  altogether  a different matter  with which  we are  not concerned  in  the present  case.   Here,  the  appellant’s  advocate  was  not present to argue the appeal when the case was called out and in the  restoration application  filed subsequently, attempt was made  to explain  the default, which, of course, did not succeed. The question is, whether in the  circumstances, the High Court  could have dismissed the appeal for default, and if not,  whether the prayer for restoration should have been allowed. As  is manifest  from the  provisions  of  Criminal Procedure Code,  referred to  above, the  High Court  should have either  examined the appellant’s petition of appeal and the judgment  under challenge, itself or appointed a counsel to assist  the  Court,  but  could  not  have  proceeded  to dismissed the   same on the ground that the Advocate for the appellant was not present. The position of a criminal appeal is not  the same  as in a civil appeal governed by the Civil Procedure Code.  comparison of the provisions of Section 384 with those  of Order  41, Rules  11  and  17  of  the  Civil Procedure Code  clearly brings  out the difference. Rule 17, Order 41  of Civil  Procedure Code in express terms provides that an  appeal may be dismissed on the ground of absence of the appellate  when the  appeal is  called out,  and Rule 19 provides for  its  restoration  on  the  appellant  offering sufficient cause  for his  non-appearance. In  the case of a criminal appeal  the corresponding  provisions are not to be found in  the Code  of Criminal Procedure. On the other hand the  Code  in  express  terms  requires  the  matter  to  be considered on  merits. Thus  a  criminal  appeal  cannot  be dismissed for  non-prosecution, and this is the reason as to why the  Criminal Procedure  does not  contain  any  special provision like Order 41, Rule 19. The law was correctly laid down in Shyam Deo Pandey & Ors. v State of Bihar, [1971] Suppl. SCR 133 a case governed by the old Criminal Procedure Code. The position in this regard remains the same under the new Code.  Even earlier, the High Courts were following this very principle  is clear  from the  observations Emperor  v. Balumal Hotchand and Others, 39 Criminal law Journal 890 and Ramesh Nanu  v. State  of Gujarat,  17 Gujarat Law  Reporter 350. in  Emperor v.  Balumal Hotchand   and  others, it  was observed  thus:   That  the  law  requires  that  before  an Appellate Court  dismisses and  appeal summarily,  it  shall read a  copy of  the judgment,  and then,  if  there  is  no sufficient ground for interfering, it may dismiss the appeal summarily. it  was emphasized  that  the  dismissal  of  the appeal shall depend on the exercise by the judgment, and not upon the failure of the accused to press his appeal.      8. In  view of  the  clear  language  of  the  Code  of Criminal Procedure  and the other reasons mentioned above we are constrained  to hold that the observations of this Court in AIR  1987 Supreme Court page 1500 relied Upon by the High Court in  the case  before us,  cannot be  treated as having laid down  the law correctly. The High Court was, therefore, not right  in dismissing  the appeal  on the  ground of non- appearance of  the appellant  or his  counsel and  it should have, therefore,  allowed the  prayer of  restoration of the criminal appeal under its inherent power. In the result, the present appeal  is allowed, the orders of the High Court are set aside,  the Criminal  Appeal No. 1791 of 1979 before the High Court  is restored  and the  matter is  remitted to the High Court  for consideration  and  decision  on  merits  in accordance with law. T.N.A                                       Appeal allowed.

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