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PETITIONER: BANI SINGH & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       09/07/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SINGH N.P. (J) MANOHAR SUJATA V. (J)

CITATION:  1996 SCC  (4) 720        JT 1996 (6)   287  1996 SCALE  (5)126

ACT:

HEADNOTE:

JUDGMENT:                   THE 9TH DAY OF JULY,1996 Present:               Hon’ble the Chief Justice               Hon’ble Mr.Justice N.P.Singh               Hon’ble Mrs.Justice Sujata V.Manohar N.P.Midha and K.K.Gupta, Advs. for the appellants A.S.Pundir, Adv. for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: Bani Singh & Others V. State of U.P.                       J U D G M E N T Ahmadi,CJI.      The short question that we are called upon to decide in this appeal  is whether  the High  Court  at  Allahabad  was Justified in  dismissing the  appeal filed  by the  accused- appellants against  the order  of  conviction  and  sentence issued by the trial court, for non-prosecution.      The facts relevant for our consideration can be briefly stated.  On   13.6.1979,  the   VII  Addl.  Sessions  Judge, Bulandshahar, recorded  an order  convicting the  appellants under Sections  366 and  368 of  the Indian  Penal Code  and sentenced them to rigorous imprisonment for three years with a fine  of Rs.100/-  each. The  appellants filed  an  appeal against this  order in  the  High  Court  of  Allahabad.  On 18.6.1979, the  appeal was  admitted by  the High  Court and notice was  issued. The  High Court  also issued  an interim stay on the execution of the sentence and the realization of fine while  granting bail  to the appellants. On 28.11.1990, the matter  came up for hearing before the High Court. While dismissing  the   appeal  for   non-prosecution,  the  Court recorded the following order :      "The List  has been revised. No one

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    present to argue the case on behalf      of the  appellant, Sri  T.B.  Islam      A.C.A. is  present on behalf of the      State. In view of the law laid down      in the  case of  Ram Naresh Yadav &      Ors. Vs.  State of  Bihar, reported      in AIR  (SC) 1987,  Page 1500,  the      appeal  is   dismissed   for   non-      prosecution without  going into the      merits of the case" The appellants  preferred an  appeal before  this Court.  On 19.1.1995, a Division Bench of this Court, while hearing the matter, examined the judgment in Ram Naresh Yadav & Ors. Vs. State of  Bihar (supra)  and came  to the conclusion that it was in  conflict with  the earlier  ruling of  this Court in Shyam Deo  Pandey &  Ors. Vs.  State of  Bihar (AIR  1971 SC 1606). It, therefore, directed that the matter be heard by a larger bench.  Subsequently, the  matter was  posted  before this Bench.      At this juncture, it would be pertinent to make a brief reference to the relevant provisions of law having a bearing on  this   case.  Chapter  XXIX  of  the  Code  of  Criminal Procedure,  1973   (hereinafter  called  ‘Code’)  comprising Sections 372-394  deals with  ‘Appeals’. For  the purpose of our examination,  the relevant  provisions are Sections 384- 386. Section  384, which  deals with  summary  dismissal  of appeals, enables the Appellate Court to summarily dismiss an appeal "if upon examining the petition of appeal and copy of the judgment  received", it  "considers  that  there  is  no sufficient ground  for interfering".  Section  385  provides that "if  the Appellate  Court does  not dismiss  the appeal summarily", it  "shall cause notice of the time and place at which such  appeal will be heard to be given" to the parties involved. It further provides that thereafter, the Appellate Court shall  "send for the record of the case if such record is not  already  in  Court"  and  "hear  the  parties".  The relevant part  of Section  386 provides that "after perusing such record and hearing the appellants or his pleader, if he appears, and  the Public  Prosecutor, if  he  appears",  the Appellate Court  "may, if  it considers  that  there  is  no sufficient ground for interference, dismiss the appeal".      From the  facts of  the present  case, it is clear that when the  matter came  up before the High Court, it admitted the appeal and, following the procedure laid down in Section 385 of  the  Code,  issued  notice  to  the  State.  In  the circumstances, it  is clear  that Section  384 of  the Code, which enables the High Court to summarily dismiss an appeal, is not  applicable to the present case. Since the High Court proceeded to  dismiss the appeal when it was next listed for hearing, it  is clear that the provision applicable to these facts is  Section 386  of the  Code, though the order of the High Court does not mention the provision. From the order of the High Court, it is clear that upon finding the appellants and their  pleader absent,  it dismissed the appeal for non- prosecution without going into the merits of the case.      The law  relating to the central issue in this case has been authoritatively  laid down  by a Division Bench of this Court in  Shyam Deo’s  case. Though  the case was decided in the  context   of  Section  423  of  the  Code  of  Criminal Procedure, 1898,  (hereinafter called  the Old  Code)  since that provision materially corresponds to the present Section 386, the  interpretation laid down in that case continues to be sound.  The facts  of that  case were  similar, in  that, while hearing  an appeal against a conviction, the concerned High Court,  finding the appellants’ pleader absent, perused

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the judgment  under appeal,  and, finding  no merit  in  the case, dismissed  the appeal.  This Court  took the view that once the  appeal was  admitted, it was the duty of the Court to peruse  the record  of the case before dismissing it. The Court considered  this to  be a  mandatory requirement  and, since, in  its view,  the record  of a  case is not confined only to the judgment under appeal, it held that the order of the High Court was not in conformity with the requirement of the provision and ordered it to be set aside.      In Ram  Naresh Yadav’s  case, a  Division Bench of this Court was  faced with  a  case  where  the  High  Court  had confirmed an  order  for  conviction  and  sentence  without hearing the  appellants. Against these facts, the Court took the view  that, in  criminal matters, convicts must be heard before their  matters are  decided on merits. It, therefore, set aside  the order  of the  High Court  and  remanded  the matter to it for "passing an appropriate order in accordance law after  hearing the  appellants or  their counsel  and on their failure  to  engage  counsel,  after  hearing  counsel appointed by the Court to argue on their behalf".      The Division  Bench of  this Court  which referred this matter to  us was of the view that these decisions, rendered by separate two-judge benches of this Court, are in conflict with each  other. Before  we decide  on this  issue, we must closely examine  the scheme  envisaged by  the Code  in this regard. The relevant portions of Sections 385 and 386 of the Code are extracted as under:      385. Procedure  for hearing appeals      not dismissed  summarily --  (1) If      the  Appellate   Court   does   not      dismiss the  appeal  summarily,  it      shall cause  notice of the time and      place at  which such appeal will be      heard to be given -      (i)      to the  appellant  or  his      pleader;      (ii)  .... .... ....      (iii) .... .... ....      (iv)  .... .... ....      (2) The  Appellate Court shall then      send for the record of the case, if      such   record    is   not   already      available in  that Court,  and hear      the parties:           Provided that if the appeal is      only  as   to  the  extent  or  the      legality of the sentence, the Court      may dispose  of the  appeal without      sending for the record.      (3) .... .... ....      386. Powers  of the Appellate Court      -- After  perusing such  record and      hearing  the   appellant   or   his      pleader, if  he  appears,  and  the      Public Prosecutor,  if he  appears,      and in  case  of  an  appeal  under      Section 377  or  Section  378,  the      accused,   if   he   appears,   the      Appellate   Court    may,   if   it      considers   that    there   is   no      sufficient ground  for interfering,      dismiss the appeal, or may --      xxxx             xxxx        xxxx "      Section 385(2)  clearly states  that if  the  Appellate Court does  not dismiss  the appeal  summarily, it  ‘shall’,

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after issuing notice as required by subsection (1), send for the record  of the  case and  hear the parties. The proviso, however, posits  that if  the appeal  is restricted  to  the extent or  legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear  to us  that once  the Appellate  Court,  on  an examination of  the  grounds  of  appeal  and  the  impugned judgment, decides  to admit  the appeal for hearing, it must send for  the record  and then  decide the  appeal  finally, unless the  appeal is  restricted to the extent and legality of the  sentence. Obviously, the requirement to send for the record is  provided for  to enable  the Appellate  Court  to peruse the  record before finally deciding the appeal. It is not an  idle formality  but casts an obligation on the court to decide  the appeal  only after it has perused the record. This is  not to  say that it cannot be waived even where the parties consent  to its  waiver. This becomes clear from the opening words  of Section 386 which say that ‘after perusing such record’  the court  may dispose of the appeal. However, this Section  imposes a  further requirement  of hearing the appellant or  his pleader,  if he  appears, and  the  public prosecutor, if  he appears.  This is  an  extension  of  the requirement of  Section 385(1)  which requires  the court to cause notice to issue as to the time and place of hearing of the appeal.  Once such a notice is issued the accused or his pleader, if he appears, must be heard.      The question is, where the accused is the appellant and is represented  by a pleader, and the latter fails to appear when the  appeal is  called on for hearing, is the Appellate Court empowered  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?      In  Shyam   Deo’s  case,  this  Court  ruled  that  the Appellate Court  must peruse  the record before disposing of the appeal;  the appeal has to be disposed of on merits even if it  is being  disposed of in the absence of the appellant or his  pleader. Interpreting  Section 423  of the  Old Code (the corresponding  provisions are  Sections 385-386  of the present Code),  this Court  in paragraph  19 of the judgment held as under:      "The consideration of the appeal on      merits  at   the  stage   of  final      hearing and to arrive at a decision      on merits  and to pass final orders      will not  be  possible  unless  the      reasoning and  findings recorded in      the  judgment   under  appeal   are      tested in  the light  of the record      of the  case. After the records are      before the  court and the appeal is      set  down   for  hearing,   it   is      essential that  the Appellate Court      should (a)  peruse such record, (b)      hear the  appellant or his pleader,      if he  appears, and  (c)  hear  the      public prosecutor,  if he  appears.      After    complying    with    these      requirements, the  Appellate  Court      has full  power to  pass any of the      orders mentioned in the section. It      is  to   be  noted   that  if   the      appellant or  his  pleader  is  not      present or if the public prosecutor      is   not   present,   it   is   not

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    obligatory on  the Appellate  Court      to  postpone  the  hearing  of  the      appeal. If  the   appellant or  his      counsel or  the public  prosecutor,      or  both,   are  not  present,  the      Appellate Court has jurisdiction to      proceed with  the disposal  of  the      Appeal; but  that disposal  must he      after  the   Appellate  Court   has      considered the appeal on merits. It      is clear  that the  appeal must  be      considered  and   disposed  of   on      merits  irrespective  of  the  fact      whether  tne   appellant   or   his      counsel or the public prosecutor is      present or  not. Even if the appeal      is disposed  of in  their  absence,      the   decision    must   be   after      consideration on merits."                         (Emphasis added)      In our view, the above-stated position is in consonance with the  spirit and  language of  Section 386  and, being a correct interpretation of the law, must be followed.      In Ram  Naresh Yadav’s case, this Court, without making a specific  reference to  Section 386 or any other provision of the  Code and  without noticing  the ratio of Shyam Deo’s case concluded thus:      "It is  an admitted  position  that      neither the  appellants nor counsel      for the  appellants in  support  of      the appeal challenging the order of      conviction   and   sentence,   were      heard. It  is no doubt true that if      conunsel   do   not   appear   when      criminal appeals  are called out it      would hamper  the  working  of  the      court and  create a serious problem      for the  court. And if this happens      often  the  working  of  the  court      would become  well nigh impossible.      We  are  fully  conscious  of  this      dimension  of  the  matter  but  in      criminal matters  the convicts must      be heard  before their  matters are      decided on  merits. 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 counsel. The court      might  as well appoint a counsel at      State cost  to argue  on behalf  of      the appellants."                         (Emphasis added)      What then  is the  area of  conftict  between  the  two decisions of  this Court?  In Shyam  Deo’s case,  this Court ruled that  once the Appellate Court has admitted the appeal to be heard on merits, it cannot dismiss the appeal for non- prosecution for  non-appearance  of  the  appellant  or  his counsel, but  must dispose  of the  appeal on  merits  after examining the  record of  the case. It next held that if the appellant or  his counsel  is absent, the Appellate Court is not bound  to adjourn the appeal but it can dispose it of on

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merits after  perusing the  record. In  Ram  Naresh  Yadav’s case, the  Court did  not analyse the relevant provisions of the Code  nor did  it notice  the view  taken in Shyam Deo’s case but held that if the appellant’s counsel is absent, the proper  course   would  be   to  dismiss   the  appeal   for nonprosecution but  not on  merits; it can be disposed of on merits only  after hearing  the appellant  or his counsel or after appointing  another counsel at State cost to argue the case on behalf of the accused.      We have  carefully considered the view expressed in the said two  decisions of this Court and, we may state that the view taken  in Shyam  Deo’s case  appears to be sound except for a  minor clarification  which we  consider necessary  to mention. The  plain language  of Section  385 makes it clear that if the Appellate Court does not consider the appeal fit for summary  dismissal, it  ’must’ call  for the  record and Section 386  mandates that after the record is received, the Appellate Court  may dispose of the appeal after hearing the accused or  his counsel.  Therefore, 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. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by  perusing the  reasoning of the trial court in the judgment, but  by  cross-checking  the  reasoning  with  the evidence on record with a view to satisfyiny itself that the reasoning and  findings recorded  by  the  trial  court  are consistent with  the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but  only contemplates  disposal  on  merits after perusal  of the  record. Therefore,  with respect,  we find it difficult to agree with the suggestion in Ram Naresh Yadav’s case  that if  the appellant  or his  pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.      Secondly, the law expects the Appellate Court to give a hearing to  the appellant  or his counsel, if he is present, and to  the public  prosecutor, if  he  is  present,  before disposal of the appeal on merits. Section 385 posits that if the appeal  is not  dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be  heard to  be given to the appellant or his pleader. Section 386  then provides  that the  Appellate Court shall, after  perusing  the  record,  hear  the  appellant  or  his pleader, if  he appears. It will be noticed that Section 385 provides for  a notice  of the  time and place of hearing of the appeal  to be  given to  either  the  appellant  or  his pleader and  not to  both presumably  because notice  to the pleader  was   also  considered   sufficient  since  he  was representing the appellant. So also Section 386 provides for a hearing  to be given to the appellant or his lawyer, if he is present,  and both  need not  be heard. It is the duty of the appellant  and his  lawyer  to  remain  present  on  the appointed day,  time and place when the appeal is posted for hearing. This  is the  requirement of  the Code  on a  plain reading of  Sections 385-386  of the  Code. The law does not enjoin that  the Court  shall adjourn  the case  if both the appellant and his lawyer are absent. If the Court does so as a matter  of prudence  or  indulgence,  it  is  a  different matter, but  it is  not bound  to adjourn the matter. It can dispose of  the appeal  after perusing  the record  and  the judgment of  the trial  court. We  would, however, hasten to add that  if the  accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and

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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  to assist  it, there is nothing in  the law  to preclude  it from  doing so. We are, therefore, of  the opinion  and we say so with respect, that the Division Bench which decided Ram Naresh Yadav’s case did not apply  the provisions  of Sections  385-386 of  the Code correctly when  it indicated  that the  Appellate Court  was under an  obligation to  adjourn the case to another date if the appellant or his lawyer remained absent.      Such a  view can bring about a stalemate situation. The appellant and  his lawyer  can remain  absent with impunity, not once but again and again till the Court issues a warrant for the appellant’s presence. A complaint to the Bar Council against the  lawyer for  non-appearance cannot result in the progress of  the appeal.  If another  lawyer is appointed at State cost,  he too would need the presence of the appellant for instructions  and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can  promote indiscipline.  Even if a case is decided on merits in  the absence  of the  appellant, the highrer court can remedy  the situation  is there  has been  a failure  of justice. This  would apply  equally if  the accused  is  the respondent for  the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.      In view  of the position in law explained above, we are of the  view that  the High  Court erred  in dismissing  the appeal for non-prosecution simplicitor without examining the merits. We,  therefore, set  aside the  impugned  order  and remit the appeal to the High Court for disposal on merits in the light  of this  judgment. The  appeal will stand allowed accordingly.