Singh & Ors Vs. State of U.P  INSC 781 (9 July 1996)
A.M. (Cj) Ahmadi A.M. (Cj) Singh N.P. (J) Manohar Sujata V. (J) Ahmadi,CJI.
1996 SCC (4) 720 JT 1996 (6) 287 1996 SCALE (5)126
9TH DAY OF JULY,1996 Present:
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
following Judgment of the Court was delivered:
Singh & Others V. State of U.P.
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.
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 :
List has been revised. No one 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 & 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 State of Bihar
(supra) and came to the conclusion that it was in conflict with the earlier
ruling of this Court in 1606). It, therefore, directed that the matter be heard
by a larger bench. Subsequently, the matter was posted before this Bench.
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".
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.
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 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.
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".
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:
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 –
the appellant or his pleader;
.... .... ....
.... .... ....
.... .... ....
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:
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.
.... .... ....
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', 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.
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.
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:
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.
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 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.
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:
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.
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 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 non prosecution 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.
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.
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
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 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.
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.
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.
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