In the case of Bani Singh (supra), the larger
bench of the Hon’ble Apex Court in the year 1996, has held
that even in absence of convict or his lawyer, the appeal must
be heard on merits, however, the powers conferred under
section 482 of the Code with the High Court were not
discussed at all, which have been now dealt with in the case of
Surya Baksh Singh (supra). Hon’ble Apex Court found that
tendency of the convict to remain absconding, after filing of
the appeal and getting admitted the same, has been increased
to the large extent which has affected the judicial system as
well as an impression is created in the mind of public at large
about absconding convict, whose appeals were heard on
merits even though they had shown scant disrespect to the
judicial system and flouted the order/s passed by the Court
while releasing him on bail/ temporary bail, etc.. It has been
observed by Hon’ble Apex Court in the case of Surya Baksh
Singh (supra) that statutory right of appeal has been misused
by number of convicts by fleeing from the judicial custody to
defeat the ends of justice after getting orders of bail/
temporary bail/ furlough, etc. and escaped beyond the reach
of the law. The Hon’ble Supreme Court has considered ratio
laid down in the case of Bani Singh (supra) however has held
that in case of recalcitrant appellant, the appeal can be
dismissed. While discussing the power of the High Court
u/s.482 of the Code, it has been observed in Para-7 in the case
of Surya Baksh Singh (supra), which reads as under:
“7. Last, but not the least in our appreciation of the law,
Section 482 CrPC stands in solitary splendour. It preserves
the inherent power of the High Court. It enunciates that
nothing in CrPC shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary, firstly, to “give effect to any order under
CrPC”, words which are not to be found in the Code of
Civil Procedure, 1908 (hereafter referred to as ‘CPC’).
Ergo, the High Court can, while exercising inherent
powers in its criminal jurisdiction, take all necessary steps
for enforcing compliance with its orders. For salutary
reason Section 482 CrPC makes the criminal Court much
more effective and all pervasive than the civil Court insofar
as ensuring obedience of its orders is concerned.
Secondly, Section 482 clarifies that CrPC does not
circumscribe the actions available to the High Court to
prevent abuse of its process, from the inception of
proceedings till their culmination. Judicial process
includes compelling a respondent to appear before it.
When the Court encounters a recalcitrant
Appellant/convict who shows negligible interest in
prosecuting his appeal, none of the Sections in Chapter
XXIX CrPC dealing with appeals, precludes or dissuades
it from dismissing the appeals. It seems to us that passing
such orders would eventually make it clear to all that
intentional and repeated failure to prosecute the appeal
would inexorably lead not merely to incarceration but more
importantly to the confirmation of the conviction and
sentence consequent on the dismissal of the appeal.
Thirdly, none of the provisions of CrPC can possibly limit
the power of the High Court to otherwise secure the ends
of justice. While it is not possible to define the concept of
“justice”, suffice it to say that it encompasses not just the
rights of the convict, but also of the victims of crime as
well as of the law abiding section of society who look
towards the Courts as vital instruments for preservation of
peace and the curtailment or containment of crime by
punishing those who transgress the law. If convicts can
circumvent the consequence of their conviction, peace,
tranquility and harmony in society will be reduced to a
chimera. Section 482 emblazons the difference between
preventing the abuse of the jural process on the one
hand and securing of the ends of justice on the other. It
appears to us that Section 482 CrPC has not been given
due importance in combating the rampant malpractice of
filing appeals only for scotching sentences imposed by
criminal Courts.”
13. While considering the case of Bani Singh (supra),
Hon’ble Apex Court in para-12 in the case of Surya Baksh
Singh (supra) has observed as under:
“12. Indeed, the Court in Bani Singh Case was not
confronted by the wilful abscondence of the appellant
concerned. It is noteworthy that the High Court had not
taken steps calculated to secure the presence of the
appellant before it. On the contrary it had palpably
adopted the less tedious course of simply dismissing the
appeal. Bani Singh overruled the Order in Ram Naresh
Yadav which had prescribed that a criminal appeal could be
disposed of on merits only after hearing the appellant or
his counsel. Signally, the Court had observed that in
order to enforce discipline the appeal could be dismissed
for nonprosecution.
In both these cases it is apparent that
the High Court had not taken any steps to secure the
presence of the appellant; in other words, that there was
no material to manifest that the appellant had
abandoned his appeal or had no intention to prosecute it.
In Bani Singh attention of the Court was not drawn to the
views of a Coordinate Bench in Kishan Singh decided four
years previously on 2.11.1992. Having carefully read
through both the opinions we think it important to clarify
that Bani Singh does not cogitate or reflect upon the
options available to the Court which is faced with a
recalcitrant Appellant who is not prosecuting his appeal,
in flagrant violation and abuse of the bail orders granted
in his favour. Kishan Singh deals precisely with the
options open to the Appellate Court at the preliminary
hearing of an appeal.”
14. Hon’ble Apex Court has shown concern about
impact of absconding accused in society in para-16 in the case
of Bani Singh (supra), which reads as under:
"16. We cannot close our eyes to the reality that less than
twenty per cent of prosecutions are successful; the rest are
futile largely because of inept, shoddy or substandard
investigation and prosecution. Even in cases where the
prosecution succeeds in proving the guilt of the
accused, punishment is emasculated by convicts not because
of their succeeding in having their conviction overturned
and reversed by the appellate court, but by going
underground and disappearing from society after receiving
reprieve from incarceration from the appellate court. We
are convinced that the interests of society at large are
being repeatedly sacrificed for the exaggerated, if not
misplaced concern for what is fashionably termed as
Page 14 of 21
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1564 of 2009
NIRAJ DEVNARAYAN SHUKLA Vs STATE OF GUJARAT
CORAM: MR.JUSTICE A.J.DESAI
AND
MR.JUSTICE A.G.URAIZEE
AND
MR.JUSTICE K.J.THAKER
Date : 28/07/2015
Citation;2016 CRLJ452
1. By CAV judgement dated 12/03/2015 passed by
Division Bench of this Court (Coram: Hon’ble Mr.Justice Anant
S. Dave and Hon’ble Mr.Justice G.B.Shah), following question
has been referred to the larger bench for the answer. The
question reads as under:
“Whether law laid down by the Division Bench of
this Court in case of Rajubhai Jangubhai
Rathwa (supra) and Bhimsingbhai
Varjubhai Rathwa & Anr. (supra) is correct
law holding that Criminal Appeal under Section
374 of Cr.P.C. filed by a convict who is
absconding at the time of final hearing to be
heard on merit by applying law laid down in the
case of Dilip S Dahanukar (supra) in the
context of interpretation of Section 357 of
Cr.P.C. about payment of compensation to
victim in a case arising out of Sections 138 and
139 of Negotiable Instrument Act holding that
Criminal Appeal under Section 374 of Cr.P.C. is a
statutory as well as fundamental right affecting
liberty of a person guaranteed under Article 21
of the Constitution of India and that it cannot be
impaired with or curtailed in any manner or
subjected to any condition and further holding
that above decision was not considered in the
case of Mahendra Bhogilal Tadvi (supra) by
earlier Division Bench and law laid down in the
Page 2 of 21
HC-NIC Page 2 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
case of Mahendra Bhogilal Tadvi (supra) is
therefore, per incurrium.”
2. Though the above mentioned specific question has been
referred to the larger Bench, considering the arguments
advanced by learned advocates appearing for the respective
parties, the law laid down by Hon’ble Apex Court as well as
judgements (reported /unreported) of this Court and CAV
judgement, by which, the case is referred, we have come to
the conclusion that after answering to the question itself in
addition to the same, we would like to elaborate the
procedure enumerated in this judgement, to be adopted by
the High Court while dealing with a conviction appeal, at final
hearing stage, when the advocate and/or convict is not
available to assist the Court.
3. Brief facts, emerging from the record, are as under:
That the aforesaid appeal has been preferred by three
convicts challenging the judgement and order of conviction
dated 04/08/2009 passed by learned Sessions Judge in
Sessions Case No.350 of 2007, by which, the convicts have
been sentenced to suffer rigorous imprisonment for 14 years
for the offence punishable under Section 304(B)(2) of Indian
Penal Code; rigorous imprisonment for 10 years for the
offence punishable under section 306 of the Indian Penal
Code and rigorous imprisonment for one year for the offence
punishable under section 4 of the Dowry Act and fine is also
imposed for each of the offence.
All the convicts have challenged the judgement and
order of conviction and sentence, by way of preferring the
aforesaid appeal, which was filed through common advocate.
The appeal came to be admitted on 01/09/2009. A paper book
Page 3 of 21
HC-NIC Page 3 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
was prepared consisting of all oral as well as documentary
evidences led before the Sessions Judge.
The appeal came to be listed for final hearing
before Division Bench on 12/03/2015. Learned Additional
Public Prosecutor appearing for the State Government
submitted that out of three appellants-convicts, appellant
No.1 was released on furlough leave in the year 2011 for a
period of 16 days, however, has never surrendered before the
jail authority on completion of furlough leave. It was further
declared by the jail authority that appellant no.1 is
absconding and is not available. An affidavit was filed by the
father of absconding appellant No.1 (who is one of the
appellants/convicts), by which, he has declared that he was
not in contact with his absconding son and does not know
whereabout of his son.
Learned Additional Public Prosecutor by relying
upon the decision rendered in the case of Mahendra
Bhogilal Tadvi V/s. State of Gujarat reported in 2008(3)
GLH 622 delivered by Division Bench of this Court, submitted
that the appeal qua absconding appellant No.1 may be
dismissed for non-prosecution. The attention of Division
Bench, before whom the appeal was listed for final hearing,
was brought to the notice by the learned advocate appearing
for the appellants, of two unreported decisions of Division
Bench of this Court rendered in the case of Rajubhai
Jangubhai Rathwa V/s. State of Gujarat & 1 on 06/09/2012
in Criminal Appeal No.369 of 2006 as well as in the case of
Bhimsingbhai Varjubhai Rathwa & Anr. V/s. State of
Gujarat delivered on 25/07/2012 in Criminal Appeal
No.1066 of 2006, and the bench was requested to proceed
Page 4 of 21
HC-NIC Page 4 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
further with the appeal on merits even though one of the
appellant – convict was absconding. The Division Bench, who
had dealt with these two criminal appeals, had considered the
case of Mahendra Tadvi (Supra) as well as the law laid
down by Hon’ble Supreme Court in the case of Dilip S.
Dahanukar V/s. Kotak Mahindra Co. Ltd. and Anr.
reported in 2007(3) GLH 244. The Division Bench, did not
agree with the proposition laid down in the case of Mahendra
C. Tadvi (supra), proceeded with the appeal on merits and
decided the appeals on merits, relying upon the decision of
Dilip S. Dahanukar (supra).
4. The Division Bench, while dealing with the present
appeal, considered above mentioned judgements and the ratio
laid down by the Apex Court in the case of Bani Singh V/s.
State of Uttar Pradesh - AIR 1996 SC 2439 and other
reported and unreported decisions of co-ordinate Bench of
this Court, found it necessary to refer the matter to Larger
Bench.
5. Mr.K.B.Anandjiwala, learned senior counsel
appearing for the appellant – convict would submit that larger
bench of Hon’ble Apex Court in case of Bani Singh (Supra)
has held that when a conviction appeal is admitted, it is
bounden duty of the court to decide such conviction appeal on
merits only i.e. after considering the evidence (record and
proceedings of the sessions Court) and is bound to assign
reasons while dealing with such appeal. He would submit that
under the provisions of Sections 385 and 386 of Indian Penal
Code,1973, it is mandatory for the Court to decide an appeal
on merits once it is admitted, even though the convict has
Page 5 of 21
HC-NIC Page 5 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
jumped the bail / temporary bail/ furlough leave or has not
surrendered to the jail authority at the end of period, for
which, he has been released from the jail.
By relying upon the case of Dilip Dahanukar
(supra) Mr.Anandjiwala, learned senior counsel, submits that
the appeal against the conviction is a fundamental rights of a
convict and can never be interfered with or subjected to any
conditions. He would submit that coordinate Division Bench of
this Court in the case of Rajubhai Rathwa (supra) and
Bhimsingbhai (supra) has followed both these judgements
and has rightly shown its disagreement with the proposition of
law laid down in case of Mahendra Tadvi (supra). He,
therefore, would submit that though one of the appellants is
absconding, the appeal should be finally decided only and only
on merits and cannot be dismissed for non prosecution.
6. On the other hand, Mr.Mitesh Amin, learned Public
Prosecutor appearing for the respondent - State of Gujarat
has assisted us, by taking us through several decisions, which
were not brought to the notice of earlier Division Benches
including the bench, which has referred this question. He
would submit that in the change scenario of the society,
Hon’ble Apex Court had an occasion to deal with the cases,
wherein the convict/s or his advocate were not available at
the time of hearing of the appeal. It was argued that Hon’ble
Apex Court has considered several judgements delivered by
Hon’ble Apex Court itself including the case of Bani Singh
(supra) and has asked the High Court to exercise its inherent
power u/s.482 of the Code when it finds that the convict has
abused the judicial process.
By taking us through the decision rendered in the
Page 6 of 21
HC-NIC Page 6 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
case of Surya Baksh Singh V/s. State of Uttar Pradesh -
(2014)14 SCC 222, he would submit that the Highest Court
of the country has shown concern about increasing number of
convicts, who have after availing their statutory rights of
appeal, have abused the judicial process and have shown total
disrespect to the judicial system by not surrendering to the
jail authority. He would submit that Hon'ble Supreme Court
has come down heavily about rampant malpractice of fleeing
from hearing of the appeal, subsequent to admissions of their
appeals. He would further submit that if Appellate Court is
satisfied that the convict is a recalcitrant, who has abandoned
his appeal and has committed breach of terms and conditions
imposed while releasing him on bail/ temporary bail/ furlough
leave and has abused the bail order granted in favour of him,
the Court can exercise its power u/s.482 of the Code and can
dismiss the conviction appeal in his absence.
7. Mr.Mitesh Amin, learned Public Prosecutor would
submit that while deciding the case of Mahendra Tadvi
(supra), the law laid down by Hon’ble Apex Court in the case
of Bani Singh (supra) was not brought to the notice of the
said Bench and, therefore, it was held that the appeal filed by
the convict, who has no respect for the judicial system,
requires to be dismissed, without going into merits. He would
further submit that in case of Rajubhai Rathwa (supra) and
Bhimsingbhai Rathwa (supra), Division Bench relied upon
the decision delivered in the case of Dilip Dahanukar
(supra), which deals with the provisions of Sections 357 and
374 of the Code of Criminal Procedure. He would submit that
in the case of Dilip Dahanukar (supra), Hon’ble Apex Court
Page 7 of 21
HC-NIC Page 7 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
has dealt with a case, wherein statutory as well as
fundamental rights guaranteed under Article 21 of the
Constitution of India of convict were involved. He would
further submit that Division Bench of this Court had no
occasion to deal with the power of the Appellate Court u/s.482
of the Code, which have been dealt with by the Hon’ble Apex
Court in the case of Surya Baksh Singh (supra) with regard
to recalcitrant convict.
He would further submit that though the reference
has been made with regard to power of the Appellate Court
dealing with absconding convict, in view of and considering
judgement of Surya Baksh Singh (supra) as well as Bani
Singh (supra) of Hon’ble Apex Court, the same can be
answered accordingly.
8. First of all, we propose to examine the ratio laid
down in the case of Mahendra Tadvi (supra), by which, it
has been held that a criminal appeal preferred by the convict
is not required to be heard on merits and can be dismissed for
non-prosecution, if he remains absconded and has shown
disrespect to the judicial system. In the said case, appellant –
accused was released on temporary bail by High Court on
certain terms and conditions for limited period. The convict
had committed breach of the conditions and did not surrender
on expiry of bail period, which was granted for a few days.
Accordingly the appeal was dismissed only on the ground that
the appellant had remained absconded. The said judgement
was delivered on 23/03/2008
9. It appears that the ratio laid down by the Apex
Court in the case of Bani Singh (supra), was not brought to
Page 8 of 21
HC-NIC Page 8 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
the notice of this Court, by which, Hon’ble Apex Court has
held that if the appeal is admitted then the High Court is
bound to peruse the record of the case even if the convict or
his advocate or learned Public Prosecutor do not appear for
hearing. It was further made clear that the appeal must be
considered and disposed of on merits irrespective of the fact
that the appellant or his counsel or public prosecutor is
present or not.
Similar situation arose at the time of hearing of
Rajubhai Jangubhai Rathwa (supra) as well as
Bhimsingbhai Varjubhai Rathwa (supra) before another
Division Bench of this Court. Since the appellant – convict was
absconding, an objection was raised by learned Additional
Public Prosecutor about hearing of the matter on merits in
view of judgement delivered in the case of Mahendra Tadvi
(supra). By CAV judgement dated 6/9/2012, the Division
Bench after considering the judgement of Mahendra Tadvi
(supra) as well as considering the case of Dilip Dahanukar
(supra) did not accept the submissions made by learned
Additional Public Prosecutor.
10. The Division Bench expressed its disagreement
with the view taken in the case of Mahendra Tadvi (supra)
and relying upon the decision of Dilip Dahanukar (supra)
decided the appeal on merits even though the appellant –
accused was absconding. It also appears from the judgement
in the case of Bhimsinghbhai Rathwa (supra), the decision
of Bani Singh (supra) was not brought to the notice of
Division Bench. Similar was the case of Rajubhai Rathwa
(supra) in Criminal Appeal No.369 of 2006, wherein the
Page 9 of 21
HC-NIC Page 9 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
appellant-accused was absconding.
11. The Division Bench in the present appeal has dealt
with the above referred decisions including the decision of
Bani Singh (supra) and in view of differing judgements, the
case is referred to us. However, it is pertinent to note that the
decision of the Apex Court in the case of Surya Baksh Singh
(supra) has not been brought to the notice of the Division
Bench, who has referred the case. We have come across to a
decision referred by Division Bench of this Court in the case
of Mohmad Sharif Gulammahmad V/s. State of Gujarat
reported in 2009(3) Crimes (HC) 598 as well as a
judgement delivered by Division Bench on 17/02/2009 in the
case of Ganeshbhai Virjibhai Rabari V/s. State of Gujarat
in Criminal Appeal No.918 of 2001, by which, Division
Bench had issued certain directions to the State authorities
for taking actions against the absconding accused. Division
Bench held that appropriate steps can be taken by the Court
including attachment of the property by issuing proclamation
for such purpose in accordance with the provision of Sections
82, 83, 84 and 85 of Code of Criminal Procedure. After issuing
such directions, a liberty was granted to the convict to file
appropriate application for reopening the appeal for fresh
consideration after he is arrested or surrenders himself to the
jail authority.
12. In the case of Bani Singh (supra), the larger
bench of the Hon’ble Apex Court in the year 1996, has held
that even in absence of convict or his lawyer, the appeal must
be heard on merits, however, the powers conferred under
section 482 of the Code with the High Court were not
discussed at all, which have been now dealt with in the case of
Surya Baksh Singh (supra). Hon’ble Apex Court found that
tendency of the convict to remain absconding, after filing of
the appeal and getting admitted the same, has been increased
to the large extent which has affected the judicial system as
well as an impression is created in the mind of public at large
about absconding convict, whose appeals were heard on
merits even though they had shown scant disrespect to the
judicial system and flouted the order/s passed by the Court
while releasing him on bail/ temporary bail, etc.. It has been
observed by Hon’ble Apex Court in the case of Surya Baksh
Singh (supra) that statutory right of appeal has been misused
by number of convicts by fleeing from the judicial custody to
defeat the ends of justice after getting orders of bail/
temporary bail/ furlough, etc. and escaped beyond the reach
of the law. The Hon’ble Supreme Court has considered ratio
laid down in the case of Bani Singh (supra) however has held
that in case of recalcitrant appellant, the appeal can be
dismissed. While discussing the power of the High Court
u/s.482 of the Code, it has been observed in Para-7 in the case
of Surya Baksh Singh (supra), which reads as under:
“7. Last, but not the least in our appreciation of the law,
Section 482 CrPC stands in solitary splendour. It preserves
the inherent power of the High Court. It enunciates that
nothing in CrPC shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary, firstly, to “give effect to any order under
CrPC”, words which are not to be found in the Code of
Civil Procedure, 1908 (hereafter referred to as ‘CPC’).
Ergo, the High Court can, while exercising inherent
powers in its criminal jurisdiction, take all necessary steps
for enforcing compliance with its orders. For salutary
reason Section 482 CrPC makes the criminal Court much
more effective and all pervasive than the civil Court insofar
as ensuring obedience of its orders is concerned.
Secondly, Section 482 clarifies that CrPC does not
circumscribe the actions available to the High Court to
prevent abuse of its process, from the inception of
proceedings till their culmination. Judicial process
includes compelling a respondent to appear before it.
When the Court encounters a recalcitrant
Appellant/convict who shows negligible interest in
prosecuting his appeal, none of the Sections in Chapter
XXIX CrPC dealing with appeals, precludes or dissuades
it from dismissing the appeals. It seems to us that passing
such orders would eventually make it clear to all that
intentional and repeated failure to prosecute the appeal
would inexorably lead not merely to incarceration but more
importantly to the confirmation of the conviction and
sentence consequent on the dismissal of the appeal.
Thirdly, none of the provisions of CrPC can possibly limit
the power of the High Court to otherwise secure the ends
of justice. While it is not possible to define the concept of
“justice”, suffice it to say that it encompasses not just the
rights of the convict, but also of the victims of crime as
well as of the law abiding section of society who look
towards the Courts as vital instruments for preservation of
peace and the curtailment or containment of crime by
punishing those who transgress the law. If convicts can
circumvent the consequence of their conviction, peace,
tranquility and harmony in society will be reduced to a
chimera. Section 482 emblazons the difference between
preventing the abuse of the jural process on the one
hand and securing of the ends of justice on the other. It
appears to us that Section 482 CrPC has not been given
due importance in combating the rampant malpractice of
filing appeals only for scotching sentences imposed by
criminal Courts.”
13. While considering the case of Bani Singh (supra),
Hon’ble Apex Court in para-12 in the case of Surya Baksh
Singh (supra) has observed as under:
“12. Indeed, the Court in Bani Singh Case was not
confronted by the wilful abscondence of the appellant
concerned. It is noteworthy that the High Court had not
taken steps calculated to secure the presence of the
appellant before it. On the contrary it had palpably
adopted the less tedious course of simply dismissing the
appeal. Bani Singh overruled the Order in Ram Naresh
Yadav which had prescribed that a criminal appeal could be
disposed of on merits only after hearing the appellant or
his counsel. Signally, the Court had observed that in
order to enforce discipline the appeal could be dismissed
for nonprosecution.
In both these cases it is apparent that
the High Court had not taken any steps to secure the
presence of the appellant; in other words, that there was
no material to manifest that the appellant had
Page 13 of 21
HC-NIC Page 13 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
abandoned his appeal or had no intention to prosecute it.
In Bani Singh attention of the Court was not drawn to the
views of a Coordinate Bench in Kishan Singh decided four
years previously on 2.11.1992. Having carefully read
through both the opinions we think it important to clarify
that Bani Singh does not cogitate or reflect upon the
options available to the Court which is faced with a
recalcitrant Appellant who is not prosecuting his appeal,
in flagrant violation and abuse of the bail orders granted
in his favour. Kishan Singh deals precisely with the
options open to the Appellate Court at the preliminary
hearing of an appeal.”
14. Hon’ble Apex Court has shown concern about
impact of absconding accused in society in para-16 in the case
of Bani Singh (supra), which reads as under:
"16. We cannot close our eyes to the reality that less than
twenty per cent of prosecutions are successful; the rest are
futile largely because of inept, shoddy or substandard
investigation and prosecution. Even in cases where the
prosecution succeeds in proving the guilt of the
accused, punishment is emasculated by convicts not because
of their succeeding in having their conviction overturned
and reversed by the appellate court, but by going
underground and disappearing from society after receiving
reprieve from incarceration from the appellate court. We
are convinced that the interests of society at large are
being repeatedly sacrificed for the exaggerated, if not
misplaced concern for what is fashionably termed as
Page 14 of 21
HC-NIC Page 14 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
“human rights” of convicts. Recent judgments of the
Court contain a perceptible dilution of legal principles such
as the right of silence of the accused. The Supreme Court
has, in several cases, departed from this rule in
enunciating, inter alia, that the accused are dutybound
to
give a valid explanation of facts within their specific and
personal knowledge in order to dispel doubts on their
complicity. Even half a century ago this would have been
a jural anathema. Given the woeful success rate of the
prosecution, if even the relatively niggard number of
convicts are permitted to circumvent their sentences,
crime is certain to envelop society. Law is dynamic and
not immutable or static. It constantly adapts itself to
critically changing compulsions of society. (See State of
Punjab v. Devans Modern Breweries Ltd. (2004)11 SCC26)”
15. Hon’ble Apex Court has also considered the
decision rendered in the case of K.D.Panduranga V/s. State
of Karnataka reported in 2013(3) SCC 721, which has dealt
with the question of appointing an amicus curiae for the
absconding appellant – convict. Hon’ble Apex Court
considering the case of Panduranga (supra), in Paragraph
Nos.24, 25 and 26 and remanded the matter to the High Court
for fresh hearing since the convict had requested for
rehearing of the appeal on merits. Paragraph Nos.24, 25 and
26 in the decision delivered in the case of Surya Baksh Singh
(supra), reads as under:
"24. It seems to us that it is necessary for the Appellate
Court which is confronted with the absence of the convict
Page 15 of 21
HC-NIC Page 15 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
as well as his counsel, to immediately proceed against
the persons who stood surety at the time when the convict
was granted bail, as this may lead to his discovery and
production in Court. If even this exercise fails to locate and
bring forth the convict, the appellate court is empowered to
dismiss the appeal. We fully and respectfully concur with
the recent elucidation of the law, profound yet
perspicuous, in K.S. Panduranga v. State of Karnataka
(2013) 3 SCC 721. After a comprehensive analysis of
previous decisions our learned Brother had distilled the
legal position into six propositions: (SCC P.734, para 19)
“19.1 that the High Court cannot dismiss an appeal for
nonprosecution
simpliciter without examining the merits;
19.2 that the Court is not bound to adjourn the matter if
both the appellant or his counsel/lawyer are absent;
19.3 that the Court may, as a matter of prudence or
indulgence, adjourn the matter but it is not bound to do so;
19.4 that it can dispose of the appeal after perusing the
record and judgment of the trial court.
19.5 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
appellantaccused
if his lawyer is not present, and if the
lawyer is absent and the court deems it appropriate to
appoint a lawyer at the State expense to assist it, nothing in
Page 16 of 21
HC-NIC Page 16 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
law would preclude the court from doing so; and
19.6 that if the case is decided on merits in the
absence of the appellant, the higher court can remedy the
situation.”
25. The enunciation of the inherent powers of the High
Court in exercise of its criminal jurisdiction already
articulated by this Court on several occasions motivates us
to press Section 482 into operation. We reiterate that
there is an alarming and sinister increase in instances where
convicts have filed appeals apparently with a view to
circumvent and escape undergoing the sentences awarded
against them. The routine is to file an appeal, apply and
get enlarged on bail or get exempted from surrender, and
thereafter wilfully to become untraceable or
unresponsive. It is the bounden duty cast upon the Judge
not merely to ensure that an innocent person is not
punished but equally not to become a mute spectator to
the spectacle of the convict circumventing his conviction.
(See Stirland v. Director of Public Prosecutions, 1944 AC
315, quoted with approval by Arijit Pasayat, J. in State of
Punjab v. Karnail Singh (2003) 11 SCC 271). If the Court
is derelict in doing its duty, the social fabric will be rent
asunder and anarchy will rule everywhere. It is, therefore,
imperative to put an end to such practice by the
expeditious disposal of appeals. The inherent powers of
the High Court, poignantly preserved in Section 482 of the
CrPC, can also be pressed into service but with care, caution
and circumspection.
Page 17 of 21
HC-NIC Page 17 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
26. Reverting back to the facts of the present case a
perusal of the impugned order makes it abundantly
evident that the High Court has considered the case in
all its complexities. The argument that the High Court
was dutybound
to appoint an amicus curiae is not
legally sound. Panduranga correctly considers Mohd. Sukur
Ali v. State of Assam as per incuriam, inasmuch as the
latter mandates the appointment of an amicus curiae and is
thus irreconcilable with Bani Singh. In the case in hand
the High Court has manifestly discussed the evidence that
have been led, and finding it of probative value, has come
to the conclusion that the conviction is above appellate
reproach correction and interference. In view of the
analysis of the law the contention raised before us that it
was essential for the High Court to have appointed an
amicus curiae is wholly untenable. The High Court has
duly undertaken the curial responsibility that fastens
upon the appellate court, and cannot be faulted on the
approach adopted by it. In this respect, we find no error.”
16. In view of the ratio laid down by the Apex Court,
we are of the opinion that the High Court while dealing with a
conviction appeal wherein convict/ advocate is/are not
available, following procedure is required to be considered at
the time of final hearing:
(i) If the Advocate appearing for the appellant -
convict is present and is ready to proceed with the
appeal, the Court has to decide the same on merits
and reasoned judgement is to be delivered even if
Page 18 of 21
HC-NIC Page 18 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
the convict is absconding.
It is needless to say that the convict
should always be subjected to consequences of his
abscondance.
(ii) If the convict is absconding and his advocate is
absent, and if the convict has jumped the bail/
temporary bail granted by the High Court, High
Court itself, shall take recourse provided under the
provisions of Criminal Procedure Code to secure
the presence of absconding convict and can issue
non-bailable warrant, passing orders of
attachment of his property declaring him
proclaimed offender, etc. under sections 82, 83, 84
and 85 of the Code of Criminal Procedure.
After exhausting all possible effort if the
convict could not be traced out and if the High
Court is satisfied and is of the opinion that the
convict is recalcitrant and has shown total
disrespect to the orders passed by the High Court
and has jumped the bail/ temporary bail, the High
Court can exercise its inherent power u/s.482 of
the Code and can dismiss the appeal.
(iii) If the convict was released pursuant to orders
passed by the concerned Department of the State/
Jail authority (like furlough leave, etc.) and is not
available at the time of hearing of the appeal, the
jail authority shall submit a detailed report to the
High Court about the steps undertaken by the
concerned Department / Jail authority to secure the
Page 19 of 21
HC-NIC Page 19 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
presence of the absconding convict.
If the High Court is satisfied with the said
report and comes to the conclusion that the convict
is recalcitrant and has shown disrespect to the
judicial system, his appeal can be dismissed.
(iv) If the appeal is dismissed on the ground of nonavailability
of convict and subsequently if the
convict surrenders or is arrested, he may file
application for restoration of his appeal for hearing
the same on merits.”
17. It is needless to say that if the Bench comes across
a criminal appeal, wherein it finds that the case of absconding
convict does not fall in any of the above referred
contingencies, it can exercise its inherent powers provided
under section 482 of the Code, which would entitle it to make
such orders, as may be necessary to secure the ends of
justice.
18. Considering the decision by the Hon’ble Apex
Court in the case of Bani Singh (supra), K.S.Panduranga
(supra) as well as in the case of Surya Baksh Singh (supra)
and considering the several decisions, we hereby hold that the
ratio laid down by the Hon’ble Apex Court in the case of Bani
Singh (supra), K.S.Panduranga (supra) read with Surya
Baksh Singh (supra), would hold the field in case of an
absconding convict and not the ratio laid down by the Hon’ble
Apex Court in the case of Dilip S. Dahanukar (supra) as
observed and relied upon by the co-ordinate Bench in the
Page 20 of 21
HC-NIC Page 20 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
case of Rajubhai Jangubhai Rathwa (supra) and
Bhimsingbhai Varjubhai Rathwa (supra) since the same
deals with Sections 357 and 374 of the Code. Since the
Division Bench of this Court while delivering the judgement in
case of Mahendra Tadvi (supra), had not considered the
ratio laid down by the Apex Court in the case of Bani Singh
(supra), the same is per-incurrium. Answered accordingly.
Office is directed to list this appeal before
appropriate Court for further hearing.
sd/-
[A.J.DESAI, J.]
sd/-
[A.G.URAIZEE,J.]
sd/-
[K.J.THAKER, J.]
*dipti
Page 21 of 21
HC-NIC Page 21 of 21 Created On Fri Apr 29 13:07:06 IST 2016
Print Page
bench of the Hon’ble Apex Court in the year 1996, has held
that even in absence of convict or his lawyer, the appeal must
be heard on merits, however, the powers conferred under
section 482 of the Code with the High Court were not
discussed at all, which have been now dealt with in the case of
Surya Baksh Singh (supra). Hon’ble Apex Court found that
tendency of the convict to remain absconding, after filing of
the appeal and getting admitted the same, has been increased
to the large extent which has affected the judicial system as
well as an impression is created in the mind of public at large
about absconding convict, whose appeals were heard on
merits even though they had shown scant disrespect to the
judicial system and flouted the order/s passed by the Court
while releasing him on bail/ temporary bail, etc.. It has been
observed by Hon’ble Apex Court in the case of Surya Baksh
Singh (supra) that statutory right of appeal has been misused
by number of convicts by fleeing from the judicial custody to
defeat the ends of justice after getting orders of bail/
temporary bail/ furlough, etc. and escaped beyond the reach
of the law. The Hon’ble Supreme Court has considered ratio
laid down in the case of Bani Singh (supra) however has held
that in case of recalcitrant appellant, the appeal can be
dismissed. While discussing the power of the High Court
u/s.482 of the Code, it has been observed in Para-7 in the case
of Surya Baksh Singh (supra), which reads as under:
“7. Last, but not the least in our appreciation of the law,
Section 482 CrPC stands in solitary splendour. It preserves
the inherent power of the High Court. It enunciates that
nothing in CrPC shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary, firstly, to “give effect to any order under
CrPC”, words which are not to be found in the Code of
Civil Procedure, 1908 (hereafter referred to as ‘CPC’).
Ergo, the High Court can, while exercising inherent
powers in its criminal jurisdiction, take all necessary steps
for enforcing compliance with its orders. For salutary
reason Section 482 CrPC makes the criminal Court much
more effective and all pervasive than the civil Court insofar
as ensuring obedience of its orders is concerned.
Secondly, Section 482 clarifies that CrPC does not
circumscribe the actions available to the High Court to
prevent abuse of its process, from the inception of
proceedings till their culmination. Judicial process
includes compelling a respondent to appear before it.
When the Court encounters a recalcitrant
Appellant/convict who shows negligible interest in
prosecuting his appeal, none of the Sections in Chapter
XXIX CrPC dealing with appeals, precludes or dissuades
it from dismissing the appeals. It seems to us that passing
such orders would eventually make it clear to all that
intentional and repeated failure to prosecute the appeal
would inexorably lead not merely to incarceration but more
importantly to the confirmation of the conviction and
sentence consequent on the dismissal of the appeal.
Thirdly, none of the provisions of CrPC can possibly limit
the power of the High Court to otherwise secure the ends
of justice. While it is not possible to define the concept of
“justice”, suffice it to say that it encompasses not just the
rights of the convict, but also of the victims of crime as
well as of the law abiding section of society who look
towards the Courts as vital instruments for preservation of
peace and the curtailment or containment of crime by
punishing those who transgress the law. If convicts can
circumvent the consequence of their conviction, peace,
tranquility and harmony in society will be reduced to a
chimera. Section 482 emblazons the difference between
preventing the abuse of the jural process on the one
hand and securing of the ends of justice on the other. It
appears to us that Section 482 CrPC has not been given
due importance in combating the rampant malpractice of
filing appeals only for scotching sentences imposed by
criminal Courts.”
13. While considering the case of Bani Singh (supra),
Hon’ble Apex Court in para-12 in the case of Surya Baksh
Singh (supra) has observed as under:
“12. Indeed, the Court in Bani Singh Case was not
confronted by the wilful abscondence of the appellant
concerned. It is noteworthy that the High Court had not
taken steps calculated to secure the presence of the
appellant before it. On the contrary it had palpably
adopted the less tedious course of simply dismissing the
appeal. Bani Singh overruled the Order in Ram Naresh
Yadav which had prescribed that a criminal appeal could be
disposed of on merits only after hearing the appellant or
his counsel. Signally, the Court had observed that in
order to enforce discipline the appeal could be dismissed
for nonprosecution.
In both these cases it is apparent that
the High Court had not taken any steps to secure the
presence of the appellant; in other words, that there was
no material to manifest that the appellant had
abandoned his appeal or had no intention to prosecute it.
In Bani Singh attention of the Court was not drawn to the
views of a Coordinate Bench in Kishan Singh decided four
years previously on 2.11.1992. Having carefully read
through both the opinions we think it important to clarify
that Bani Singh does not cogitate or reflect upon the
options available to the Court which is faced with a
recalcitrant Appellant who is not prosecuting his appeal,
in flagrant violation and abuse of the bail orders granted
in his favour. Kishan Singh deals precisely with the
options open to the Appellate Court at the preliminary
hearing of an appeal.”
14. Hon’ble Apex Court has shown concern about
impact of absconding accused in society in para-16 in the case
of Bani Singh (supra), which reads as under:
"16. We cannot close our eyes to the reality that less than
twenty per cent of prosecutions are successful; the rest are
futile largely because of inept, shoddy or substandard
investigation and prosecution. Even in cases where the
prosecution succeeds in proving the guilt of the
accused, punishment is emasculated by convicts not because
of their succeeding in having their conviction overturned
and reversed by the appellate court, but by going
underground and disappearing from society after receiving
reprieve from incarceration from the appellate court. We
are convinced that the interests of society at large are
being repeatedly sacrificed for the exaggerated, if not
misplaced concern for what is fashionably termed as
Page 14 of 21
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1564 of 2009
NIRAJ DEVNARAYAN SHUKLA Vs STATE OF GUJARAT
CORAM: MR.JUSTICE A.J.DESAI
AND
MR.JUSTICE A.G.URAIZEE
AND
MR.JUSTICE K.J.THAKER
Date : 28/07/2015
Citation;2016 CRLJ452
1. By CAV judgement dated 12/03/2015 passed by
Division Bench of this Court (Coram: Hon’ble Mr.Justice Anant
S. Dave and Hon’ble Mr.Justice G.B.Shah), following question
has been referred to the larger bench for the answer. The
question reads as under:
“Whether law laid down by the Division Bench of
this Court in case of Rajubhai Jangubhai
Rathwa (supra) and Bhimsingbhai
Varjubhai Rathwa & Anr. (supra) is correct
law holding that Criminal Appeal under Section
374 of Cr.P.C. filed by a convict who is
absconding at the time of final hearing to be
heard on merit by applying law laid down in the
case of Dilip S Dahanukar (supra) in the
context of interpretation of Section 357 of
Cr.P.C. about payment of compensation to
victim in a case arising out of Sections 138 and
139 of Negotiable Instrument Act holding that
Criminal Appeal under Section 374 of Cr.P.C. is a
statutory as well as fundamental right affecting
liberty of a person guaranteed under Article 21
of the Constitution of India and that it cannot be
impaired with or curtailed in any manner or
subjected to any condition and further holding
that above decision was not considered in the
case of Mahendra Bhogilal Tadvi (supra) by
earlier Division Bench and law laid down in the
Page 2 of 21
HC-NIC Page 2 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
case of Mahendra Bhogilal Tadvi (supra) is
therefore, per incurrium.”
2. Though the above mentioned specific question has been
referred to the larger Bench, considering the arguments
advanced by learned advocates appearing for the respective
parties, the law laid down by Hon’ble Apex Court as well as
judgements (reported /unreported) of this Court and CAV
judgement, by which, the case is referred, we have come to
the conclusion that after answering to the question itself in
addition to the same, we would like to elaborate the
procedure enumerated in this judgement, to be adopted by
the High Court while dealing with a conviction appeal, at final
hearing stage, when the advocate and/or convict is not
available to assist the Court.
3. Brief facts, emerging from the record, are as under:
That the aforesaid appeal has been preferred by three
convicts challenging the judgement and order of conviction
dated 04/08/2009 passed by learned Sessions Judge in
Sessions Case No.350 of 2007, by which, the convicts have
been sentenced to suffer rigorous imprisonment for 14 years
for the offence punishable under Section 304(B)(2) of Indian
Penal Code; rigorous imprisonment for 10 years for the
offence punishable under section 306 of the Indian Penal
Code and rigorous imprisonment for one year for the offence
punishable under section 4 of the Dowry Act and fine is also
imposed for each of the offence.
All the convicts have challenged the judgement and
order of conviction and sentence, by way of preferring the
aforesaid appeal, which was filed through common advocate.
The appeal came to be admitted on 01/09/2009. A paper book
Page 3 of 21
HC-NIC Page 3 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
was prepared consisting of all oral as well as documentary
evidences led before the Sessions Judge.
The appeal came to be listed for final hearing
before Division Bench on 12/03/2015. Learned Additional
Public Prosecutor appearing for the State Government
submitted that out of three appellants-convicts, appellant
No.1 was released on furlough leave in the year 2011 for a
period of 16 days, however, has never surrendered before the
jail authority on completion of furlough leave. It was further
declared by the jail authority that appellant no.1 is
absconding and is not available. An affidavit was filed by the
father of absconding appellant No.1 (who is one of the
appellants/convicts), by which, he has declared that he was
not in contact with his absconding son and does not know
whereabout of his son.
Learned Additional Public Prosecutor by relying
upon the decision rendered in the case of Mahendra
Bhogilal Tadvi V/s. State of Gujarat reported in 2008(3)
GLH 622 delivered by Division Bench of this Court, submitted
that the appeal qua absconding appellant No.1 may be
dismissed for non-prosecution. The attention of Division
Bench, before whom the appeal was listed for final hearing,
was brought to the notice by the learned advocate appearing
for the appellants, of two unreported decisions of Division
Bench of this Court rendered in the case of Rajubhai
Jangubhai Rathwa V/s. State of Gujarat & 1 on 06/09/2012
in Criminal Appeal No.369 of 2006 as well as in the case of
Bhimsingbhai Varjubhai Rathwa & Anr. V/s. State of
Gujarat delivered on 25/07/2012 in Criminal Appeal
No.1066 of 2006, and the bench was requested to proceed
Page 4 of 21
HC-NIC Page 4 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
further with the appeal on merits even though one of the
appellant – convict was absconding. The Division Bench, who
had dealt with these two criminal appeals, had considered the
case of Mahendra Tadvi (Supra) as well as the law laid
down by Hon’ble Supreme Court in the case of Dilip S.
Dahanukar V/s. Kotak Mahindra Co. Ltd. and Anr.
reported in 2007(3) GLH 244. The Division Bench, did not
agree with the proposition laid down in the case of Mahendra
C. Tadvi (supra), proceeded with the appeal on merits and
decided the appeals on merits, relying upon the decision of
Dilip S. Dahanukar (supra).
4. The Division Bench, while dealing with the present
appeal, considered above mentioned judgements and the ratio
laid down by the Apex Court in the case of Bani Singh V/s.
State of Uttar Pradesh - AIR 1996 SC 2439 and other
reported and unreported decisions of co-ordinate Bench of
this Court, found it necessary to refer the matter to Larger
Bench.
5. Mr.K.B.Anandjiwala, learned senior counsel
appearing for the appellant – convict would submit that larger
bench of Hon’ble Apex Court in case of Bani Singh (Supra)
has held that when a conviction appeal is admitted, it is
bounden duty of the court to decide such conviction appeal on
merits only i.e. after considering the evidence (record and
proceedings of the sessions Court) and is bound to assign
reasons while dealing with such appeal. He would submit that
under the provisions of Sections 385 and 386 of Indian Penal
Code,1973, it is mandatory for the Court to decide an appeal
on merits once it is admitted, even though the convict has
Page 5 of 21
HC-NIC Page 5 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
jumped the bail / temporary bail/ furlough leave or has not
surrendered to the jail authority at the end of period, for
which, he has been released from the jail.
By relying upon the case of Dilip Dahanukar
(supra) Mr.Anandjiwala, learned senior counsel, submits that
the appeal against the conviction is a fundamental rights of a
convict and can never be interfered with or subjected to any
conditions. He would submit that coordinate Division Bench of
this Court in the case of Rajubhai Rathwa (supra) and
Bhimsingbhai (supra) has followed both these judgements
and has rightly shown its disagreement with the proposition of
law laid down in case of Mahendra Tadvi (supra). He,
therefore, would submit that though one of the appellants is
absconding, the appeal should be finally decided only and only
on merits and cannot be dismissed for non prosecution.
6. On the other hand, Mr.Mitesh Amin, learned Public
Prosecutor appearing for the respondent - State of Gujarat
has assisted us, by taking us through several decisions, which
were not brought to the notice of earlier Division Benches
including the bench, which has referred this question. He
would submit that in the change scenario of the society,
Hon’ble Apex Court had an occasion to deal with the cases,
wherein the convict/s or his advocate were not available at
the time of hearing of the appeal. It was argued that Hon’ble
Apex Court has considered several judgements delivered by
Hon’ble Apex Court itself including the case of Bani Singh
(supra) and has asked the High Court to exercise its inherent
power u/s.482 of the Code when it finds that the convict has
abused the judicial process.
By taking us through the decision rendered in the
Page 6 of 21
HC-NIC Page 6 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
case of Surya Baksh Singh V/s. State of Uttar Pradesh -
(2014)14 SCC 222, he would submit that the Highest Court
of the country has shown concern about increasing number of
convicts, who have after availing their statutory rights of
appeal, have abused the judicial process and have shown total
disrespect to the judicial system by not surrendering to the
jail authority. He would submit that Hon'ble Supreme Court
has come down heavily about rampant malpractice of fleeing
from hearing of the appeal, subsequent to admissions of their
appeals. He would further submit that if Appellate Court is
satisfied that the convict is a recalcitrant, who has abandoned
his appeal and has committed breach of terms and conditions
imposed while releasing him on bail/ temporary bail/ furlough
leave and has abused the bail order granted in favour of him,
the Court can exercise its power u/s.482 of the Code and can
dismiss the conviction appeal in his absence.
7. Mr.Mitesh Amin, learned Public Prosecutor would
submit that while deciding the case of Mahendra Tadvi
(supra), the law laid down by Hon’ble Apex Court in the case
of Bani Singh (supra) was not brought to the notice of the
said Bench and, therefore, it was held that the appeal filed by
the convict, who has no respect for the judicial system,
requires to be dismissed, without going into merits. He would
further submit that in case of Rajubhai Rathwa (supra) and
Bhimsingbhai Rathwa (supra), Division Bench relied upon
the decision delivered in the case of Dilip Dahanukar
(supra), which deals with the provisions of Sections 357 and
374 of the Code of Criminal Procedure. He would submit that
in the case of Dilip Dahanukar (supra), Hon’ble Apex Court
Page 7 of 21
HC-NIC Page 7 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
has dealt with a case, wherein statutory as well as
fundamental rights guaranteed under Article 21 of the
Constitution of India of convict were involved. He would
further submit that Division Bench of this Court had no
occasion to deal with the power of the Appellate Court u/s.482
of the Code, which have been dealt with by the Hon’ble Apex
Court in the case of Surya Baksh Singh (supra) with regard
to recalcitrant convict.
He would further submit that though the reference
has been made with regard to power of the Appellate Court
dealing with absconding convict, in view of and considering
judgement of Surya Baksh Singh (supra) as well as Bani
Singh (supra) of Hon’ble Apex Court, the same can be
answered accordingly.
8. First of all, we propose to examine the ratio laid
down in the case of Mahendra Tadvi (supra), by which, it
has been held that a criminal appeal preferred by the convict
is not required to be heard on merits and can be dismissed for
non-prosecution, if he remains absconded and has shown
disrespect to the judicial system. In the said case, appellant –
accused was released on temporary bail by High Court on
certain terms and conditions for limited period. The convict
had committed breach of the conditions and did not surrender
on expiry of bail period, which was granted for a few days.
Accordingly the appeal was dismissed only on the ground that
the appellant had remained absconded. The said judgement
was delivered on 23/03/2008
9. It appears that the ratio laid down by the Apex
Court in the case of Bani Singh (supra), was not brought to
Page 8 of 21
HC-NIC Page 8 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
the notice of this Court, by which, Hon’ble Apex Court has
held that if the appeal is admitted then the High Court is
bound to peruse the record of the case even if the convict or
his advocate or learned Public Prosecutor do not appear for
hearing. It was further made clear that the appeal must be
considered and disposed of on merits irrespective of the fact
that the appellant or his counsel or public prosecutor is
present or not.
Similar situation arose at the time of hearing of
Rajubhai Jangubhai Rathwa (supra) as well as
Bhimsingbhai Varjubhai Rathwa (supra) before another
Division Bench of this Court. Since the appellant – convict was
absconding, an objection was raised by learned Additional
Public Prosecutor about hearing of the matter on merits in
view of judgement delivered in the case of Mahendra Tadvi
(supra). By CAV judgement dated 6/9/2012, the Division
Bench after considering the judgement of Mahendra Tadvi
(supra) as well as considering the case of Dilip Dahanukar
(supra) did not accept the submissions made by learned
Additional Public Prosecutor.
10. The Division Bench expressed its disagreement
with the view taken in the case of Mahendra Tadvi (supra)
and relying upon the decision of Dilip Dahanukar (supra)
decided the appeal on merits even though the appellant –
accused was absconding. It also appears from the judgement
in the case of Bhimsinghbhai Rathwa (supra), the decision
of Bani Singh (supra) was not brought to the notice of
Division Bench. Similar was the case of Rajubhai Rathwa
(supra) in Criminal Appeal No.369 of 2006, wherein the
Page 9 of 21
HC-NIC Page 9 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
appellant-accused was absconding.
11. The Division Bench in the present appeal has dealt
with the above referred decisions including the decision of
Bani Singh (supra) and in view of differing judgements, the
case is referred to us. However, it is pertinent to note that the
decision of the Apex Court in the case of Surya Baksh Singh
(supra) has not been brought to the notice of the Division
Bench, who has referred the case. We have come across to a
decision referred by Division Bench of this Court in the case
of Mohmad Sharif Gulammahmad V/s. State of Gujarat
reported in 2009(3) Crimes (HC) 598 as well as a
judgement delivered by Division Bench on 17/02/2009 in the
case of Ganeshbhai Virjibhai Rabari V/s. State of Gujarat
in Criminal Appeal No.918 of 2001, by which, Division
Bench had issued certain directions to the State authorities
for taking actions against the absconding accused. Division
Bench held that appropriate steps can be taken by the Court
including attachment of the property by issuing proclamation
for such purpose in accordance with the provision of Sections
82, 83, 84 and 85 of Code of Criminal Procedure. After issuing
such directions, a liberty was granted to the convict to file
appropriate application for reopening the appeal for fresh
consideration after he is arrested or surrenders himself to the
jail authority.
12. In the case of Bani Singh (supra), the larger
bench of the Hon’ble Apex Court in the year 1996, has held
that even in absence of convict or his lawyer, the appeal must
be heard on merits, however, the powers conferred under
section 482 of the Code with the High Court were not
discussed at all, which have been now dealt with in the case of
Surya Baksh Singh (supra). Hon’ble Apex Court found that
tendency of the convict to remain absconding, after filing of
the appeal and getting admitted the same, has been increased
to the large extent which has affected the judicial system as
well as an impression is created in the mind of public at large
about absconding convict, whose appeals were heard on
merits even though they had shown scant disrespect to the
judicial system and flouted the order/s passed by the Court
while releasing him on bail/ temporary bail, etc.. It has been
observed by Hon’ble Apex Court in the case of Surya Baksh
Singh (supra) that statutory right of appeal has been misused
by number of convicts by fleeing from the judicial custody to
defeat the ends of justice after getting orders of bail/
temporary bail/ furlough, etc. and escaped beyond the reach
of the law. The Hon’ble Supreme Court has considered ratio
laid down in the case of Bani Singh (supra) however has held
that in case of recalcitrant appellant, the appeal can be
dismissed. While discussing the power of the High Court
u/s.482 of the Code, it has been observed in Para-7 in the case
of Surya Baksh Singh (supra), which reads as under:
“7. Last, but not the least in our appreciation of the law,
Section 482 CrPC stands in solitary splendour. It preserves
the inherent power of the High Court. It enunciates that
nothing in CrPC shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary, firstly, to “give effect to any order under
CrPC”, words which are not to be found in the Code of
Civil Procedure, 1908 (hereafter referred to as ‘CPC’).
Ergo, the High Court can, while exercising inherent
powers in its criminal jurisdiction, take all necessary steps
for enforcing compliance with its orders. For salutary
reason Section 482 CrPC makes the criminal Court much
more effective and all pervasive than the civil Court insofar
as ensuring obedience of its orders is concerned.
Secondly, Section 482 clarifies that CrPC does not
circumscribe the actions available to the High Court to
prevent abuse of its process, from the inception of
proceedings till their culmination. Judicial process
includes compelling a respondent to appear before it.
When the Court encounters a recalcitrant
Appellant/convict who shows negligible interest in
prosecuting his appeal, none of the Sections in Chapter
XXIX CrPC dealing with appeals, precludes or dissuades
it from dismissing the appeals. It seems to us that passing
such orders would eventually make it clear to all that
intentional and repeated failure to prosecute the appeal
would inexorably lead not merely to incarceration but more
importantly to the confirmation of the conviction and
sentence consequent on the dismissal of the appeal.
Thirdly, none of the provisions of CrPC can possibly limit
the power of the High Court to otherwise secure the ends
of justice. While it is not possible to define the concept of
“justice”, suffice it to say that it encompasses not just the
rights of the convict, but also of the victims of crime as
well as of the law abiding section of society who look
towards the Courts as vital instruments for preservation of
peace and the curtailment or containment of crime by
punishing those who transgress the law. If convicts can
circumvent the consequence of their conviction, peace,
tranquility and harmony in society will be reduced to a
chimera. Section 482 emblazons the difference between
preventing the abuse of the jural process on the one
hand and securing of the ends of justice on the other. It
appears to us that Section 482 CrPC has not been given
due importance in combating the rampant malpractice of
filing appeals only for scotching sentences imposed by
criminal Courts.”
13. While considering the case of Bani Singh (supra),
Hon’ble Apex Court in para-12 in the case of Surya Baksh
Singh (supra) has observed as under:
“12. Indeed, the Court in Bani Singh Case was not
confronted by the wilful abscondence of the appellant
concerned. It is noteworthy that the High Court had not
taken steps calculated to secure the presence of the
appellant before it. On the contrary it had palpably
adopted the less tedious course of simply dismissing the
appeal. Bani Singh overruled the Order in Ram Naresh
Yadav which had prescribed that a criminal appeal could be
disposed of on merits only after hearing the appellant or
his counsel. Signally, the Court had observed that in
order to enforce discipline the appeal could be dismissed
for nonprosecution.
In both these cases it is apparent that
the High Court had not taken any steps to secure the
presence of the appellant; in other words, that there was
no material to manifest that the appellant had
Page 13 of 21
HC-NIC Page 13 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
abandoned his appeal or had no intention to prosecute it.
In Bani Singh attention of the Court was not drawn to the
views of a Coordinate Bench in Kishan Singh decided four
years previously on 2.11.1992. Having carefully read
through both the opinions we think it important to clarify
that Bani Singh does not cogitate or reflect upon the
options available to the Court which is faced with a
recalcitrant Appellant who is not prosecuting his appeal,
in flagrant violation and abuse of the bail orders granted
in his favour. Kishan Singh deals precisely with the
options open to the Appellate Court at the preliminary
hearing of an appeal.”
14. Hon’ble Apex Court has shown concern about
impact of absconding accused in society in para-16 in the case
of Bani Singh (supra), which reads as under:
"16. We cannot close our eyes to the reality that less than
twenty per cent of prosecutions are successful; the rest are
futile largely because of inept, shoddy or substandard
investigation and prosecution. Even in cases where the
prosecution succeeds in proving the guilt of the
accused, punishment is emasculated by convicts not because
of their succeeding in having their conviction overturned
and reversed by the appellate court, but by going
underground and disappearing from society after receiving
reprieve from incarceration from the appellate court. We
are convinced that the interests of society at large are
being repeatedly sacrificed for the exaggerated, if not
misplaced concern for what is fashionably termed as
Page 14 of 21
HC-NIC Page 14 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
“human rights” of convicts. Recent judgments of the
Court contain a perceptible dilution of legal principles such
as the right of silence of the accused. The Supreme Court
has, in several cases, departed from this rule in
enunciating, inter alia, that the accused are dutybound
to
give a valid explanation of facts within their specific and
personal knowledge in order to dispel doubts on their
complicity. Even half a century ago this would have been
a jural anathema. Given the woeful success rate of the
prosecution, if even the relatively niggard number of
convicts are permitted to circumvent their sentences,
crime is certain to envelop society. Law is dynamic and
not immutable or static. It constantly adapts itself to
critically changing compulsions of society. (See State of
Punjab v. Devans Modern Breweries Ltd. (2004)11 SCC26)”
15. Hon’ble Apex Court has also considered the
decision rendered in the case of K.D.Panduranga V/s. State
of Karnataka reported in 2013(3) SCC 721, which has dealt
with the question of appointing an amicus curiae for the
absconding appellant – convict. Hon’ble Apex Court
considering the case of Panduranga (supra), in Paragraph
Nos.24, 25 and 26 and remanded the matter to the High Court
for fresh hearing since the convict had requested for
rehearing of the appeal on merits. Paragraph Nos.24, 25 and
26 in the decision delivered in the case of Surya Baksh Singh
(supra), reads as under:
"24. It seems to us that it is necessary for the Appellate
Court which is confronted with the absence of the convict
Page 15 of 21
HC-NIC Page 15 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
as well as his counsel, to immediately proceed against
the persons who stood surety at the time when the convict
was granted bail, as this may lead to his discovery and
production in Court. If even this exercise fails to locate and
bring forth the convict, the appellate court is empowered to
dismiss the appeal. We fully and respectfully concur with
the recent elucidation of the law, profound yet
perspicuous, in K.S. Panduranga v. State of Karnataka
(2013) 3 SCC 721. After a comprehensive analysis of
previous decisions our learned Brother had distilled the
legal position into six propositions: (SCC P.734, para 19)
“19.1 that the High Court cannot dismiss an appeal for
nonprosecution
simpliciter without examining the merits;
19.2 that the Court is not bound to adjourn the matter if
both the appellant or his counsel/lawyer are absent;
19.3 that the Court may, as a matter of prudence or
indulgence, adjourn the matter but it is not bound to do so;
19.4 that it can dispose of the appeal after perusing the
record and judgment of the trial court.
19.5 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
appellantaccused
if his lawyer is not present, and if the
lawyer is absent and the court deems it appropriate to
appoint a lawyer at the State expense to assist it, nothing in
Page 16 of 21
HC-NIC Page 16 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
law would preclude the court from doing so; and
19.6 that if the case is decided on merits in the
absence of the appellant, the higher court can remedy the
situation.”
25. The enunciation of the inherent powers of the High
Court in exercise of its criminal jurisdiction already
articulated by this Court on several occasions motivates us
to press Section 482 into operation. We reiterate that
there is an alarming and sinister increase in instances where
convicts have filed appeals apparently with a view to
circumvent and escape undergoing the sentences awarded
against them. The routine is to file an appeal, apply and
get enlarged on bail or get exempted from surrender, and
thereafter wilfully to become untraceable or
unresponsive. It is the bounden duty cast upon the Judge
not merely to ensure that an innocent person is not
punished but equally not to become a mute spectator to
the spectacle of the convict circumventing his conviction.
(See Stirland v. Director of Public Prosecutions, 1944 AC
315, quoted with approval by Arijit Pasayat, J. in State of
Punjab v. Karnail Singh (2003) 11 SCC 271). If the Court
is derelict in doing its duty, the social fabric will be rent
asunder and anarchy will rule everywhere. It is, therefore,
imperative to put an end to such practice by the
expeditious disposal of appeals. The inherent powers of
the High Court, poignantly preserved in Section 482 of the
CrPC, can also be pressed into service but with care, caution
and circumspection.
Page 17 of 21
HC-NIC Page 17 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
26. Reverting back to the facts of the present case a
perusal of the impugned order makes it abundantly
evident that the High Court has considered the case in
all its complexities. The argument that the High Court
was dutybound
to appoint an amicus curiae is not
legally sound. Panduranga correctly considers Mohd. Sukur
Ali v. State of Assam as per incuriam, inasmuch as the
latter mandates the appointment of an amicus curiae and is
thus irreconcilable with Bani Singh. In the case in hand
the High Court has manifestly discussed the evidence that
have been led, and finding it of probative value, has come
to the conclusion that the conviction is above appellate
reproach correction and interference. In view of the
analysis of the law the contention raised before us that it
was essential for the High Court to have appointed an
amicus curiae is wholly untenable. The High Court has
duly undertaken the curial responsibility that fastens
upon the appellate court, and cannot be faulted on the
approach adopted by it. In this respect, we find no error.”
16. In view of the ratio laid down by the Apex Court,
we are of the opinion that the High Court while dealing with a
conviction appeal wherein convict/ advocate is/are not
available, following procedure is required to be considered at
the time of final hearing:
(i) If the Advocate appearing for the appellant -
convict is present and is ready to proceed with the
appeal, the Court has to decide the same on merits
and reasoned judgement is to be delivered even if
Page 18 of 21
HC-NIC Page 18 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
the convict is absconding.
It is needless to say that the convict
should always be subjected to consequences of his
abscondance.
(ii) If the convict is absconding and his advocate is
absent, and if the convict has jumped the bail/
temporary bail granted by the High Court, High
Court itself, shall take recourse provided under the
provisions of Criminal Procedure Code to secure
the presence of absconding convict and can issue
non-bailable warrant, passing orders of
attachment of his property declaring him
proclaimed offender, etc. under sections 82, 83, 84
and 85 of the Code of Criminal Procedure.
After exhausting all possible effort if the
convict could not be traced out and if the High
Court is satisfied and is of the opinion that the
convict is recalcitrant and has shown total
disrespect to the orders passed by the High Court
and has jumped the bail/ temporary bail, the High
Court can exercise its inherent power u/s.482 of
the Code and can dismiss the appeal.
(iii) If the convict was released pursuant to orders
passed by the concerned Department of the State/
Jail authority (like furlough leave, etc.) and is not
available at the time of hearing of the appeal, the
jail authority shall submit a detailed report to the
High Court about the steps undertaken by the
concerned Department / Jail authority to secure the
Page 19 of 21
HC-NIC Page 19 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
presence of the absconding convict.
If the High Court is satisfied with the said
report and comes to the conclusion that the convict
is recalcitrant and has shown disrespect to the
judicial system, his appeal can be dismissed.
(iv) If the appeal is dismissed on the ground of nonavailability
of convict and subsequently if the
convict surrenders or is arrested, he may file
application for restoration of his appeal for hearing
the same on merits.”
17. It is needless to say that if the Bench comes across
a criminal appeal, wherein it finds that the case of absconding
convict does not fall in any of the above referred
contingencies, it can exercise its inherent powers provided
under section 482 of the Code, which would entitle it to make
such orders, as may be necessary to secure the ends of
justice.
18. Considering the decision by the Hon’ble Apex
Court in the case of Bani Singh (supra), K.S.Panduranga
(supra) as well as in the case of Surya Baksh Singh (supra)
and considering the several decisions, we hereby hold that the
ratio laid down by the Hon’ble Apex Court in the case of Bani
Singh (supra), K.S.Panduranga (supra) read with Surya
Baksh Singh (supra), would hold the field in case of an
absconding convict and not the ratio laid down by the Hon’ble
Apex Court in the case of Dilip S. Dahanukar (supra) as
observed and relied upon by the co-ordinate Bench in the
Page 20 of 21
HC-NIC Page 20 of 21 Created On Fri Apr 29 13:07:06 IST 2016
R/CR.A/1564/2009 CAV JUDGMENT
case of Rajubhai Jangubhai Rathwa (supra) and
Bhimsingbhai Varjubhai Rathwa (supra) since the same
deals with Sections 357 and 374 of the Code. Since the
Division Bench of this Court while delivering the judgement in
case of Mahendra Tadvi (supra), had not considered the
ratio laid down by the Apex Court in the case of Bani Singh
(supra), the same is per-incurrium. Answered accordingly.
Office is directed to list this appeal before
appropriate Court for further hearing.
sd/-
[A.J.DESAI, J.]
sd/-
[A.G.URAIZEE,J.]
sd/-
[K.J.THAKER, J.]
*dipti
Page 21 of 21
HC-NIC Page 21 of 21 Created On Fri Apr 29 13:07:06 IST 2016
No comments:
Post a Comment