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PETITIONER:

BANI SINGH & ORS.

Vs.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT: 09/07/1996

BENCH:

AHMADI A.M. (CJ)

BENCH:

AHMADI A.M. (CJ)

SINGH N.P. (J)

MANOHAR SUJATA V. (J)

CITATION:

1996 SCC (4) 720 JT 1996 (6) 287

1996 SCALE (5)126

ACT:

HEADNOTE:

JUDGMENT:

THE 9TH DAY OF JULY,1996

Present:

Hon'ble the Chief Justice

Hon'ble Mr.Justice N.P.Singh

Hon'ble Mrs.Justice Sujata V.Manohar

N.P.Midha and K.K.Gupta, Advs. for the appellants

A.S.Pundir, Adv. for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered:

Bani Singh & Others

V.

State of U.P.

J U D G M E N T

Ahmadi,CJI.

The short question that we are called upon to decide in

this appeal is whether the High Court at Allahabad was

Justified in dismissing the appeal filed by the accused-

appellants against the order of conviction and sentence

issued by the trial court, for non-prosecution.

The facts relevant for our consideration can be briefly

stated. On 13.6.1979, the VII Addl. Sessions Judge,

Bulandshahar, recorded an order convicting the appellants

under Sections 366 and 368 of the Indian Penal Code and

sentenced them to rigorous imprisonment for three years with

a fine of Rs.100/- each. The appellants filed an appeal

against this order in the High Court of Allahabad. On

18.6.1979, the appeal was admitted by the High Court and

notice was issued. The High Court also issued an interim

stay on the execution of the sentence and the realization of

fine while granting bail to the appellants. On 28.11.1990,

the matter came up for hearing before the High Court. While

dismissing the appeal for non-prosecution, the Court

recorded the following order :

"The List has been revised. No one

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present to argue the case on behalf

of the appellant, Sri T.B. Islam

A.C.A. is present on behalf of the

State. In view of the law laid down

in the case of Ram Naresh Yadav &

Ors. Vs. State of Bihar, reported

in AIR (SC) 1987, Page 1500, the

appeal is dismissed for non-

prosecution without going into the

merits of the case"

The appellants preferred an appeal before this Court. On

19.1.1995, a Division Bench of this Court, while hearing the

matter, examined the judgment in Ram Naresh Yadav & Ors. Vs.

State of Bihar (supra) and came to the conclusion that it

was in conflict with the earlier ruling of this Court in

Shyam Deo Pandey & Ors. Vs. State of Bihar (AIR 1971 SC

1606). It, therefore, directed that the matter be heard by a

larger bench. Subsequently, the matter was posted before

this Bench.

At this juncture, it would be pertinent to make a brief

reference to the relevant provisions of law having a bearing

on this case. Chapter XXIX of the Code of Criminal

Procedure, 1973 (hereinafter called `Code') comprising

Sections 372-394 deals with `Appeals'. For the purpose of

our examination, the relevant provisions are Sections 384-

386. Section 384, which deals with summary dismissal of

appeals, enables the Appellate Court to summarily dismiss an

appeal "if upon examining the petition of appeal and copy of

the judgment received", it "considers that there is no

sufficient ground for interfering". Section 385 provides

that "if the Appellate Court does not dismiss the appeal

summarily", it "shall cause notice of the time and place at

which such appeal will be heard to be given" to the parties

involved. It further provides that thereafter, the Appellate

Court shall "send for the record of the case if such record

is not already in Court" and "hear the parties". The

relevant part of Section 386 provides that "after perusing

such record and hearing the appellants or his pleader, if he

appears, and the Public Prosecutor, if he appears", the

Appellate Court "may, if it considers that there is no

sufficient ground for interference, dismiss the appeal".

From the facts of the present case, it is clear that

when the matter came up before the High Court, it admitted

the appeal and, following the procedure laid down in Section

385 of the Code, issued notice to the State. In the

circumstances, it is clear that Section 384 of the Code,

which enables the High Court to summarily dismiss an appeal,

is not applicable to the present case. Since the High Court

proceeded to dismiss the appeal when it was next listed for

hearing, it is clear that the provision applicable to these

facts is Section 386 of the Code, though the order of the

High Court does not mention the provision. From the order of

the High Court, it is clear that upon finding the appellants

and their pleader absent, it dismissed the appeal for non-

prosecution without going into the merits of the case.

The law relating to the central issue in this case has

been authoritatively laid down by a Division Bench of this

Court in Shyam Deo's case. Though the case was decided in

the context of Section 423 of the Code of Criminal

Procedure, 1898, (hereinafter called the Old Code) since

that provision materially corresponds to the present Section

386, the interpretation laid down in that case continues to

be sound. The facts of that case were similar, in that,

while hearing an appeal against a conviction, the concerned

High Court, finding the appellants' pleader absent, perused

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the judgment under appeal, and, finding no merit in the

case, dismissed the appeal. This Court took the view that

once the appeal was admitted, it was the duty of the Court

to peruse the record of the case before dismissing it. The

Court considered this to be a mandatory requirement and,

since, in its view, the record of a case is not confined

only to the judgment under appeal, it held that the order of

the High Court was not in conformity with the requirement of

the provision and ordered it to be set aside.

In Ram Naresh Yadav's case, a Division Bench of this

Court was faced with a case where the High Court had

confirmed an order for conviction and sentence without

hearing the appellants. Against these facts, the Court took

the view that, in criminal matters, convicts must be heard

before their matters are decided on merits. It, therefore,

set aside the order of the High Court and remanded the

matter to it for "passing an appropriate order in accordance

law after hearing the appellants or their counsel and on

their failure to engage counsel, after hearing counsel

appointed by the Court to argue on their behalf".

The Division Bench of this Court which referred this

matter to us was of the view that these decisions, rendered

by separate two-judge benches of this Court, are in conflict

with each other. Before we decide on this issue, we must

closely examine the scheme envisaged by the Code in this

regard. The relevant portions of Sections 385 and 386 of the

Code are extracted as under:

385. Procedure for hearing appeals

not dismissed summarily -- (1) If

the Appellate Court does not

dismiss the appeal summarily, it

shall cause notice of the time and

place at which such appeal will be

heard to be given -

(i) to the appellant or his

pleader;

(ii) .... .... ....

(iii) .... .... ....

(iv) .... .... ....

(2) The Appellate Court shall then

send for the record of the case, if

such record is not already

available in that Court, and hear

the parties:

Provided that if the appeal is

only as to the extent or the

legality of the sentence, the Court

may dispose of the appeal without

sending for the record.

(3) .... .... ....

386. Powers of the Appellate Court

-- After perusing such record and

hearing the appellant or his

pleader, if he appears, and the

Public Prosecutor, if he appears,

and in case of an appeal under

Section 377 or Section 378, the

accused, if he appears, the

Appellate Court may, if it

considers that there is no

sufficient ground for interfering,

dismiss the appeal, or may --

xxxx xxxx xxxx "

Section 385(2) clearly states that if the Appellate

Court does not dismiss the appeal summarily, it `shall',

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after issuing notice as required by subsection (1), send for

the record of the case and hear the parties. The proviso,

however, posits that if the appeal is restricted to the

extent or legality of the sentence, the Court need not call

for the record. On a plain reading of the said provision, it

seems clear to us that once the Appellate Court, on an

examination of the grounds of appeal and the impugned

judgment, decides to admit the appeal for hearing, it must

send for the record and then decide the appeal finally,

unless the appeal is restricted to the extent and legality

of the sentence. Obviously, the requirement to send for the

record is provided for to enable the Appellate Court to

peruse the record before finally deciding the appeal. It is

not an idle formality but casts an obligation on the court

to decide the appeal only after it has perused the record.

This is not to say that it cannot be waived even where the

parties consent to its waiver. This becomes clear from the

opening words of Section 386 which say that `after perusing

such record' the court may dispose of the appeal. However,

this Section imposes a further requirement of hearing the

appellant or his pleader, if he appears, and the public

prosecutor, if he appears. This is an extension of the

requirement of Section 385(1) which requires the court to

cause notice to issue as to the time and place of hearing of

the appeal. Once such a notice is issued the accused or his

pleader, if he appears, must be heard.

The question is, where the accused is the appellant and

is represented by a pleader, and the latter fails to appear

when the appeal is called on for hearing, is the Appellate

Court empowered to dispose of the appeal after perusing the

record on its own or, must it adjourn the appeal to a future

date and intimate the accused to be present on the next date

of hearing?

In Shyam Deo's case, this Court ruled that the

Appellate Court must peruse the record before disposing of

the appeal; the appeal has to be disposed of on merits even

if it is being disposed of in the absence of the appellant

or his pleader. Interpreting Section 423 of the Old Code

(the corresponding provisions are Sections 385-386 of the

present Code), this Court in paragraph 19 of the judgment

held as under:

"The consideration of the appeal on

merits at the stage of final

hearing and to arrive at a decision

on merits and to pass final orders

will not be possible unless the

reasoning and findings recorded in

the judgment under appeal are

tested in the light of the record

of the case. After the records are

before the court and the appeal is

set down for hearing, it is

essential that the Appellate Court

should (a) peruse such record, (b)

hear the appellant or his pleader,

if he appears, and (c) hear the

public prosecutor, if he appears.

After complying with these

requirements, the Appellate Court

has full power to pass any of the

orders mentioned in the section. It

is to be noted that if the

appellant or his pleader is not

present or if the public prosecutor

is not present, it is not

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obligatory on the Appellate Court

to postpone the hearing of the

appeal. If the appellant or his

counsel or the public prosecutor,

or both, are not present, the

Appellate Court has jurisdiction to

proceed with the disposal of the

Appeal; but that disposal must he

after the Appellate Court has

considered the appeal on merits. It

is clear that the appeal must be

considered and disposed of on

merits irrespective of the fact

whether tne appellant or his

counsel or the public prosecutor is

present or not. Even if the appeal

is disposed of in their absence,

the decision must be after

consideration on merits."

(Emphasis added)

In our view, the above-stated position is in consonance

with the spirit and language of Section 386 and, being a

correct interpretation of the law, must be followed.

In Ram Naresh Yadav's case, this Court, without making

a specific reference to Section 386 or any other provision

of the Code and without noticing the ratio of Shyam Deo's

case concluded thus:

"It is an admitted position that

neither the appellants nor counsel

for the appellants in support of

the appeal challenging the order of

conviction and sentence, were

heard. It is no doubt true that if

conunsel do not appear when

criminal appeals are called out it

would hamper the working of the

court and create a serious problem

for the court. And if this happens

often the working of the court

would become well nigh impossible.

We are fully conscious of this

dimension of the matter but in

criminal matters the convicts must

be heard before their matters are

decided on merits. The court can

dismiss the appeal for non

prosecution and enforce discipline

or refer the matter to the Bar

Council with this end in view. But

the matter can be disposed of on

merits only after hearing the

appellant or his counsel. The court

might as well appoint a counsel at

State cost to argue on behalf of

the appellants."

(Emphasis added)

What then is the area of conftict between the two

decisions of this Court? In Shyam Deo's case, this Court

ruled that once the Appellate Court has admitted the appeal

to be heard on merits, it cannot dismiss the appeal for non-

prosecution for non-appearance of the appellant or his

counsel, but must dispose of the appeal on merits after

examining the record of the case. It next held that if the

appellant or his counsel is absent, the Appellate Court is

not bound to adjourn the appeal but it can dispose it of on

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merits after perusing the record. In Ram Naresh Yadav's

case, the Court did not analyse the relevant provisions of

the Code nor did it notice the view taken in Shyam Deo's

case but held that if the appellant's counsel is absent, the

proper course would be to dismiss the appeal for

nonprosecution but not on merits; it can be disposed of on

merits only after hearing the appellant or his counsel or

after appointing another counsel at State cost to argue the

case on behalf of the accused.

We have carefully considered the view expressed in the

said two decisions of this Court and, we may state that the

view taken in Shyam Deo's case appears to be sound except

for a minor clarification which we consider necessary to

mention. The plain language of Section 385 makes it clear

that if the Appellate Court does not consider the appeal fit

for summary dismissal, it 'must' call for the record and

Section 386 mandates that after the record is received, the

Appellate Court may dispose of the appeal after hearing the

accused or his counsel. Therefore, the plain language of

Sections 385-386 does not contemplate dismissal of the

appeal for non-prosecution simplicitor. On the contrary, the

Code envisages disposal of the appeal on merits after

perusal and scrutiny of the record. The law clearly expects

the Appellate Court to dispose of the appeal on merits, not

merely by perusing the reasoning of the trial court in the

judgment, but by cross-checking the reasoning with the

evidence on record with a view to satisfyiny itself that the

reasoning and findings recorded by the trial court are

consistent with the material on record. The law, therefore,

does not envisage the dismissal of the appeal for default or

non-prosecution but only contemplates disposal on merits

after perusal of the record. Therefore, with respect, we

find it difficult to agree with the suggestion in Ram Naresh

Yadav's case that if the appellant or his pleader is not

present, the proper course would be to dismiss an appeal for

non-prosecution.

Secondly, the law expects the Appellate Court to give a

hearing to the appellant or his counsel, if he is present,

and to the public prosecutor, if he is present, before

disposal of the appeal on merits. Section 385 posits that if

the appeal is not dismissed summarily, the Appellate Court

shall cause notice of the time and place at which the appeal

will be heard to be given to the appellant or his pleader.

Section 386 then provides that the Appellate Court shall,

after perusing the record, hear the appellant or his

pleader, if he appears. It will be noticed that Section 385

provides for a notice of the time and place of hearing of

the appeal to be given to either the appellant or his

pleader and not to both presumably because notice to the

pleader was also considered sufficient since he was

representing the appellant. So also Section 386 provides for

a hearing to be given to the appellant or his lawyer, if he

is present, and both need not be heard. It is the duty of

the appellant and his lawyer to remain present on the

appointed day, time and place when the appeal is posted for

hearing. This is the requirement of the Code on a plain

reading of Sections 385-386 of the Code. The law does not

enjoin that the Court shall adjourn the case if both the

appellant and his lawyer are absent. If the Court does so as

a matter of prudence or indulgence, it is a different

matter, but it is not bound to adjourn the matter. It can

dispose of the appeal after perusing the record and the

judgment of the trial court. We would, however, hasten to

add that if the accused is in jail and cannot, on his own,

come to court, it would be advisable to adjourn the case and

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fix another date to facilitate the appearance of the

accused/appellant if his lawyer is not present. If the

lawyer is absent, and the court deems it appropriate to

appoint a lawyer at State expense to assist it, there is

nothing in the law to preclude it from doing so. We are,

therefore, of the opinion and we say so with respect, that

the Division Bench which decided Ram Naresh Yadav's case did

not apply the provisions of Sections 385-386 of the Code

correctly when it indicated that the Appellate Court was

under an obligation to adjourn the case to another date if

the appellant or his lawyer remained absent.

Such a view can bring about a stalemate situation. The

appellant and his lawyer can remain absent with impunity,

not once but again and again till the Court issues a warrant

for the appellant's presence. A complaint to the Bar Council

against the lawyer for non-appearance cannot result in the

progress of the appeal. If another lawyer is appointed at

State cost, he too would need the presence of the appellant

for instructions and that would place the Court in the same

situation. Such a procedure can, therefore, prove cumbersome

and can promote indiscipline. Even if a case is decided on

merits in the absence of the appellant, the highrer court

can remedy the situation is there has been a failure of

justice. This would apply equally if the accused is the

respondent for the obvious reason that if the appeal cannot

be disposed of without hearing the respondent or his lawyer,

the progress of the appeal would be halted.

In view of the position in law explained above, we are

of the view that the High Court erred in dismissing the

appeal for non-prosecution simplicitor without examining the

merits. We, therefore, set aside the impugned order and

remit the appeal to the High Court for disposal on merits in

the light of this judgment. The appeal will stand allowed

accordingly.