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Thursday, October 10, 2013

Under sec.482 of Cr.P.C. the appellant High court can dispose the appeal on merits even in the absence of appellant or his lawyer - SURYA BAKSH SINGH Vs. STATE OF U.P. judis.nic.in/supremecourt/filename=40879

Under sec.482 of Cr.P.C. the appellant High court can dispose the appeal on merits even in the absence of appellant or his lawyer and even with out appointing amicus curiae in a routine manner in case of where the appellant after obtaining bail or exemption from surrender - escaped from appearing while the appeal was posted for hearing  =

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  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.
16.   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 duty-bound to appoint an  amicus  curiae  is  not  legally  sound.
 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.
17.   So far as the present Appeal is concerned, since a request for  remand
had been made which we  stoutly  reject,  and  since  the  convict  was  not
represented through counsel before the High Court, we  think  it  proper  to
permit the Appellant an opportunity to argue the Appeal on its  merits.   We
therefore grant Leave and direct that the case be listed for Final  hearing.


                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.  1680  OF 2013
                [Arising out of S.L.P (Crl.) No.9816 of 2009]

Surya Baksh Singh                                         .....Appellant

                       Versus

State of Uttar Pradesh
                                             ....Respondent


                               J U D G M E N T

VIKRAMAJIT SEN, J.
1.    This appeal brings to the fore the rampant manipulation and misuse  of
the statutory right to appeal by an ever increasing number of  convicts  who
take recourse to this remedy with the objective of  defeating  the  ends  of
justice by obtaining  orders  of  bail  or  exemption  from  surrender,  and
thereupon escape beyond the reach of the law.
Jural compulsions now  dictate
that this species of appeals should be consciously dismissed on  the  ground
of occasioning a gross abuse of the judicial process and an annihilation  of
justice.
The need to punish every transgressor of the  law  is  ubiquitously
accepted  in  all  legal  persuasions  throughout  the   ages.  
Kautilya’s
Arthasastra opines that - “By not punishing the guilty and  punishing  those not deserving to be punished,  by  arresting  those  who  ought  not  to  be arrested and not arresting those who ought to be arrested;  and  by  failing to protect subjects from thieves etc. through these causes - decline,  greed
and dis-affection are produced among the subjects. It  is  punishment  alone which maintains both this world and the next.”  
In similar antiquity it  has
been
  observed by Plato in his celebrated treatise Laws  “....not that he  is punished because he did wrong, for that which is done can never  be  undone, but in order that in future times, he, and those who see him corrected,  may utterly hate injustice, or at any rate abate much of their  evil-doing”.  
In
the present time, and from another segment of the  globe  the  necessity  of
punishment has been articulated thus -
  “By  enforcing  a  public  system  of
penalties government removes the grounds for thinking that  others  are  not
complying with the rules. For this reason alone,  a  coercive  sovereign  is
presumably  always  necessary,  even  though  in  a   well-ordered   society
sanctions are not severe and may never  need  to  be  imposed.  Rather,  the
existence of effective penal machinery  serves  as  men's  security  to  one
another” -  A Theory of Justice by Rawls.


2.    It is necessary to  distinguish  dismissal  of  appeals  in  instances
where steps have been taken by the Court for securing the  presence  of  the
Appellant  by  coercive  means,  including  the  issuance  of   non-bailable
warrants  or  initiation  of  proceedings  for  declaring  the  Appellant  a
proclaimed offender by recourse to Part C of  Chapter  VI  of  the  Code  of
Criminal Procedure, 1973 (CrPC for short) on the one hand, and those   where
the Appellant may incidentally and unwittingly be absent when his appeal  is
called on for hearing. The malaise which  we  are  perturbed  about  is  the
wilful withdrawal of the convict from the  appellate  proceedings  initiated
by him after he  has  succeeded  in  gaining  his  enlargement  on  bail  or
exemption from surrender.
3.    The legal provisions on this subject are to be  found  principally  in
Chapter XXIX of the CrPC. Section 372 reiterates the  general  principle  of
law that an appeal is not a right unless it is granted by  a  statute.  This
Section states that no appeal shall lie from any  judgment  or  order  of  a
criminal Court except as provided for by the CrPC or by any  other  law  for
the time being in force.
Section  374(2)  thereafter  stipulates  that  any
person convicted in a trial held  by  a  Sessions  Judge  or  an  Additional
Sessions Judge or in a trial held by any other Court in which a sentence  of
imprisonment for more than seven  years  has  been  passed  against  him  or
against any other person convicted at the same  trial,  may  appeal  to  the
High  Court.
These  provisions  must  immediately  be  compared  with   the
preceding Chapter XXVIII  containing  a  fasciculus  dealing  with  a  Death
Sentence which becomes efficacious only on its being confirmed by  the  High
Court. 
The proviso to Section 368 enjoins  that  an  order  of  confirmation
shall not be made until the period allowed  for  preferring  an  appeal  has
expired, or, if an appeal  is  presented  within  such  period,  until  such
appeal is disposed of. The presence or absence  of  the  accused/convict  in
the cases of Death References, makes little  difference  since  High  Courts
are duty-bound to give  the  matter  its  utmost  and  undivided  attention.
Indubitably, the assistance of Counsel is very important and helpful to  the
Court in coming to its conclusion.  Since it is conceivable that  an  appeal
may not be filed in the High Court by a convict who is to undergo more  than
seven years imprisonment, the efficacy, legal correctness and  propriety  of
such a sentence is not always dependent on receiving the imprimatur  of  the
High Court.
4.    Section 378 of the CrPC inter alia declares  that  no  appeal  to  the
High Court against an order of acquittal shall be  entertained  except  with
its express leave.
Accordingly,  appeals  against  acquittal  are  distinct
from all others.
Section 383 prescribes that if the Appellant is in jail  he
may present his appeal to the  officer  in-charge  of  the  jail  who  shall
thereupon forward  it  to  the  appropriate  Appellate  Court.
Section  384
enables the dismissal  of  appeals  summarily  or  in  limine  provided  the
Appellant or his pleader has received  a  reasonable  opportunity  of  being
heard.
Where appeals are not dismissed summarily,
Section  385  prescribes
the issuance of notice  to  the  Appellant  or  his  pleader  by  the  State
Government indicating the time and place when the appeal has been  scheduled
to be heard. While the Appellate Court  has  the  option  to  call  for  the
records of the case at the stage of the initial hearing of an  appeal  under
Section 384 by virtue of use of the word “may”, it becomes mandatory for  it
to do so at the time of the final hearing.
5.    Section 386 of the CrPC is of importance for the purposes  before  us.
It requires the  Appellate  Court  to  peruse  the  records,  and  hear  the
Appellant or his pleader if  he  appears;  thereafter  it  may  dismiss  the
appeal if it considers that there is insufficient ground  for  interference.
In the case of an appeal from  an  order  of  acquittal  (State  Appeals  in
curial parlance) it may reverse the order and direct  that  further  inquiry
be carried out or that the accused be retried or committed for  trial.  Even
in the case of an appeal from an order of acquittal the Appellate  Court  is
competent to find him guilty and pass sentence on him according to law.
The
proviso to this Section prescribes that the sentence shall not  be  enhanced
unless the accused has had an opportunity of showing cause  against  such  a
proposal, thereby mandating that an accused must  be  present  and  must  be
heard if an order of acquittal is to be upturned and reversed. 
 It  is  thus
significant,  and  so  we  reiterate,  that  the  Legislature  has  cast  an
obligation on the Appellate Court to decide an appeal on its merits only  in
the case of Death References, regardless of whether or  not  an  appeal  has
been preferred by the convict.
6.    Last, but not least in our appreciation of the  law,  Section  482  of
the CrPC stands in solitary splendour. It preserves the  inherent  power  of
the High Court. It enunciates that nothing in the 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 the  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 of its orders.
For  salutary  reason  Section
482 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 the  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 of the  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  the  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
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  of  the  CrPC  has  not  been  given  due
importance in combating the rampant malpractice of filing appeals  only  for
scotching sentences imposed by criminal Courts.
7.    This Court was called upon to construe Section 423  of  the  old  CrPC
(which corresponds to Section 386 of the current CrPC) in the  wake  of  the
dismissal by the High Court of an Appeal on the very next  date  of  hearing
after the issuance of notice. In Shyam Deo Pandey v. State of Bihar,  (1971)
1 SCC 855 : AIR 1971 SC 1606,   the  High  Court  had  recorded  –  “No  one
appears to press the appeal. On perusal of  the  judgment  under  appeal,  I
find no merit in the case. It is  accordingly  dismissed”.   An  application
for restoration of the appeal filed on the same day was  also  rejected  for
not disclosing sufficient grounds for recalling the  dismissal  orders.  The
ratio decidendi of this decision is that the  records  of  the  lower  Court
must be available with the Appellate Court if the condition of ‘perusal’  is
to stand complied with, and therefore the  High  Court  was  found  to  have
erred.
8.    This conundrum thereafter engaged  the  attention  of  a  Three  Judge
Bench in Kishan Singh v. State of U.P. [1992] Supp. 2 SCR 305  :   1993  (3)
SCALE 312 : (1996) 9 SCC  372  decided  on  November  2,  1992.   The  Bench
overruled the observations in the  dismissal  order  passed  in  Ram  Naresh
Yadav v. State of Bihar AIR 1987 SC 1500 and approved Shyam Deo  Pandey;  it
also adverted to similar opinions expressed in Emperor v.  Balumal  Hotchand
AIR 1938 Sind 171.  
It noted the disparate language in Section  384  of  the
CrPC and Order 41 Rule 17 of the CPC before quoting that it is the  duty  of
the Appellate Court to consider the appeal as well  as  the  judgment  under
challenge on its merits.  
However,  it  pithily  observed  that  “where  the
Appellant has been sentenced to imprisonment and he is not in  custody  when
the appeal is taken up for preliminary  hearing,  the  Appellate  Court  can
require him to surrender, and if he  fails  to  obey  the  direction,  other
considerations  may  arise,  which  may  render  the  appeal  liable  to  be
dismissed without consideration of the merits…..”
It  is  of  significance
that the other Three Judge Bench in Bani Singh v. State  of  U.P.  1996  (4)
SCC 720 : AIR 1996  SC  2439  adopted  this  very  dialectic  and  approach,
without reference to Kishan Singh.
It  is  unfortunate  that  Law  Journals
have now adopted the practice of reporting  almost  every  order  passed  by this Court without caring to consider its precedential  value.
Orders,  in
contradistinction to Judgments, contain only  the  decision  of  the  Court.
The pronouncements of the Apex Court command adherence essentially  when  it
is  clear  that  the  law  has  been  considered  in  detail  and  that  its
articulation is, therefore,  an  elucidation  and  exposition  of  the  law.
Faciously,  Ram Naresh Yadav does not fall in this category; in  any  event,
it has been stoutly overruled by Three Judge Bench.   The  words  in  Kishan
Singh quoted by us above are encouragement for applying Section 482  of  the
CrPC to cases where the  Appellant/convict  chooses  not  to  prosecute  the
appeal after being enlarged on bail or being exempted from surrender.
9.    Bani Singh, a Three Judge Bench decision, posits that if an appeal  is
not dismissed summarily, then the Appellate  Court  should,  after  perusing
the records, hear the Appellant or his pleader.
This  Court  clarified  that
“the law does not enjoin that the court shall adjourn the case if  both  the
Appellant and his lawyer are absent. ..... It  can  dispose  of  the  appeal
after perusing the record and judgment of the  Trial  Court.  .....  if  the
accused is in jail and cannot, on his  own,  come  to  Court,  it  would  be
advisable  to  hear  the  case  and  fix  another  date  to  facilitate  the
appearance of the accused/Appellant if his lawyer is  not  present.  If  the
lawyer is absent, and the Court deems it appropriate to appoint a lawyer  at
State expense to assist it, there is nothing in the law to preclude it  from
doing so”.
Indeed, the Court was not confronted by  the  wilful  abscondence
of the concerned Appellant. 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 non-prosecution. 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.
10.   Any discourse on this aspect of the law would  be  incomplete  without
appreciating and assimilating Dharam Pal v. State of U.P.  2008  I  AD  (SC)
597 : AIR 2008 SC 920 : JT 2008 (1) SC  172.  The  contention  canvassed  on
behalf of the accused was that a miscarriage of justice had  occurred  since
the Appellant had not been served with notice of  the  appeal  by  the  High
Court, which nevertheless decided the appeal ex parte.  Reference  was  made
to Bani Singh as also to CrPC’s Chapter XXIX in general,  and  Sections  385
and 386 in particular; conspicuously Section 482 of the CrPC  was  not  even
mentioned. The learned counsel for Dharam Pal had  expressed  his  inability
to argue the case before the High Court. As in the case in hand, this  Court
had perused the impugned Judgment of the High Court and found it to be well-
merited and duly predicated on a careful consideration of  the  material  on
record. It was observed that – “The position, of  course,  would  have  been
different if the High Court had simply dismissed the  appeal  without  going
into the merits...... That being the position, it cannot be  said  that  the
High Court had ignored  the  basic  principles  of  criminal  justice  while
disposing of the appeal ex parte”. Dharam  Pal  and  for  that  matter  Bani
Singh or Shyam Deo Pandey neither proscribe the invocation  of  Section  482
of the CrPC nor opine that dismissal of an appeal  under  Section  482,  for
good  reasons  which  are  lucidly  spelt  out,  is  improper.  It  has  not
hithertofore even been considered that Section 482 of  the  CrPC  should  be
applied in circumstances of the wilful abscondence of the  Appellant/convict
in contumacious and deliberate disregard and disobedience of the  terms  and
conditions on which he was enlarged on bail or exempted from surrender.
11.   The discussion would not be complete without noticing the  Orders   in
Parasuram Patel v. State of Orissa, (1994) 4 SCC 664 and  Madan  Lal  Kapoor
v. Rajiv Thapar, (2007) 7 SCC  623.  In  neither  of  these  cases  had  the
Appellate Court taken steps available to it to ensure the attendance of  the
Appellant. Instead, it appears that the concerned  High  Court  had  adopted
the obviously less tedious approach of dismissing the appeals  only  because
neither the Appellant nor his counsel were present when the case was  called
on for hearing. The Court did  not  ruminate  upon  the  curial  malpractice
which has now become endemic, viz. the filing of appeals  by  convicts  with
the obvious intent to frustrate and circumvent sentences passed by  criminal
Courts.  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
‘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 duty bound 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 SCC  26).
The  criminal  justice
delivery system is being held to ransom by convicts who have  developed  the
devious and dishonest practice of escaping punishment or sentence by  filing
appeals,  obtaining  bail  or  suspension   of   sentence   and   thereafter
disappearing beyond the reach of the arms of the law.  
The  inherent  powers
under Section 482 of the CrPC,  which  the  Supreme  Court  has  on  several
occasions expounded to have existed  from  time  immemorial,  predating  the
present as well as the previous CrPC, must be pressed into action  lest  the
already  fragile  policing  and  prosecuting  branches  of  governance   are
rendered redundant.  
Since Section 482 of the CrPC  was  not  considered  by
either of the Three Judge Benches of  this  Court,  we  have  not  found  it
necessary to resort to recommending the  matter  for  being  laid  before  a
Larger  Bench.   
The  facts  and  pronouncement  in  Bani  Singh  cannot  be
extrapolated to the factual matrix before us. 
On the  contrary  the  opinion
in Ram Naresh Yadav as well as in  Kishan  Singh  are  available  to  us  to
ensure that preventive action is  devised  to  combat  the  abuse  of  Court
process so that facilitative steps are taken to secure the ends of  justice.

12.   Section 482 of the CrPC is of singular and seminal  significance.  The
statutory provision which immediately comes to mind is Section  151  of  the
CPC because to a great extent the language is identical. We are  juxtaposing
the two Sections for the facility of reference:-
|Section 482 of CrPC             |Section 151 of CPC              |
|Saving of inherent power of High|Saving of inherent powers of    |
|Court. – Nothing in this Code   |Court. – Nothing in this Code   |
|shall be deemed to limit or     |shall be deemed to limit or     |
|affect the inherent powers of   |otherwise affect the inherent   |
|the High Court to make such     |power of the Court to make such |
|orders as may be necessary to   |order as may be necessary for   |
|give effect to any order under  |the ends of justice or to       |
|this Code, or to prevent abuse  |prevent abuse of the process of |
|of the process of any Court or  |the Court.                      |
|otherwise to secure the ends of |                                |
|justice.                        |                                |

13.   It is at once  obvious  that  whereas  Section  482  of  the  CrPC  is
available only to the High Courts, Section 151 can be  resorted  to  at  any
stage of civil judicial  proceedings  in  any  of  the  hierarchical  tiers.
Secondly, the use of the word ‘otherwise’ in  Section  482  has  the  avowed
effect of boundlessly broadening the boundaries of inherent  powers  of  the
High Court in exercise of its criminal jurisdiction.  Thirdly,  Section  482
can be employed to ensure  obedience  of  any  order  passed  by  the  Court
because of the phrase “to give effect to any order under this  Code”.  State
of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 enunciates that  in  exercise
of its inherent powers in criminal matters “the High Court  is  entitled  to
quash a  proceeding  if  it  comes  to  the  conclusion  that  allowing  the
proceeding to continue would be an abuse of the  process  of  the  Court  or
that  the  ends  of  justice  require  that  the  proceeding  ought  to   be
quashed.....The ends of justice are higher than the ends of mere law  though
justice  has  got  to  be  administered  according  to  laws  made  by   the
Legislature. The compelling necessity for making these observations is  that
without a proper realisation of the object  and  purpose  of  the  provision
which seeks to save the inherent powers of the  High  Court  to  do  justice
between the State and its subjects, it would  be  impossible  to  appreciate
the width and contours of that salient jurisdiction”.  A  Three-Judge  Bench
clarified in Krishnan v. Krishnaveni, (1997)  4  SCC  241  that  although  a
second Revision before the High Court after dismissal of the  first  one  by
the Court of Sessions is barred by Section 397(3), the  inherent  powers  of
the High Court under Section 482  are  nevertheless  available  albeit  with
restraint so as to avoid needless  multiplicity  of  the  proceedings.  This
Court had opined that “when the High  Court  notices  that  there  has  been
failure of justice or misuse of judicial mechanism  or  procedure,  sentence
or order is not correct, it is but the salutary duty of the  High  Court  to
prevent the abuse of the process or miscarriage of  justice  or  to  correct
irregularities ..... The inherent  power  of  the  High  Court  is  not  one
conferred by the Code but one which the High Court already has in it and  it
is preserved by the Court”. Raj Kapoor v. State (Delhi Administration),  AIR
1980 SC 258 considered the question whether the inherent power of  the  High
Court under Section 482 stand  repelled  when  the  revisional  power  under
Section 397 overlaps. The view  was  that-  “Section  482  contradicts  this
contention because nothing in the Code, not even Section 397 can affect  the
amplitude of the inherent power preserved in so many terms by  the  language
of Section 482. Even so, a general principle pervades this  branch  of  law;
when a specific provision is made, easy resort  to  inherent  power  is  not
right except under compelling circumstances. Not that there  is  absence  of
jurisdiction but that inherent power should not invade areas set  apart  for
specific power under the same Code”. In State  of  Punjab  v.  Kasturi  Lal,
(2004) 12 SCC 195 : 2004 Crl. L.J. 3866, after cautioning  against  reckless
use of Section 482 this Court has  observed–  “Inherent  jurisdiction  under
the section though wide has to be exercised sparingly,  carefully  and  with
caution and only when such exercise is justified by the  tests  specifically
laid down in the section itself. It is to be exercised ex  debito  justitiae
to do real and substantial justice for the  administration  of  which  alone
Courts exists. Authority of the Courts exists  for  advancement  of  justice
and if any attempt is  made  to  abuse  that  authority  so  as  to  produce
injustice, the Court has power to prevent such abuse. It would be  an  abuse
of process of the Court to allow any action which would result in  injustice
and prevent promotion of justice. In exercise of the powers Court  would  be
justified to quash any proceeding if it  finds  that  initiation/continuance
of it amounts to abuse  of  the  process  of  Court  or  quashing  of  these
proceedings would  otherwise  serve  the  ends  of  justice”.  Advanced  Law
Lexicon by P.  Ramanatha  Aiyar  defines  Justice  as  –  “The  exercise  of
authority or  power  in  maintenance  of  right;  vindication  of  right  by
assignment of reward or punishment; the administration of law  or  the  form
and processes attending it; the principle of just dealing”.
14.   It seems to us that it is necessary for the Appellate Court  which  is
confronted with the absence of the  convict  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:-   (a)  That
the High Court cannot dismiss  an  appeal  for  non-prosecution  simpliciter
without examining the merits; (b) That the Court is  not  bound  to  adjourn
the matter if both the Appellant  or  his  counsel/lawyer  are  absent;  (c)
That the Court may, as a matter  of  prudence  or  indulgence,  adjourn  the
matter but it is not bound to do so; (d)  That it can dispose of the  appeal
after perusing the record and judgment of the trial  court.   (e)   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 Appellant-accused 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 law would preclude  the  court
from doing so; and  (f) That if  the  case  is  decided  on  merits  in  the
absence of the Appellant, the higher court can remedy the situation.
15.   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  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.
16.   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 duty-bound to appoint an  amicus  curiae  is  not  legally  sound.
Panduranga correctly considers Mohd. Sukur Ali v. State of  Assam  (1996)  4
SCC 729 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.
17.   So far as the present Appeal is concerned, since a request for  remand
had been made which we  stoutly  reject,  and  
since  the  convict  was  not
represented through counsel before the High Court, we  think  it  proper  to
permit the Appellant an opportunity to argue the Appeal on its  merits.   
We
therefore grant Leave and direct that the case be listed for Final  hearing.




                               ...........................................J.
                                              [T.S. THAKUR]




                               ...........................................J.
                                                               [VIKRAMAJIT
SEN]
New Delhi
October 07, 2013.
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