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.
-----------------------
21
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.
-----------------------
21
