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Judgment
V. Narasingh, J. Heard learned Amicus Curiae and learned AGA for the State.
This Criminal Revision has been filed assailing the order of dismissal of criminal appeal dated 18.03.2014 passed by the learned Sessions Judge, Cuttack, in Criminal Appeal No. 101 of 2013 due to non-prosecution and the judgment of conviction and sentence dated 30.07.2013 passed by the learned J.M.F.C, Cuttack arising out of G.R. Case No.1602/03 (T.R. No.136 of 2012) qua the Petitioner for commission of offence under Section 454 of IPC, sentencing him to undergo R.I. for a period of one year and for commission of offence under Section 380, sentencing him to undergo R.I. for a period of one year with a fine of Rs.2,000/- (Rupees Two Thousand), in default, to undergo R.I. for a period of 3 months with further direction that sentences shall run concurrently and the period of detention, if any, be set off from the imposed penalty as per Section 428 of Cr.P.C.
The prosecution's case, in brief, is that on 31.10.2003, between 11:30 A.M. to 12:30 P.M, while Durga Madhab (informant- P.W.2) was returning to his house, he saw the accused had entered his house and on seeing him, the informant shouted loudly and his neighbour gathered there and apprehended the accused. When asked, the accused disclosed his name as Basant Pal. During a personal search, an amount of Rs.1600/-, four gold bangles, three gold chains, three gold finger rings, and three pairs of earrings were found in his possession. The accused said that one Shyamal Mandal was with him but managed to escape. The informant filed an FIR at Mangalabag Police Station under P.S. Case No. 212/2003 dated 31.10.2003. Thereafter, upon completion of the investigation, a charge sheet was filed under Sections 454/380/34 of IPC.
To drive home the charge, the prosecution examined 9 witnesses, of whom P.W.2 is the informant, P.Ws.5 and 8 are seizure witnesses, P.Ws.1, 3, 4, 6 and 7 are independent witnesses and P.W.9 is the I.O.
Several documents were adduced and marked as Exts.1 to 4 on behalf of the prosecution.
Neither oral nor documentary evidence was adduced on behalf of the defense.
The plea of the Petitioner was one of complete denial and false implication.
On consideration of the evidence on record, the Trial Court while acquitting the co-accused Shyamal Mandal, convicted the Petitioner under Section 454 of IPC, sentencing him to undergo R.I. for a period of one year and for commission of offence under Section 380, sentenced him to undergo R.I. for a period of one year with a fine of Rs.2,000/- (Rupees Two Thousand), in default, to undergo R.I. for a period of 3 months with further direction that sentences shall run concurrently and the period of detention, if any, be set off from the imposed penalty as per Section 428 of Cr.P.C.
On appeal being preferred, the Appellate Court dismissed the appeal due to non-prosecution. Assailing the same, the present Criminal Revision has been filed.
The operative part of the appellate order dtd.18.03.2024 is extracted hereunder;
"xxx xxx xxx Appellant takes no step and found absent on repeated calls. Hence the appeal is dismissed for default. xxx xxx xxx”
It is submitted by the learned Amicus Curiae, Ms. Samantray, that the dismissal of the appeal by the Appellate court due to non-prosecution is erroneous and hence, the order of dismissal is liable to be set aside solely on the said count.
It is further submitted by the learned Amicus Curiae that the appreciation of evidence by the Trial Court is ex facie perverse so as to warrant interference by this Court in exercise of its revisional jurisdiction, in as much as no independent witnesses were examined and the trial court passed the judgment of conviction solely relying on the deposition of the informant, P.W.2 which suffers from inherent contradiction(s). And, also on account of violation of provision relating to in Section 313 Cr.P.C. (Corresponding Section: Section 351 of BNSS)
To substantiate her submission that criminal appeal cannot be rejected due to non-prosecution, learned Amicus Curiae relies on the following judgments:
Bani Singh v. State of U.P.1
K. Muruganandam v. State of T.N.2
Md. Sukur Ali v. State of Assam3
6-A. In Bani Singh (supra)1, the Apex Court has held that the Appellate Court cannot dismiss a criminal appeal solely on the ground that the appellant or his Counsel failed to appear on the date of hearing.
6-B. In the case of K. Muruganadam (supra)2 Apex Court held thus;
"xxx xxx xxx
8.It is well settled that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused (see Kabira vs. State of Uttar Pradesh and Mohd. Sukur Ali vs. State of Assam). xxx xxx xxx”
(Emphasised)
6-C. In Md. Sukur Ali (supra)3 the Apex Court, while emphasising that the right to personal liberty under Article 21 is imperative, clarified that a criminal case shall not be disposed of in a mechanical manner without hearing the defense counsel and, in the absence of the counsel, an amicus curiae must be appointed to assist the court.
In the case of K.S. Panduranga v. State of Karnataka4, the Apex Court reiterated that the right of appeal is a valuable right and dismissal for default violates Article 21 of the Constitution of India.
7-A. The inviolable right of a convict to have his appeal heard on merits cannot be extinguished by dismissing the appeal for non-prosecution. Liberty, once curtailed by conviction, can only be further regulated through due process of law, failing which there would be an infraction of Article 21 of the Constitution of India. Procedure is meant to facilitate justice, not to strangulate it. To shut the doors of the appellate Court for want of appearance is to add insult to incarceration. It converts the handmaiden of justice into its executioner.
Justice cannot be made hostage to the lethargy of an advocate. It bears reiteration that an appeal against an order of conviction is a statutory and constitutional right emanating from Article 21. Dismissal for non-prosecution negates this right and reduces the appellate process to a cruel formality. As restated by the Apex Court in Bani Singh (supra)1, an appeal cannot be dismissed for default but must be decided on merits. Justice cannot be buried under technical dust. Even in the absence of counsel, the Court must decide the matter by engaging an Amicus Curiae, lest procedure devour substance and liberty be lost in the undue haste of clearing a clogged cause list.
As Lord Denning said, "Justice is not a cloistered virtue;" it must reach the convict behind bars, or it reaches no one at all. Dismissing a convict’s appeal for non-prosecution is a folly that the law does not permit. Courts are temples of justice, not turnstiles that shut on technicalities.
7-B. Hopefully, this shall be the last occasion when this Court is called upon to reiterate such cardinal principles, which form the bedrock of a just adjudicatory mechanism in which men/Women on both sides of the Prison Bar repose their implicit trust.
Referring to the statement of the accused recorded under Section 313 of Cr.P.C., it is submitted by the learned Amicus Curiae that the examination of the accused-Petitioner under Section 313 of Cr.P.C. was mechanical since only general questions were put without inviting his attention to the incriminating evidence brought on record by the prosecution witnesses, constituting a clear breach of Section 313 of Cr.P.C. As such, remanding the matter back to the Appellate Court would be an empty formality, a futile exercise that too after more than two decades and three years.
8-A. To appreciate the submission of the learned counsel vis-‡-vis Section 313 of the Cr.P.C., it would be apposite to quote the said provision;
“313. Power to examine the accused.—
(1)In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—
(a)may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b)shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2)No oath shall be administered to the accused when he is examined under sub-section (1).
(3)The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4)The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5)The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”
Corresponding Section: Section 351 of BNSS.
Referring to the manner of examination under Section 313 Cr.P.C. in the instant case, the learned amicus curiae states that it has violated the secured right of the accused to explain the circumstances of accusation, thereby, causing prejudice to him and consequently vitiating the trial.
To fortify her submission, she relies on the following judgments:
Sharad Birdichand Sarda v. State of Maharashtra5
Naresh Kumar v. State (NCT of Delhi)6
Asraf Ali v. State of Assam7
9-A. In this context it would be apposite to refer to the guideline laid down by the Apex Court relating to the alleged violation of prescription of Section 313 of Cr.P.C. in the case of Naresh Kumar (supra)6, wherein the Apex Court has held that the failure to question the accused on incriminating circumstances would not ipso facto vitiate the trial qua the accused, rather, to establish that the trial stands vitiated, it must be further established that such an omission has resulted in material prejudice or resulted in failure of justice.
9-B. The Apex Court in the case of Sharad Birdichand (supra)5 observed that any incriminating circumstance not explicitly put to the accused during his examination under Section 313 Cr.P.C. must be excluded from evidence and cannot be used for conviction.
The relevant portion of the said judgment is extracted hereunder;
“xxx xxx xxx
144.To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat; AIR 1979 SC 1566 where the following observations were made:
“In the first place, he stated that on the personal search of the appellant a chedi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant....”
145.It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration. xxx xxx xxx”
(Emphasized)
9-C. In the case of Asraf Ali (supra)7, the Apex Court held thus;
“xxx xxx xxx
21.Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22.The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice…. xxx xxx xxx”
(Emphasized)
Learned AGA for the State, Mr. Swain, on the other hand, opposes such contentions and submits that there is no infirmity in the judgment of the Trial Court warranting interference.
The contours of exercise of revisional jurisdiction by this Court is well settled and this judgment need not be made lengthy by referring to the precedents on the said score.
It would suffice to refer to the decision of the Apex Court in the case of Malkeet Singh Gill v. State of Chhattisgarh8, wherein the boundaries for exercise of the revisional jurisdiction in a criminal matter has been laid down. The Apex Court, in no uncertain terms, clarified that there cannot be any absolute embargo regarding appreciation of evidence but since exercise has to be undertaken sparingly in a measured manner, each case has to be dealt with in the backdrop of its peculiar facts.
For convenience of ready reference the relevant excerpt of the said Judgment is quoted hereunder;
“xxx xxx xxx
10.Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. xxx xxx xxx”
(Emphasized)
Analysing the evidence on record and the appreciation thereof and in the light of the mandate relating to the accused's right under Section 313 of Cr.P.C., which, in the considered view of this Court, was followed in its complete breach and the resultant prejudice caused to the Petitioner- Convict, this Court is left with no other alternative but to set aside the conviction and sentence imposed by the Trial Court.
Accordingly, Criminal Revision is allowed.
Before parting, this Court places on record its appreciation for the assistance rendered by the learned Amicus Curiae, Ms. Satabdi Samantray.
The fees of the learned Amicus Curiae shall be as per the schedule adopted by the Legal Services Authority, High Court of Orissa, for conducting criminal cases in this Court. Such fees shall be disbursed on being moved.
Criminal Revision along with pending I.As stand disposed of.
Footnotes
- 1.Bani Singh v. State of U.P., (1996) 4 SCC 720.
- 2.K. Muruganandam v. State of T.N., (2021) 20 SCC 642.
- 3.Md. Sukur Ali v. State of Assam, (2011) 4 SCC 729.
- 4.K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721.
- 5.Sharad Birdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
- 6.Naresh Kumar v. State (NCT of Delhi), 2024 SCC OnLine SC 1641.
- 7.Asraf Ali v. State of Assam, (2008) 16 SCC 328.
- 8.Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204.