Manga Ram vs State

This is a petition moved in terms of Sec.561Cr.P.C. for quashing an order passed by learned Sessions Judge, Udhampur on 3.08.1983 and

also one passed by Chief Judicial Magistrate Udhampur on 11.3.1982. Chief Judicial Magistrates order has convicted petitioneraccused. As against that of conviction, on appeal was preferred before learned Sessions Judge Udhampur On 3.08.1983 when the appeal came up before the court for motion hearing, accused appellant remained absent and the appellate court on that date, passed the impugned order, whereby the appeal was dismissed for default of appearance.

The question that arises for our consideration in this case is, as whether or not a criminal appeal can be dismissed for nonprosecution.

Provision for disposal of appeals is made is sec. 421 and 423, Code of Criminal Procedure (hereinafter called the Code), Sec.421 deals with summary dismissal of appeals and where notices to the other side have not been issued. Sec.423(b)/of Code relates to the disposal of appeals after issuing notice to other side SubSec(l) of Sec.423 calls upon the Appellate Court to send for the record of the subordinate file. It castes a duty upon the court to hear the appellant or his Pleader and also the Public Prosecutor. The Court has no grant a hearing to both the parties. If either of the parties makes a default in appearing before the court, the court has to pass appropriate orders. It can upset the finding but before doing so

parties are to be heard, if they so choose. The words "if he appears" have been used both for the appellant and the Public Prosecutor. This signifies

that a choice is left with the parties to advance arguments. If no arguments are advanced then right of making arguments implied will be deemed to have been waived. It in no way means that the obligation of perusing record, which was sent for, is discharged. The court has, even without appearance of counsel for the parties, to pass an order after going through the record. This means that an order on merits of the case will have to be passed, incase default of appellant or his counsel to appear before the court.

As far summary dismissals are concerned the obligation cast upon the court is to peruse the memorandum of appeal and pass an order on merits of the case. SubSec(2) of Sec. 421 of the Code makes the position dear. It empowers the court to send for the record of the case before dismissal.

In both the situations persual of the record, if called, cannot be dispensed with. It is sufficiently clear that whenever the criminal appeals are taken

up, the court has to examine the memorandum of appeal and also the record called for. This shows that in both cases appeals cannot be dismissed in default. On the other hand an order on merits of the case is to be passed.

The point came up for discussion in a case titled Bani singh and others Vs. State of U. P., reported in AIR 1996 SC 2439. In that case both the appellant and his lawyer remained absent on the appointed date of hearing. The appellate court dismissed the appeal for non prosecution. The apex court of the country held that the order was bad. His Lordship, Ahamdi C.J.I., speaking for the court, held that if the appellant or his counsel makes default in appearing, the court has to dispose of the matter after going through the record and judgment of the Trial Court. It was also held that the Code does not contemplate dismissal of the appeal for nonprosecution simpliciter. On the other hand perusal and scrutiny of the record is a sine quanon to disposal on merits. Their lordships held:

It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss.385386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence. It is a different matter but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgement of the trial court. The plain language of Ss.385386 does not contemplate dismissal of the appeal for nonprosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate court to dispose of the appeal on merits not merely by perusing the

reasoning, of the trail court in the judgment, but by crosschecking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with material on record.

It be placed on record that this judgement has over ruled AIR 1987 SC 1500 which laid down a contrary view. AIR 1971SC 1606 was

approved.

This authoritative finding of the supreme court, read in the light of the provisions of sections 421 and 423 of the Code, makes it sufficiently clear that the order impugned in the petition is against the spirits of law and erroneous. Therefore, the same is quashed and the matter remanded back to learned Session Judge, Udhampur for passing fresh order on merits of the case.

Learning counsel appearing for the petitioner is directed to cause the appearance of his client before that court on January 27,1997.