Prafulla Dehury vs State Of Orissa

This matter is taken up through Video Conferencing mode.

Heard learned counsel for the appellant and learned Additional Government Advocate for the State.

The appellant, in this case, was granted furlough leave. It is further apparent from the record that he misused the liberty granted to him as he absconded. He did not surrender to jail custody after expiry of the furlough leave. The question, therefore, arises at present is that whether the appeal should continue or the appeal should be dismissed. We have taken into consideration the argument advanced by the learned counsel. He relies upon the three-Judges Bench judgment of the Hon’ble Supreme Court in Bani Singh and Others v. State of Uttar Pradesh, AIR 1996 SC 2439, wherein the Apex Court held that the law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution, and only contemplates disposal on merits after perusal of the record. The Hon’ble Supreme Court further held that the law does not enjoin that the Court shall adjourn the case.

Section 385 of the Code makes it clear that if the Appellate court does not dismiss the appeal summarily, it must call for the record from the lower

Court. Section 386 of the Code further mandates that after the record is received, after hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the appellate court may dismiss the appeal or dispose of the appeal as provided under Section 386(b) of the Code.

Thus, the plain language of Sections 385 and 386 of the Code does not contemplate disposal of the appeal for non-prosecution simplicitor. Thus, it is clear from the above provisions that the law envisages the disposal of the appeal only on merits after perusal and scrutiny of the records.

Moreover, in a similar situation one of us (S.K. Mishra,J) has already taken a view in an earlier case that a criminal appeal cannot be dismissed for default. Even, if the appellant is absconding, the appeal has to be heard on merit and disposed of on merit.

Accordingly, the question is answered. The paper books are ready. The matter be listed before the assigned Bench at the earliest for final hearing.

As the restrictions due to resurgence of COVID-19 are continuing, learned counsel for the parties may utilize the soft copy / downloaded copy of this order available in the High Court’s website or print out thereof at par with certified copies, subject to attestation by concerned Advocate along with seal, in the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020 as modified by Court’s Notice No.4798 dated 15.04.2021.

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