DHANANJAY RAI @ GUDDU RAI versus STATE OF BIHAR on 14 July 2022

1. The short issue involved in this appeal is whether an appealagainst conviction filed by an accused under Sub-Section (2) of Section374 of the Code of Criminal Procedure, 1973 (for short,’ Cr. P.C.’) canBbe dismissed on the ground that the accused is absconding.

2. The appellant was convicted for the offences punishable underSections 302 and 120B of the Indian Penal Code (IPC) and Section27(1) of the Arms Act, 1959. The maximum substantive sentence is ofClife imprisonment. Against the aforesaid judgment and order dated04[th] September 2009 of conviction passed by the learned AdditionalSessions Judge, Buxar in Sessions Trial No.338 of 2006, an appeal waspreferred by the appellant before the High Court of Patna. On29[th] October 2009, a Division Bench of the High Court admitted theappeal for hearing. When the application for suspension of sentenceDfiled by the appellant came up before a Division Bench of the HighCourt, it was brought to the notice of the Court that the appellant wasabsconding. Thereafter, a non-bailable warrant was issued against theappellant. As the appellant was absconding, the Director General ofPolice announced a reward to the informant who could report theEwhereabouts of the appellant.

3. By the impugned judgment and order dated 25[th] August 2015, aDivision Bench of the High Court of Patna dismissed the appeal withoutadverting to the merits of the appeal on the ground that the appellantwas absconding.F

4. The Division Bench held that though the remedy of an appealis a valuable right, the appellant forfeited his right to prefer an appeal themoment he escaped from the custody and flagrantly abused the processof law. The learned Judges held that such deliberate act on the part ofthe appellant amounts to defiance of the criminal administration of justice.GThe Division Bench referred to a decision of this Court in the case ofShyam Deo Pandey & Ors. v. State of Bihar[1]. The Division Benchreferred to another decision of this Court in the case of Surya Baksh Singh v. State of Uttar Pradesh[2] as well as a decision of the sameHigh Court in the case of Daya Shankar Singh & Anr. v. State ofBihar[3]. After adverting to another decision of this Court in the case ofK.S. Panduranga v. State of Karnataka[4], the Division Bench heldthat the circumstances of the case before it were exceptional and,therefore, the Court was required to deviate from the settled principle oflaw that once the appellate court has refused to dismiss the appealsummarily, the same must be heard on merits.

5. After having heard the learned counsel appearing for theappellant and the learned counsel appearing for the respondent-State,for the reasons which are recording, we have no option but to set asidethe impugned judgment and remand the appeal for fresh considerationof the High Court.

6. In the impugned judgment, the Division Bench of the PatnaHigh Court has itself recorded that it is deviating from the settled positionof law. Such an approach cannot be countenanced. The well settled lawcan be found in the decision of this Court of a Bench consisting of threeHon’ble Judges in the case of Bani Singh & Ors. v. State of U.P.[5].The issue before this Court in the said case was whether the High Courtwas justified in dismissing an appeal against conviction for non-prosecution. This Court noted the conflict in the views expressed by twoco-ordinate Benches of this Court in the case of Shyam Deo[1] and RamNaresh Yadav v. State of Bihar[6]. Paragraphs 13 to 15 of the saiddecision are relevant, which read thus :

“13. What then is the area of conflict between the two decisionsof this Court? In Shyam Deo case [(1971) 1 SCC 855 : 1971SCC (Cri) 353 : AIR 1971 SC 1606] , this Court ruled that oncethe appellate court has admitted the appeal to be heard on merits,it cannot dismiss the appeal for non-prosecution for non-appearance of the appellant or his counsel, but must dispose ofthe appeal on merits after examining the record of the case. Itnext held that if the appellant or his counsel is absent, the appellate 2 (2013) 2 SCALE 492 = (2014) 14 SCC 222

3 2004 SCC Online Pat 1189

4 (2013) 3 SCC 721

5 (1996) 4 SCC 720

6 AIR 1987 SC 1500

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court is not bound to adjourn the appeal but it can dispose it of onmerits after perusing the record. In Ram Naresh Yadav case [AIR1987 SC 1500 : 1987 Cri LJ 1856], the Court did not analyse therelevant provisions of the Code nor did it notice the view takenin Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 :AIR 1971 SC 1606] but held that if the appellant’s counsel isabsent, the proper course would be to dismiss the appeal for non-prosecution but not on merits; it can be disposed of on merits onlyafter hearing the appellant or his counsel or after appointinganother counsel at State cost to argue the case on behalf of theaccused.

14. We have carefully considered the view expressed in the saidtwo decisions of this Court and, we may state that the viewtaken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC(Cri) 353 : AIR 1971 SC 1606] appears to be sound exceptfor a minor clarification which we consider necessary tomention. The plain language of Section 385 makes it clear that ifthe appellate court does not consider the appeal fit for summarydismissal, it ‘must’ call for the record and Section 386 mandatesthat after the record is received, the appellate court may disposeof the appeal after hearing the accused or his counsel. Therefore,the plain language of Sections 385-386 does not contemplatedismissal of the appeal for non-prosecution simpliciter. Onthe contrary, the Code envisages disposal of the appeal onmerits after perusal and scrutiny of the record. The lawclearly expects the appellate court to dispose of the appealon merits, not merely by perusing the reasoning of the trialcourt in the judgment, but by cross-checking the reasoningwith the evidence on record with a view to satisfying itselfthat the reasoning and findings recorded by the trial courtare consistent with the material on record. The law,therefore, does not envisage the dismissal of the appealfor default or non-prosecution but only contemplatesdisposal on merits after perusal of the record. Therefore,with respect, we find it difficult to agree with the suggestionin Ram Naresh Yadav case [AIR 1987 SC 1500 : 1987 Cri LJ 1856] that if the appellant or his pleader is not present,the proper course would be to dismiss an appeal for non-prosecution.

15. Secondly, the law expects the appellate court to give a hearingto the appellant or his counsel, if he is present, and to the publicprosecutor, if he is present, before disposal of the appeal on merits.Section 385 posits that if the appeal is not dismissed summarily,the appellate court shall cause notice of the time and place atwhich the appeal will be heard to be given to the appellant or hispleader. Section 386 then provides that the appellate court shall,after perusing the record, hear the appellant or his pleader, if heappears. It will be noticed that Section 385 provides for a noticeof the time and place of hearing of the appeal to be given to eitherthe appellant or his pleader and not to both presumably becausenotice to the pleader was also considered sufficient since he wasrepresenting the appellant. So also Section 386 provides for ahearing to be given to the appellant or his lawyer, if he is present,and both need not be heard. It is the duty of the appellant and hislawyer to remain present on the appointed day, time and placewhen the appeal is posted for hearing. This is the requirement ofthe Code on a plain reading of Sections 385-386 of the Code. Thelaw does not enjoin that the court shall adjourn the case if both theappellant and his lawyer are absent. If the court does so as amatter of prudence or indulgence, it is a different matter, but it isnot bound to adjourn the matter. It can dispose of the appeal afterperusing the record and the judgment of the trial court. We would,however, hasten to add that if the accused is in jail and cannot, onhis own, come to court, it would be advisable to adjourn the caseand fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, andthe court deems it appropriate to appoint a lawyer at State expenseto assist it, there is nothing in the law to preclude it from doing so.We are, therefore, of the opinion and we say so with respect, thatthe Division Bench which decided Ram Naresh Yadav case [AIR1987 SC 1500 : 1987 Cri LJ 1856] did not apply the provisions ofSections 385-386 of the Code correctly when it indicated that the A

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Aappellate court was under an obligation to adjourn the case toanother date if the appellant or his lawyer remained absent.”

(emphasis added)

7. We may note here that the High Court relied upon its earlierdecision in the case of Daya Shankar Singh[3]which was based on RuleB8 of Chapter XII of the Patna High Court Rules which predicates thatno appeal against conviction shall be heard for admission unless theaccused has surrendered to the order of the Court below convicting himto a sentence of imprisonment except in a case where the appellant hasbeen released on bail by the trial court after convicting him. In the caseCin hand, the appeal was already admitted on 29[th] October 2009. Therefore,the said rule, which applies to the pre-admission stage, was not applicablein this case.

8. The anguish expressed by the Division Bench about the brazenaction of the appellant of absconding and defeating the administration ofDjustice can be well understood. However, that is no ground to dismiss anappeal against conviction, which was already admitted for final hearing,for non-prosecution without adverting to merits. Therefore, the impugnedjudgment will have to be set aside and the appeal will have to be remandedto the High Court for consideration on merits.E9. We may note that subsequently, the appellant was taken intocustody and in fact an application for bail made in this appeal was heardand rejected on 14[th] May 2018.

10. Since the appeal before the High Court is of the year 2009,Fthe same will have to be heard expeditiously. If the appeal could not beheard within a reasonable time, in that event, the appellant will have tobe granted a liberty to apply for suspension of sentence.

11. Accordingly, the impugned judgment and order dated25[th] August 2015 is hereby set aside. Criminal Appeal (D.B.) No.936 ofG2009 is remanded to the High Court of Judicature at Patna for hearing inaccordance with the law.

12. Considering the fact that the appeal against conviction underSection 302 of IPC is of the year 2009, necessary priority deserves to begiven to the disposal of the appeal. We, therefore, request the HighH

DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR[ABHAY S. OKA, J.]

Court to ensure that appeal is disposed of as expeditiously as possible,preferably within a period of six months from today.

13. In the event, that the appeal is not heard within a period of sixmonths from today, it will be open to the appellant to apply for suspensionof the sentence before the High Court.

14. Appeal is partly allowed in the above terms.

Bibhuti Bhushan Bose

Matter remanded to High Court.

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