Bombay High Court

Dilip vs Unknown on 15 December, 2009

Bench: S. S. Shinde

                                         1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH NAGPUR




                                                                                    
                  Criminal Application No. 3636/2009




                                                            
             Dilip s/o Harinarayan Nigam,
             aged about 50 years, Occ. business,
             Propreitor, D. H. Nigam, r/o PG Chamber,




                                                           
             Flat No. 32, 8th Mile, Amravati Road,
             Nagpur.                             .. APPLICANT

                             .. Versus ..




                                             
             Prakash B. Bende,
             aged adult, Occ. business,
                           
             r/o 18, Tilak Nagar, Nagpur. .. NON APPLICANT

     ---------------------------------------------------------------------------------
                          
     Mr. S. V. Bhutada, Advocate for applicant.
     Mr. D. S. Dani, Advocate for non applicant.
     ---------------------------------------------------------------------------------
                                     CORAM:- S. S. SHINDE, J.
                                     DATED:- 15th December, 2009
      
   



     JUDGMENT

1. Rule. Rule returnable forthwith. Heard

finally by consent of the parties.

2. This application raises short point that

whether the Court below could have disposed of the

appeal filed by the applicant herein for default in

depositing the amount relying on the judgment of the

Hon'ble Apex Court in the case of Ram Naresh

Yadav and others ..vs.. State of Bihar; AIR 1987

Supreme Court 1500?

3. Learned counsel for the applicant, in

support of his contention, placed reliance on judgment

of the Hon'ble Apex Court in Bani Singh and

others ..vs.. State of U.P. AIR 1996 Supreme

Court 2439 and more particularly paras 14 and 15 of

the said judgment. On the basis of para 14 and 15,

learned counsel would submit that it is impermissible

to dismiss the appeal for default unless the exercise to

dispose of appeal on merits is undertaken.

4. Learned counsel for non applicant

submitted that the conduct of the applicant/accused

may be taken into consideration. Repeatedly he had

sought adjournment before the Court below and made

default to deposit the amount though sufficient time

was given to the accused to deposit the same.

Learned counsel further submitted that costs may be

awarded to non applicant for unnecessarily dragging

the non applicant in further litigation by applicant

before this Court for no fault of him. Learned counsel

further submitted that in case this Court is inclined to

allow this application the appellate Court may be

directed to dispose of the appeal within stipulated

time.

5. I have heard learned counsel for the

parties. I have also perused the judgment in Bani

Singh and others supra. On perusal of said

judgment, by which the earlier judgment of Apex

Court in Ram Naresh Yadav and others has been

overruled and the Hon'ble Apex Court in para 14 and

15 has observed as under:-

"14. We have carefully considered the view expressed in the said two decisions of

this Court and, we may state that the view taken in Shyam Deo's case (AIR 1971 SC 1606) appears to be sound except for a minor clarification which we consider

necessary to mention. The plain language of S.385 makes it clear that if the Appellate

Court does not consider the appeal fit for

summary dismissal, it must call for the record and S. 386 mandates that after the record is received, the Appellate Court may

dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Ss. 285-386 does not

contemplate dismissal of the appeal for non-prosecution ig 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, no 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 but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult

to agree with the suggestion in Ram Naresh Yadav's case (AIR 1987 SC 1500)

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 hearing to the appellant or his counsel, if he is present,

and the public prosecutor 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 at which the appeal will be heard to be given to the appellant or his pleader. Section 386

then provides that the appellate Court

shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that S.385 provides for a

notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both

presumably because notice to the Pleader was also considered sufficient since he was representing the appellant. So also S. 386 provides for a hearing to be given to the

appellant or his lawyer, if he is present, and both need not be heard. it is the duty 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. 385-386 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 judgment of the trial Court. We would, however, hasten to add 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 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. We are, therefore, of the opinion and we say so with respect that the Division Bench which

decided Ram Naresh Yadav's case (AIR 1987 SC 1500) did not apply the provisions

of Ss. 385-386 of the Code correctly when

it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer

remained absent."

Therefore, what follows from paras 14 and

15 of the judgment is that the Court cannot dismiss

the appeal for non prosecution simpliciter. The Court

has to dispose of appeals on merits after perusal and

scrutiny of record even in absence of the appellant or

counsel for the appellant. Therefore, this application

deserves to be allowed.

6. Though, counsel for non applicant has