Mukesh vs State
2008 Latest Caselaw 1205 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     1.     Crl. A. 186/1992

#     MUKESH                       .....Appellant through
!                                  Mr.P.K. Dey, Amicus Curiae
                                   and Ms. Purnima Sethi, Adv.

                    versus

$     STATE                        ..... Respondent through
^                                  Mr. Manoj Ohri, Adv.

                            WITH

      2.     Crl. A. 189/1992

      SURESH                       .....Appellant through
                                   Mr.P.K. Dey, Amicus Curiae
                                   and Ms. Purnima Sethi, Adv.

                            versus

      STATE                        ..... Respondent through
                                   Mr. Manoj Ohri, Adv.


                                   Date of Hearing : 15th July, 2008

%                                  Date of Decision : 01st August, 2008

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE V.K. SHALI

      1. Whether reporters of local papers may be
         allowed to see the Judgment?                         Yes

      2. To be referred to the Reporter or not?               Yes

      3. Whether the Judgment should be reported
         in the Digest?                                       Yes




Crl.A.186/1992 & 189/1992                                       Page 1 of 42
 VIKRAMAJIT SEN, J.

                            JUDGMENT

―By not punishing the guilty and punishing those not deserving to be punished, by arresting those who ought not to be arrested and not arresting those who ought to be arrested; and by failing to protect subjects from thieves etc. through these causes -- decline, greed and dis-affection are produced among the subjects. It is punishment alone which maintains both this world and the next.‖ -- Kautiliya Arthasastra by Prof. V.K. Gupta

―....not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evil-doing‖. -- Plato's Laws

―Crucify me, O judge, crucify me -- but pity me! And then I will go of myself to be crucified, for it's not merrymaking I seek but tears and tribulation!‖ -- Crime and Punishment by Fyodor Dostoevsky

―By enforcing a public system of penalties government removes the grounds for thinking that others are not complying with the rules. For this reason alone, a coercive sovereign is presumably always necessary, even though in a well-ordered society sanctions are not severe and may never need to be imposed. Rather, the existence of effective penal machinery serves as men's security to one another‖. -- A Theory of Justice by Rawls

1. We are concerned with the rampant manipulation and

misuse of the statutory right to appeal by convicts who quite

palpably take recourse to filing of appeals with the sole objective of

defeating justice by obtaining bail and thereafter escaping out of

the reach of law. Jural compulsions dictate that this species of

appeals should be consciously dismissed on the ground of

occasioning gross abuse of judicial process and an annihilation of

the ends of justice. This approach has found favour with the High

Courts of Bombay and Patna. It is necessary to distinguish between

dismissal of appeals in this set of circumstances, namely, where

steps have been taken for securing the presence of the appellant

by coercive means, including the issuance of non-bailable warrants

or proceedings for declaring the appellant a proclaimed offender

by recourse to Part C of Chapter VI of the Code of Criminal

Procedure, 1973 (CrPC for short) on the one hand, and instances

where the appellant may incidently not be present when the appeal

is called on for hearing. In other words, the malaise which we

have in perspective is the wilful withdrawal of the convict from the

appellate proceedings initiated by him. Looking to the gravity and

general importance of this conundrum we have requested Mr. P.K.

Dey, Advocate to assist us as amicus curiae and supplement or

oppose, as the case may be, the arguments of Ms. Purnima Sethi

and of Mr. Manoj Ohri, learned counsel for the State.

2. We shall first deal with legal provisions on this subject which

are to be found principally in Chapter XIX of the CrPC. Section 372

reiterates the general principle of law that an appeal is not a right

unless it is granted by a statute. This Section states that no appeal

shall lie from any judgment or order of a Criminal Court except as

provided for by the CrPC or by any other law for the time being in

force. Section 374(2) thereafter stipulates that any person

convicted in a trial held by a Sessions Judge or an Additional

Sessions Judge or in a trial held by any other Court in which a

sentence of imprisonment for more than seven years has been

passed against him or against any other person convicted at the

same trial, may appeal to the High Court. Although it may be

uncommon, there are instances where appeals are not preferred by

a convict who has received a sentence of incarceration of a period

of seven years or more than seven years. These provisions must

immediately be compared with the preceding Chapter-XVIII

containing a fasciculus dealing with death sentences which become

efficacious only on being confirmed by the High Court. The proviso

to Section 368 enjoins that an order of confirmation shall not be

made until the period allowed for preferring an appeal has expired,

or, if an appeal is presented within such period, until such appeal

is disposed of. The presence or absence of the accused/convict, in

the cases of Death References, will make no material difference

since the High Courts would invariably be duty-bound to give the

matter its utmost and undivided attention. Since it is conceivable

that an appeal may not be filed in the High Court by a convict who

is to undergo more than seven years imprisonment, the efficacy,

legal correctness and propriety of such a sentence is not

dependent on receiving the imprimatur of the High Court.

3. Section 378 of the CrPC declares inter alia that no appeal to

the High Court against an order of acquittal shall be entertained

except with the leave of the High Court. Accordingly, appeals

against acquittal are distinct from all others. Section 383

prescribes that if the appellant is in jail he may present his appeal

to the officer in charge of the jail who shall thereupon forward

such a petition together with copies thereof to the appropriate

Appellate Court. Section 384 enables the dismissal of appeals

summarily or in limine provided the appellant or his pleader has

had a reasonable opportunity of being heard in support of the

same. We shall revert to the use of the words ―reasonable

opportunity of being heard‖ later in this Judgment. Where appeals

are not dismissed summarily, Section 385 prescribes the issuance

of notices to the appellant or his pleader by the State Government

indicating the time and place when the appeal will be heard. While

it is optional to the Appellate Court to call for the records of the

case at the stage of the initial hearing of an appeal under Section

384 by virtue of use of the word ―may‖, it is mandatory for it to do

so at the time of the final hearing on merits.

4. Section 386 of the CrPC is of importance for the purposes

before us. It requires the Appellate Court to peruse the records,

and hear the appellant or his pleader if he appears and thereafter

may, if it considers that there is no sufficient ground for

interfering, dismiss the appeal. In the case of an appeal from an

order of acquittal (State Appeals in jural parlance) it may reverse

the order and direct that further inquiry be made, or that the

accused be retried or committed for trial. Even in the case of an

appeal from an order of acquittal the Appellate Court is competent

to find him guilty and pass sentence on him according to law. The

proviso to this Section prescribes that the sentence shall not be

enhanced unless the accused has had an opportunity of showing

cause against such an enhancement thereby mandating that an

accused must be present and be heard if an order of acquittal is to

be upturned. It appears to us that whilst the Legislature has cast

an obligation on the Appellate Court to decide an appeal on its

merits only in the case of Death References, regardless of whether

an appeal is preferred by the convict.

5. Last, but not least in our appreciation of the law, Section 482

of the CrPC stands in solitary splendour. It saves the inherent

power of the High Court. It enunciates that nothing in the CrPC

shall be deemed to limit or affect the inherent powers of the High

Court to make such orders as may be necessary firstly to (a) ‗give

effect to any order under the CrPC', words which are not to be

found in the Code of Civil Procedure, 1908 (‗CPC'). While

exercising inherent powers, therefore, the High Court, in its

criminal jurisdiction, can take all necessary steps for compliance of

its orders. The High Court need not, therefore, resort to the tenets

of Contempt of Court. Section 482, therefore, makes the Criminal

Court much more powerful than the Civil Court so far as obedience

to orders is concerned. Secondly, Section 482 clarifies that the

CrPC does not circumscribe the actions available to the High Court

to prevent abuse of its process from the beginning of its

proceedings till their very end. Judicial process includes

compelling a respondent to appear before it. When the Court is

faced with a recalcitrant appellant/convict who shows no interest

in his appeal, none of the Section in Chapter-XXIX of the CrPC

dealing with appeals would preclude it from dismissing the

appeals. Whenever such orders are passed, it would have the effect

of making it clear to all concerned that intentional and repeated

failure to prosecute the appeal would inexorably lead not merely to

the cancellation of bail but to the confirmation of the conviction

and sentence because of the dismissal of the appeal. Thirdly, none

of the provisions of the CrPC can possibly limit the power of the

High Court to otherwise secure the ends of justice. It is not

possible to define the concept of ‗justice'. Suffice it to say that it

encompasses not just rights of the accused and the convict. It also

includes law abiding section of society who look towards the

Courts as vital instruments for preservation of peace and

curtailment of crime by means of imposing punishment on those

who break the law. If convicts can circumvent the rigors of their

conviction, peace and harmony in society will become an illusion.

Section 482 emblazons the fact that there is a difference between

preventing the abuse of the jural process and the securing of the

ends of justice. In our analysis, Section 482 of the CrPC has not

been given its due regard and importance, and as a consequence,

the rampant practice of filing appeals only for frustrating a

sentence given by a criminal court has been fine-tuned. It has led

not merely to an explosion of dockets in criminal courts, already

afflicted by an adverse ratio of judges to the population, but has

given fillip to the filing of appeals by convicts whose objective is

not of convincing the Appellate Court that they have been dealt

with unfairly or illegally, but to escape from the punishment that

their crime has invited.

6. In Shyam Deo Pandey -vs- State of Bihar, 1971(1) SCC 859 :

AIR 1971 SC 1606 the Apex Court was called upon to construe

Section 423 of the old CrPC in the wake of the dismissal by the

High Court of an Appeal on the very next date of hearing after the

issuance of notice. The High Court had recorded - ―No one appears

to press the appeal. On perusal of the judgment under appeal, I

find no merit in the case. It is accordingly dismissed‖.

7. An application for restoration of the appeal filed on the same

day was also rejected for not disclosing sufficient grounds for

recalling the dismissal orders. The facts before us, which are

common to an ever increasing multitude of appeals, are

significantly different inasmuch as this Court has employed every

available method to secure the presence of the convict/accused

before it with the objective of giving content and meaning to his

right to be heard; and only thereafter has considered the propriety

and expediency of the dismissal of the appeal under Section 482 of

the CrPC. It is at least arguable that the right to be heard has

meaning only if the person concerned is actually given a full

audience, or he is allowed to be heard through his chosen

representative. Theoretically, therefore, the right is frustrated

whenever the Court appoints an advocate as amicus curiae. It

needs to be underscored that the ratio decideni of Shyam is that

the records of the lower court must be before the Appellate Court

if the condition of ‗perusal' is to be complied with.

8. On this subject, the oft-quoted decision of the Supreme

Court is that of Bani Singh -vs- State of U.P., (1996) 4 SCC 720 :

AIR 1996 SC 2439. Their Lordships observed that the law posits

that if the appeal is not dismissed summarily, then the appellate

court shall, after perusing the records, hear the appellant or his

pleader. The obvious pre-condition is that the notice shall be issued

to the appellant. The Supreme Court clarified that ―the law does

not enjoin that the court shall adjourn the case if both the

appellant and his lawyer are absent. ..... It can dispose of the

appeal after perusing the record and 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

hear 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‖. The Apex Court was not seized of a matter of the

wilful abscondance of the appellant. In Bani Singh the High

Court had not taken steps calculated to secure the presence of the

appellant before it. On the contrary it had palpably adopted the

less tedious course of simply dismissing the appeal. Bani Singh

overruled Ram Naresh Yadav -vs- State of Bihar, AIR 1987 SC

1500 which had laid down that a criminal appeal could be disposed

of on merits only after hearing the accused. En passant, the Court

had observed that in order to enforce discipline the appeal could

be dismissed for non-prosecution. In both these cases it is apparent

that the High Court had not taken any steps to secure the presence

of the appellant; in other words, that there was no material to

manifest that the appellant had abandoned his appeal or had no

intention to prosecute it. In Bani Singh attention of the Court was

not drawn to the views of a Three-Judge Coordinate Bench in

Kishan Singh -vs- State of U.P., (1996) 9 SCC 372 decided four

years previously on 2.11.1992. Having carefully read through both

the Judgments we think it important to clarify that Bani Singh

does not deal or reflect upon the problem before us, namely, the

options open to the Court which is faced with a recalcitrant

appellant who is not prosecuting the appeal, having already

violated the bail orders granted in his favour. Precisely, Kishan

Singh deals with the options open to the Appellate Court at the

preliminary hearing of an appeal. Nevertheless, the observations

that have been highlighted by us in the passage below are pithy so

far as the present case is concerned:

It will be seen that the very opening words of the Section require the Appellate Court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same. Sub-section (2) provides that the Court may call for the records of the case even at the preliminary stage. It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the Court to press the appeal. As

soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily. In a case where the appellant has been sentenced to imprisonment and he is not in custody when the appeal is taken up for preliminary hearing, the Appellate Court can require him to surrender, and if the appellant fails to obey the direction, other considerations may arise, which may render the appeal liable to be dismissed without consideration of the merits, but that is altogether a different matter with which we are not concerned in the present case. Here, the appellant's advocate was not present to argue the appeal when the case was called out and in the restoration application filed subsequently, attempt was made to explain the default, which, of course, did not succeed. The question is, whether in the circumstances, the High Court could have dismissed the appeal for default, and if not, whether the prayer for restoration should have been allowed. As is manifest from the provisions of Criminal Procedure Code, referred to above, the High Court should have either examined the appellant's petition of appeal and the judgment under challenge, itself or appointed a counsel to assist the Court, but could not have proceeded to dismiss the same on the ground that the Advocate for the appellant was not present. The position of a criminal appeal is not the same as in a civil appeal governed by the Civil Procedure Code. A comparison of the provisions of Section 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference. Rule 17, Order 41 of Civil

Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non-appearance. In the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure. On the other hand the Code in express terms requires the matter to be considered on merits. Thus a criminal appeal cannot be dismissed for non-prosecution, and this is the reason as to why the Criminal Procedure does not contain any special provision like Order 41, Rule 19. The law was correctly laid down in Shyam Deo Pandey and Ors. v. State of Bihar [1971] Suppl. SCR 133 a case governed by the old Criminal Procedure Code. The position in this regard remains the same under the new Code. Even earlier, the High Courts were following this very principle is clear from the observations in Emperor v. Balumal Hotchand and Ors. 39 Criminal Law Journal 890 and Ramesh Nanu v. State of Gujarat 17 Gujarat Law Reporter 350. In Emperor v. Balumal Hotchand and Ors. it was observed thus:

―....that the law requires that before an Appellate Court dismisses an appeal summarily, it shall read a copy of the judgment, and then, if there is no sufficient ground for interfering, it may dismiss the appeal summarily. It was emphasized that the dismissal of the appeal shall depend on the exercise by the Judge of his independent and impartial mind after he has read a copy of the judgment, and not upon the failure of the accused to press his appeal‖.

9. Our research and analysis on this aspect of the law would be

incomplete without appreciating and assimilating the recent

decision reported as Dharam Pal -vs- State of U.P., 2008 I AD

(SC) 597 : AIR 2008 SC 920 : JT 2008 (1) SC 172. The contention

which was formulated on behalf of the accused was whether a

miscarriage of justice has been occasioned since the Appellant was

not served with a notice of the appeal by the High Court, which

nevertheless decided the appeal ex parte. Their Lordships referred

to and applied Bani Singh. Reference was also made to CrPC's

Chapter-XXIX in general and Sections 385 and 386 in particular. It

needs to be emphasised that Section 482 of the CrPC was not even

mentioned by learned counsel before their Lordships. So far as the

course of appellate hearings before the High Court was concerned

in Dharam Pal the learned counsel for the Appellants had

expressed their inability to argue the case before the High Court. It

was in those circumstances that their Lordships had perused the

impugned Judgment of the High Court, found it to be well-merited

and predicated on careful consideration of the material on record.

It was observed that - ―The position, of course, would have been

different if the High Court had simply dismissed the appeal without

going into the merits. .... That being the position, it cannot be said

that the High Court had ignored the basic principles of criminal

justice while disposing of the appeal ex parte‖. Dharam Pal and

for that matter Bani Singh or Shyam neither proscribe the

invocation of Section 482 of the CrPC nor opine that dismissal of

an appeal under Section 482, for good reasons which are lucidly

spelt out, is improper. It has not hitherto fore even been contended

that Section 482 of the CrPC should be applied to in circumstances

of the wilful abscondance of the appellant/convict in contumacious

and deliberate disregard and violation of the terms and conditions

on which he was enlarged on bail.

10. The discussion would not be complete without mentioning

two Orders of the Hon'ble Supreme Court, namely, Parasuram

Patel -vs- State of Orissa, (1994) 4 SCC 664 and Madan Lal Kapoor

-vs- Rajiv Thapar, (2007) 7 SCC 623. However, in neither of these

cases had the Appellate Court taken steps available to it to ensure

the attendance of the Appellant. Instead, it appears that the

concerned High Court had adopted the obviously less tedious

approach of dismissing the appeals only because the appellant or

his counsel were absent when the case was called on for hearing.

Their Lordships were not called upon to ruminate upon the curial

malpractice which has now become endemic in Criminal Courts,

viz. the filing of appeals by convicts with the obvious intent to

frustrate and circumvent sentences passed by the criminal courts.

These appellants obtain orders from the Appellate Court, enlarge

themselves on bail and thereafter contumaciously and intentionally

abscond beyond the reach of justice. We cannot close our eyes to

the reality that less than 20 per cent prosecution are successful

largely because of inept, shoddy or substandard investigation and

prosecution. Even in cases where the prosecution succeeds in

proving the guilt of the accused, punishment is avoided by convicts

not by succeeding in having their conviction overturned and

reversed by the Appellate Court, but by going underground and

disappearing from society. We are convinced that the interests of

society at large are being repeatedly sacrificed for the

exaggerated, if not misplaced concern, for what is fashionably

termed as ‗human right' of convicts. Recent judgments of the Apex

Court contain a perceptible dilution of legal principles such as the

right of silence of the accused. The Supreme Court has, in several

cases, departed from this rule in enunciating, inter alia, that the

accused are duty bound to give a valid explanation of facts within

their specific and personal knowledge and thereby dispel doubts on

their complicity. Even half a century ago this would have been a

jural anathema. Given the woeful success rate of the prosecution,

if even the relatively meagre numbers of convicts are permitted to

circumvent their sentences, crime is certain to envelop society.

Law is dynamic and not immutable or static. It constantly adapts

itself to critically changing societal needs. (See State of Punjab -vs-

Devans Modern Breweries Ltd., (2004) 11 SCC 26). The criminal

justice delivery system is being held to ransom by convicts who

have developed the devious and dishonest practice of escaping

punishment or sentence by filing appeals, obtaining bail and

thereafter disappearing beyond the reach of the arms of the law.

They invariably reappear only if the Appeal is decided in their

favour. We are mindful of the legal position that a reversal of a

conviction by the Appellate Court even enures to the benefit of a

convict who has not chosen to file an appeal.(See Arokia Thomas -

vs- State of T.N., (2006) 10 SCC 542). Nobody should feel

discomfort in such an event, since the convict who has not filed an

appeal is legitimately deriving benefit from a fortuitous turn of

events within the judicial framework. The inherent powers under

Section 482 of the CrPC, which the Supreme Court has on several

occasions expounded to have existed from times immemorial,

predating the present as well as the previous CrPC, must be

pressed into action lest the already fragile policing and

prosecuting branches of governance are made fully redundant.

11. In addition to the decisions of the Apex Court, we must also

analyse previous judgments of Coordinate Benches. In Appeals

against acquittal (which are commonly known as State Appeals)

the respondents are required to seek bail even though the

presumption of their innocence stands fortified by the failure of the

prosecution to bring home their culpability. We do not propose to

ponder on all the possible jurisprudential complexities of equating

an acquitted person with an accused person facing trial.

Accordingly, the decision in State -vs- Ram Gopal, 131(2006) DLT

156(DB) does not cause us concern for the simple reason that it is

not the appellant who is the truant party. However, in Mohd.

Tahir -vs- State, Crl. A. 452/1997 it was the appellant who,

subsequent to the suspension of his sentence, failed to respond to

the process of this Court. The concern of the Division Bench was

whether the Appeal could be taken up for hearing in his absence or

alternatively whether it could be dismissed for non-prosecution as

neither the appellant nor any counsel on his behalf had put in

appearance. Applying Bani Singh our learned Brothers concluded

in the interlocutory Orders dated 1.10.2004 that the prudent

course would be to appoint an amicus curiae to argue the appeal

on behalf of the appellant. The Bench briefly noted Lakshmandas

Chaganlal Bhatia -vs- State, AIR 1968 Bombay 400 but did not

cogitate upon the implications of Section 482 of the CrPC and

hence does not preclude or foreclose a wider consideration of the

legal nodus. Harbir Singh -vs- State, 126(2006) DLT 469(DB)

and Ram Gopal were decided by the Bench comprising

Manmohan Sarin and Manju Goel, JJ.. Even in Harbir Singh there

is no discussion of the law, leave aside Section 482 of the CrPC, as

the Bench has recorded that - ―Before we end, it is necessary to

say that the appellant Harbir escaped prison by unlawful means

and has thereafter not been arrested. This Court in Mohd. Tahir

has held an appeal in circumstances where the accused in

absconding, can be decided by the Court in the absence of the

appellant‖. As in the case of Mohd. Tahir the Bench hearing the

State Appeal in Ram Gopal had only discussed Shyam, Ram

Naresh Yadav and Bani Singh. Section 482 of the CrPC does not

even find mention, even though it had been discussed by the

Division Bench of the Bombay High Court in Lakshmandas.

12. In the context of the decisions of the Supreme Court and of

this Court we would have avoided further cogitation had the

matter been res integra. This has necessitated a detailed study of

the concept of stare decisis.

13. Bhavnagar University -vs- Palitana Sugar Mills Pvt. Ltd.,

2003(2) SC 111 cautions that - ―a little difference in facts or

additional facts may make a lot of difference in the precedential

value of a decision‖. In Director of Settlement, A.P. -vs- M.R.

Apparao, (2002) 4 Supreme Court Cases 638, a Three Judge Bench

has opined that ―Article 141 of the Constitution unequivocally

indicates that the law declared by the Supreme Court shall be

binding on all courts within the territory of India. The aforesaid

Article empowers the Supreme Court to declare the law. It is,

therefore, an essential function of the Court to interpret a

legislation. The statements of the Court on matters other than law

like facts may have no binding force as the facts of two cases may

not be similar. But what is binding is the ratio of the decision

and not any finding of facts. It is the principle found out

upon a reading of a judgment as a whole, in the light of the

questions before the Court that forms the ratio and not any

particular word or sentence. To determine whether a decision

has ―declared law‖ it cannot be said to be a law when a point is

disposed of on concession and what is binding is the principle

underlying a decision. A judgment of the Court has to be read in

the context of questions which arose for consideration in the case

in which the judgment was delivered. An ―obiter dictum‖ as

distinguished from a ratio decidendi is an observation by the Court

on a legal question suggested in a case before it but not arising in

such manner as to require a decision. Such an obiter may not have

a binding precedent as the observation was unnecessary for the

decision pronounced, but even though an obiter may not have a

binding effect as a precedent, but it cannot be denied that it is of

considerable weight. The law which will be binding under Article

141 would, therefore, extend to all observations of points raised

and decided by the Court in a given case‖. The Constitution Bench

has also reiterated this view in Islamic Academy of Education -vs-

State of Karnataka, (2003) 6 SCC 697 = 2003(6) Scale 325, viz.

that the ratio decidendi of a judgment can be obtained only from a

reading of its entirety. The opinion of the Apex Court in Bharat

Petroleum Corporation Ltd. -vs- N.R. Vairamani, AIR 2004 SC 778

is in similar vein. Their Lordships observed that - ―Observations of

Courts are neither to be read as Euclid's theorems nor as

provisions of the statute and that too taken out of their context.

These observations must be read in the context in which they

appear to have been stated. Judgments of Courts are not to be

construed as statutes‖. This is also the opinion of the Court in

Punjab National Bank -vs- R.L.Vaid, (2004) 7 SCC 698. In State of

Gujarat -vs- Akhil Gujarat Pravasi, AIR 2004 SCC 3894, the

Hon'ble Supreme Court has observed that ―any observation made

during the course of reasoning in a judgment should not be read

divorced from the context in which they were used‖. In Zee Tele

Films -vs- Union of India, AIR SCW 2005 2985, the Apex Court has

unequivocally declared that ―a decision is not an authority for the

proposition which did not fall for its consideration.‖ In M/s A-One

Granites -vs- State of U.P., AIR 2001 SC 1203: (2001) 3 SCC 537 it

had been contended that the controversy was covered on all fours

by a previous decision of the Court. The contention was rejected in

these words-

This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. Following the said

decision, this Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101: (AIR 1989 SC 38) observed thus (at p. 43 of AIR):

―In Gerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant's debt, and on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancester Motor Co.

(London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, the Court held itself not bound by its previous decisions. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier Court before it could make the order which it did; nevertheless, since it was decided ―without argument, without reference to the

crucial words of the rule, and without any citation of authority‖, it was not binding and would not be followed.

Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.‖

In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, reiterating the same view, this Court laid down that such a decision cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution of India and observed thus:

―A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141.‖

In the case of Arnit Das v. State of Bihar, 2000 (5) SCC 488 : (2000 AIR SCW 2037 : AIR 2000 SC 2264 : 2000 Cri LJ 2971), while examining the binding effect of such a decision, this Court observed thus (Para20):

―A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by

Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.‖

Thus we have no difficulty in holding that as the question regarding applicability of Rule 72 of the Rules having not been even referred to, much less considered by this Court in the earlier appeals, it cannot be said that the point is concluded by the same and no longer res integra and accordingly this Court is called upon to decide the same.

14. The frequently quoted opinion of the House of Lords in

Quinn -vs- Leathem, 1901 AC 495 : (1900-3) All ER Rep 1 is to the

effect that ―every judgment must be read as applicable to the

particular facts proved or assumed to be proved .... The other is

that a case is only an authority for what is actually decides‖. These

quotations have been reiterated in Goodyear India Ltd. -vs- State of

Haryana, (1990) 2 SCC 71 and State of Orissa -vs- Sudhansu

Sekhar Misra, AIR 1968 SC 647. In the latter case, the Court

explicitly opined that ―a decision on a question which has not

been argued cannot be treated as a precedent". Their

Lordships, in turn, referred back to the previous opinion in Rajput

Ruda Meha -vs- State of Gujarat, 1980 SC 1707 in which it had

similarly been stated that where an issue has neither been raised

nor argued any decision by the Court, even after 'pondering over

the issue in depth', would not be a binding precedent. Similar

observations have been made by the Constitution Bench in Padma

Sundara Rao -vs- State of T.N., 2002(3) SCC 533, as is evident

from the following extract:

―Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board, (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.

15. A profound and perspicuous analysis of the principle of stare

decisis is to be found in State of Gujarat -vs- Mirzapur Moti

Kureshi Kassab Jamat, AIR 2006 SC 212. We cannot do better than

to extract the relevant portions thereof in order to buttress and

justify the approach we propose to adopt:

Stare decisis is a Latin phrase which means "to stand by decided cases; to uphold precedents; to maintain former adjudication". This principle is expressed in the maxim "stare decisis et non quieta movers" which means to

stand by decisions and not to disturb what is settled. This was aptly put by Lord Coke in his classic English version as "Those things which have been so often adjudged ought to rest in peace". However, according to Justice Frankfurter, the doctrine of stare decisis is not "an imprisonment of reason" (Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.

The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs, State policy and judicial conscience.

According to Professor Lloyd concepts are good servants but bad masters. Rules, which are originally designed to fit social needs, develop into concepts, which then proceed to take on a life of their own to the detriment of legal development. The resulting "jurisprudence of concepts" produces a slot-machine approach to law whereby new points posing questions of social policy are decided, not by reference to the underlying social situation, but by reference to the meaning and definition of the legal concepts involved. This formalistic a priori approach confines the law in a strait-jacket instead of permitting it to expand to meet the new needs and requirements of changing society (Salmond on Jurisprudence, Twelfth

Edition, at p. 187). In such cases Courts should examine not only the existing laws and legal concepts, but also the broader underlying issues of policy. In fact presently, judges are seen to be paying increasing attention to the possible effects of their decision one way or the other. Such an approach is to be welcomed, but it also warrants two comments. First, judicial inquiry into the general effects of a proposed decision tends itself to be of a fairly speculative nature. Secondly, too much regard for policy and too little for legal consistency may result in a confusing and illogical complex of contrary decisions. In such a situation it would be difficult to identify and respond to generalized and determinable social needs. While it is true that "the life of the law has not been logic, it has been experience" and that we should not wish it otherwise, nevertheless we should remember that "no system of law can be workable if it has not got logic at the root of it" (Salmond, ibid, pp. 187-188).

Consequently, cases involving novel points of law, have to be decided by reference to several factors. The judge must look at existing laws, the practical social results of any decision he makes, and the requirements of fairness and justice. Sometimes these will all point to the same conclusion. At other times each will pull in a different direction; and here the judge is required to weigh one factor against another and decide between them. The rationality of the judicial process in such cases consists of explicitly and consciously weighing the pros and cons in order to arrive at a conclusion. (Salmond, ibid, pp. 188).

In case of modern economic issues which are posed for resolution in advancing society or developing country, the court cannot afford to be static by simplistically taking shelter behind principles such as stare decisis, and refuse to examine the issues in the light of present facts and circumstances and thereby adopt the course of judicial "hands off". Novelty unsettles existing attitudes and arrangements leading to conflict situations which require judicial resolution. If necessary adjustments in social controls are not put in place then it could result in the collapse of social systems. Such novelty and consequent conflict resolution and "patterning" is necessary for full human development. (See -The Province and Function of Law, Julius Stone, at pp.588, 761and 762)

Stare decisis is not an inexorable command of the Constitution or jurisprudence. A careful study of our legal system will discern that any deviation from the straight path of stare decisis in our past history has occurred for articulable reasons, and only when the Supreme Court has felt obliged to bring its opinions in line with new ascertained fact, circumstances and experiences. (Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8).

Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the creative elements implicit in the very process of determining ratio decidendi, it is not surprising that judicial process has not been crippled in the discharge of its duty to keep the law abreast of the times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with

changing society, and, "every age should be mistress of its own law" - and era should not be hampered by outdated law. "It is revolting", wrote Mr. Justice Holmes in characteristically forthright language, "to have no better reason for a rule of law than it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past". It is the readiness of the judges to discard that which does not serve the public, which has contributed to the growth and development of law. (ibid, p. 68)

The doctrine of stare decisis is generally to be adhered to, because well settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances dictated by forceful factors supported by logic, amply justify the need for a fresh look.

Sir John Salmond, while dealing with precedents and illustrating instances of departure by the House of Lords from its own previous decisions, states it to be desirable as 'it would permit the House (of Lords) to abrogate previous decisions which were arrived at in different social conditions and which are no longer adequate in present circumstances. (See - Salmond, ibid, at p.165). This view has been succinctly advocated by Dr. Goodhart who said: "There is an obvious antithesis between rigidity and growth, and if all the emphasis is placed on absolutely binding cases then the law looses the capacity to adapt itself to the changing spirit of the times which has been described as the life of the law". (ibid, p. 161) This

very principle has been well stated by William O' Douglas in the context of constitutional jurisprudence. He says: "So far as constitutional law is concerned, stare decisis must give way before the dynamic component of history. Once it does, the cycle starts again". (See - Essays on Jurisprudence from the Columbia Law Review, 1964, at p.20)

16. In Municipal Corporation of Delhi -vs- Gurnam Kaur, AIR

1989 SC 38 the Three-Judge Bench had to decide the legal

propriety of a High Court order which applied Supreme Court

direction, with the consent of parties, for grant of alternate site to

persons who had encroached on pavements. Their Lordships

observed that the High Court could not have passed similar orders

as it would have been contrary to the provisions contained in

Sections 320 and 322 of the Delhi Municipal Corporation Act,

1957. In that context it was observed thus-―Quotably as ‗law'

applies to the principle of a case, its ratio decideni. The only thing

in a Judge's decision binding as an authority upon a subsequent

Judge is the principle upon which the case was decided.

Statements which are not part of the ratio decidendi are

distinguished as obiter dicta and are not authoritative‖. The

Seven-Judge Bench in A.R. Antulay -vs- R.S. Nayak, AIR 1988 SC

1531 defines per incuriam as ―those decisions given in ignorance

or forgetfulness of some inconsistent statutory provision or of some

authority binding on the Court concerned, so that in such cases

some part of the decision or some step in the reasoning on which it

is based, is found, on that account to be demonstrably wrong‖.

17. In Bharat Sanchar Nigam Ltd. -vs- UOI, (2006) 3 SCC 1 the

Supreme Court has clarified that a Bench can take a different view

by distinguishing it or where the earlier view is per incuriam.

These fetters apply only to Coordinate Benches which, if either of

the gateways cannot be traversed, must refer the point of

controversy to a Bench of superior strength or of superior

jurisdiction. Similarly, exposition of the law can be found in Jindal

Vijaynagar Steel -vs- Jindal Praxair Oxygen Company Ltd., (2006)

11 SCC 521 where the Lordships have opined that a judgment will

not be reconsidered by a Coordinate Bench unless the latter

believes that it has laid down the wrong principle of law by

ignoring a provision of law. Since Section 482 of the CrPC was not

considered by either of the Coordinate Benches of this Court, we

have not found it necessary to resort to recommending the matter

for being laid before the Full Bench.

18. It is our understanding that the facts and pronouncement in

Bani Singh cannot be extrapolated to the factual matrix before us.

On the contrary the obiter dictum in Ram Naresh Yadav as well

as in Kishan Singh are available to us to ensure that preventive

action is devised to combat the abuse of Court process and

facilitative steps are taken to secure the ends of justice. So far as

the views expressed by Coordinate Benches of this Court in Mohd.

Tahir and Harbir Singh are concerned, even though the latter

merely follows the former, the impact of Section 482 of the CrPC

was not considered at all. In our humble opinion the matter is,

therefore, res nova.

19. In the course of arguments on the interesting aspect of law

we had noted the views of the Division Benches of the Bombay

High Court in Nandkumar Munnaswami Pilley -vs- State of

Maharashtra, 2008 All MR(Crl.) 136 (Coram : D.G. Deshpande and

S.R. Sathe, JJ) and Chapaya -vs- State of Maharashtra (Coram :

Naresh H. Patil and P.R. Borkar, JJ). With all respect and with due

humility we find that in Chapaya Bani Singh has been applied

without noticing the distinguishing fact situation. On the other

hand, in Nand Kumar the Division Bench did not lose sight of the

fact that the appellants were ―not amenable and available to

notices, non bailable warrants and action under Sections 82 and 83

of the Cr.P.C. ..... Even otherwise i.e. even if we appoint Advocate

from the Legal Aid Panel to represent the accused in these cases,

the question will be if we dismiss the appeal, then how to secure

the presence of the accused so that they can be taken into custody

and sent to jail for undergoing the sentence‖. The Division Bench

then concluded that ―dismissal of the appeal is the only alternative

left before us‖.

20. Lakshmandas was decided by a Division Bench of the

Bombay High Court comprising Patel and Kantawala, JJ. It noted

that the CrPC suggests that even if the appellant does not appear

to argue his appeal the Court could have heard the appeal on

merits; the appeal ought not to be dismissed for default. Having

said this, the Bench opined that this principle does not apply to the

case of an appellant who has obtained bail and thereafter jumped

bail. The Division Bench took recourse to the inherent powers of

the High Court and arrived at the conclusion that there can be no

injustice in dismissing an appeal where the appellant has jumped

bail and had failed to appear in the Court. Lakshmandas was not

cited before the Division Benches of that very Court either in

Nandkumar or in Chapaya. Chapaya is per incuriam, whereas

Nandkumar is in sync with Lakshmandas.

21. This discussion reveals that at least two other High Courts,

namely, High Court of Bombay and High Court of Patna after due

deliberation have concluded that appeals filed by convicts who

have thereafter absconded can be dismissed on this short ground

without entering upon the merits of the appeal. We have also not

found it necessary to refer to the Rules and Orders applicable in

different High Courts which prescribe the circumstances in which

an appellant is required to be present in Court. This is for the

simple reason that it is beyond cavil that the Court can, at any

stage of the proceedings, require the personal presence in Court of

any of the parties before it. The High Court Rules and Orders

would indubitably be relevant if the Court has not explicitly

ordered the presence of the parties. Where coercive steps such as

issuance of non-bailable warrants have been ordered, there can

scarcely be any doubt that the appellant/convict or the

respondent/accused must attend the Court, or face the

consequences of his absence.

22. In Daya Shankar -vs- State of Bihar, 2004(3) BLJR 2330 :

2005 CriLJ482 the Division Bench presided over by Justice Aftab

Alam (as his Lordship then was) distinguished Bani Singh. Faced

with the situation where the appellant had rendered himself

untraceable and non-responsive to judicial process the Bench

dismissed his appeal without reference to its merits, clearly

stating, however, that the dismissal of the appeal was not for

default or non-appearance but because of the conduct of the

appellant.

23. We have endeavoured to digest the law pertaining to

precedents for myriad reasons. Firstly, to appreciate the point that

the binding nature of a precedent is only if the facts in the previous

case can be substantially extrapolated to those with which the

Court is dealing. Secondly, that the principles akin to per incuriam

would render a decision irrelevant if a binding judgment or a

provision of law has not been considered. Thirdly, that law is not

immutable or static but on the other hand is expected to respond

to and adapt with the changing needs of society. With this

reiteration we shall discuss the views of Coordinate Benches of this

Court on interlocutory order in Mohd. Tahir and Harbir Singh.

The factual matrix in Harbir Singh is similar to what obtains

before us. The other decision is Ram Gopal by the same Bench as

in Harbir Singh with the difference that it was a State Appeal

and, therefore, the Respondent was not a convict. Since we find it

difficult to reconcile with the views in Harbir Singh and Mohd.

Tahir of Coordinate Benches, our immediate reaction was to

recommend and refer the controversy to a Larger Bench. Had

these Judgments been brought to our notice at the commencement

of the hearings, it is quite possible that we would have adopted this

course. After hearing counsel in great detail we have not thought

it necessary for the simple reason that these Benches did not

consider Section 482 of the CrPC and in fact decided the matter

only on Bani Singh.

24. Section 482 of the CrPC is of singular and seminal

significance. The statutory provision which immediately comes to

mind is Section 151 of the CPC because to a great extent the

language employed therein appears to be identical to Section 482

of the CrPC. There are, however, several distinguishing features

between these two Sections as is manifest from a reading thereof.

We are juxtaposing the two Sections for the facility of reference:-

Section 482 of CrPC                Section 151 of CPC

Saving of inherent power of        Saving of inherent powers of
High Court.--Nothing in this        Court.--Nothing in this Code

Code shall be deemed to limit or shall be deemed to limit or affect the inherent powers of the otherwise affect the inherent High Court to make such orders power of the Court to make such as may be necessary to give orders as may be necessary for effect to any order under this the ends of justice or to prevent Code, or to prevent abuse of the abuse of the process of the process of any Court or Court.

otherwise to secure the ends of justice.

25. It is at once obvious that whereas Section 482 of the CrPC is

available only to the High Courts, Section 151 can be resorted to at

any stage of civil judicial proceedings in any of the hierarchical

tiers. Secondly, the use of the word ‗otherwise' in Section 482 has

the avowed effect of boundlessly broadening the boundaries of

inherent powers of the High Court in exercise of its criminal

jurisdiction. Thirdly, it can be employed to ensure obedience of any

order passed by the Court because of the phrase ―to give effect to

any order under this Code‖. State of Karnataka -vs- L. Muniswamy,

(1977) 2 SCC 699 enunciates that in exercise of its inherent

powers in criminal matters ―the High Court is entitled to quash a

proceeding if it comes to the conclusion that allowing the

proceeding to continue would be an abuse of the process of the

Court or that the ends of justice require that the proceeding ought

to be quashed. ....The ends of justice are higher than the ends of

mere law though justice has got to be administered according to

laws made by the legislature. The compelling necessity for making

these observations is that without a proper realisation of the object

and purpose of the provision which seeks to save the inherent

powers of the High Court to do justice between the State and its

subjects, it would be impossible to appreciate the width and

contours of that salient jurisdiction‖. A Three-Judge Bench clarified

in Krishnan -vs- Krishnaveni, (1997) 4 SCC 241 that although a

second Revision before the High Court after dismissal of the first

one by the Court of Sessions is barred by Section 397(3), the

inherent powers of the High Court under Section 482 are

nevertheless available albeit with restraint so as to avoid needless

multiplicity of the proceedings. Their Lordships opined that -

―when the High Court notices that there has been failure of justice

or misuse of judicial mechanism or procedure, sentence or order is

not correct, it is but the salutary duty of the High Court to prevent

the abuse of the process or miscarriage of justice or to correct

irregularities ..... The inherent power of the High Court is not one

conferred by the Code but one which the High Court already has in

it and it is preserved by the Court‖. Raj Kapoor -vs- State (Delhi

Administration), AIR 1980 SC 258 considered the question whether

the inherent power of the High Court under Section 482 stands

repelled when the revisional power under Section 397 overlaps.

The view was that- ―Section 482 contradicts this contention

because nothing in the Code, not even Section 397 can affect the

amplitude of the inherent power preserved in so many terms by the

language of S.482. Even so, a general principle pervades this

branch of law; when a specific provision is made easy resort to

inherent power is not right except under compelling

circumstances. Not that there is absence of jurisdiction but that

inherent power should not invade areas set apart for specific

power under the same Code‖. In State of Punjab -vs- Kasturi Lal,

2004 Crl. L.J. 3866 after cautioning against reckless use of Section

482 their Lordships have observed that - ―Inherent jurisdiction

under the section though wide has to be exercised sparingly,

carefully and with caution and only when such exercise is justified

by the tests specifically laid down in the section itself. It is to be

exercised ex debito justitiae to do real and substantial justice for

the administration of which alone Courts exists. Authority of the

Courts exists for advancement of justice and if any attempt is made

to abuse that authority so as to produce injustice, the Court has

power to prevent such abuse. It would be an abuse of process of

the Court to allow any action which would result in injustice and

prevent promotion of justice. In exercise of the powers Court

would be justified to quash any proceeding if it finds that

initiation/continuance of it amounts to abuse of the process of

Court or quashing of these proceedings would otherwise serve the

ends of justice‖. Advanced Law Lexicon by P. Ramanatha Aiyar

defines Justice as -―The exercise of authority or power in

maintenance of right; vindication of right by assignment of reward

or punishment; the administration of law or the form and processes

attending it; the principle of just dealing‖.

26. The enunciation of the inherent powers of the High Court in

exercise of its criminal jurisdiction articulated on several occasions

by the Apex Court has emboldened us to press Section 482 into

operation. We reiterate that there is an alarming and sinister

increase in instances where convicts have filed appeals apparently

with a view to circumvent and escape undergoing the sentences

awarded against them. The routine is to file an appeal, apply and

be enlarged on bail and thereafter to become untraceable. It is the

bounden and pious duty cast upon the Judge not merely to ensure

that an innocent person is not punished but equally not to be a

mute spectator or an instrument by which a convict escapes

serving out his sentence. (See Stirland v. Director of Public

Prosecutions, 1944 AC 315 quoted with approval by Arijit Pasayat,

J. in State of Punjab v. Karnail Singh, (2003) 11 SCC 271). If the

Court is derelict in doing its duty, the social framework will be rent

asunder and anarchy will rule everywhere. It is, therefore,

imperative to put an end to such practice by dismissing appeals,

not in default or for non-prosecution, but because the proceedings

in the Appeal manifest an abuse of the process of the Court and

also an endangerment of the ends of justice. The inherent powers

of the High Court, as pointedly preserved in Section 482 of the

CrPC, are always to be used with care and caution. Dismissal of an

appeal by the High Court should be in exercise of its inherent

powers and should be exercised with the greatest circumspection

and restraint. There would be no justification to dismiss the

Appeals, as in Bani Singh, merely because the appellant or his

advocate fails to appear or prosecute the appeals on a date of

hearing. Dismissal would be justified where the Court has

employed steps available to it to secure the presence of the

convict. It would be justified where non-bailable warrants have not

had the desired effect of ensuring the presence of the

appellant/convict, or by completion of steps for declaring the

convict as a proclaimed offender. Compliance with these provisions

would leave no doubt in the mind of the Court that the convict has

no intention of pursuing his appeal; that the filing of the appeal

was only a charade and a strategem to frustrate the outcome of a just

trial. Tolerance is called for where the convict has expiated his crime.

The right to personal freedom, protected by Article 21 of the

Constitution of India, cannot be rendered nugatory by a pretentious or

punctilious performance of the motions of an appeal. In most cases

the interests of a convict may not be adequately safeguarded by the

appointment of advocates in legal aid schemes or by amicus curiae.

The appellant would be satisfied only if his appeal is argued by an

advocate of his choice. On the other hand, a party, which chooses not

to participate in the hearing of his appeal, can scarcely complain of

violations of his Fundamental Right to remonstrate against the

curtailment of his personal freedom. A convict cannot abuse the

process and defeat criminal justice.

27. We now return to the proceedings in the Appeals before us.

Mukesh, Appellant in Crl. A.186/1992 and Suresh, Appellant in Crl. A.

189/1992, were enlarged on bail on 9.7.1993 by Orders of this Court.

Almost immediately thereafter neither did the Appellants appear nor

was any representation made on their behalf. Bailable as well as non-

bailable warrants were issued. Connected Appeals are being duly

prosecuted; in fact, at one hearing their counsel had, on 25.9.2004,

submitted that he would endeavour to produce the Appellants.

Although proceedings under Sections 82 and 83 of the CrPC have

not been initiated, we are in no manner of doubt, because of

the presence of the co-accused and the issuance of non-

bailable warrants, that the Appellants are deliberately not

prosecuting their Appeals. They have violated the terms on which

they were enlarged on bail. We, therefore, exercise the inherent

powers of the High Court which are now preserved by Section 482

of the CrPC and dismiss these Appeals as they are manifestly an

abuse of the process of the Court. Far from securing the ends of

justice their pendency or disposal on merits will indubitably defeat

the ends of justice.

28. Appeals are dismissed with no order as to costs. Bail Bonds

are cancelled and sureties forfeited. The Appellants are directed to

be taken into custody to serve their remaining sentence.

29. A copy of the Judgment be sent to the Trial Court for

realisation of the surety amount.

30. We express our appreciation to Mr. P.K. Dey, who, as

amicus curiae, expended his time and energy in placing all the

facets of the problem before us.

                                             ( VIKRAMAJIT SEN )
                                                   JUDGE



August 01, 2008                                  ( V.K. SHALI )
tp                                                   JUDGE