Prabhu Dayal vs The State
2009 Latest Caselaw 4671 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                              Date of decision: 17.11.2009


+                           CRL. A. No.101 of 1995


PRABHU DAYAL                                           ...APPELLANT
                            Through:       Nemo.


                                   Versus


THE STATE                                              ...RESPONDENT
                            Through:       Mr. Sunil Sharma, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                No

2.        To be referred to Reporter or not?                 No

3.        Whether the judgment should be                     No
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant was convicted under section 302 of Indian

Penal Code (for short IPC) vide judgment dated

30.03.1995 and vide order on sentence of the even date

sentenced to undergo imprisonment for life and to pay a

fine of Rs 500/- and in default of payment of fine to

further undergo RI for a period of three months.

2. The appellant was granted bail and his sentence was

suspended till the disposal of the appeal on furnishing a

personal bond in the sum of Rs 5000/- with one surety of

the like amount vide Order of this Court dated 19.7.1995.

3. On the appeal being taken up for hearing as per its turn

on 01.07.2009, none appeared for the appellant and thus

NBWs were issued for production of the appellant

returnable for 13.08.2009. On 13.08.2009, again none

appeared for the appellant and fresh NBWs were directed

to be issued against the appellant. On the said date,

notice to surety was also issued and the case was then

posted for 15.09.2009. On the said date, NBWs issued

against the appellant remained unexecuted though

surety of the appellant appeared in the Court and sought

some time to produce the appellant. On 06.10.2009, next

date fixed in the matter, surety of the appellant

appeared and stated that she has not been able to

produce the appellant and requested for some more time

stating that the appellant is residing somewhere in

Punjab and also prayed for issuance of NBWs against the

appellant as the appellant may not be willing to come

voluntarily with her and accordingly we again issued

NBWs against the appellant and surety was directed to

inform the IO about the present whereabouts of the

appellant so as to execute the NBWs and the matter was

posted for today.

4. As per the status report filed in the Court today, which is

taken on record, the NBWs could not be executed as no

assistance was provided by the surety. Vide a separate

order passed today, we have directed the Trial Court to

proceed against the surety under Section 446 of Cr.P.C.

5. This Court has been faced with a number of appeals

where the accused has either jumped the parole or

where the sentence was suspended on account of the

appeal not being taken up for hearing has become

untraceable and neither the appellant nor the counsel

appears to argue the appeal. A question arose how such

matters have to be dealt with and the said aspect forms

a part of the pronouncement by a Co-ordinate Bench of

this Court in Mukesh Vs. State 2008 (3) JCC 1986. The

Division Bench after discussing the different legal

pronouncements of the Apex Court observed as under:

―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 High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

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.‖

(emphasis supplied)

6. The appeal was dismissed after making the aforesaid

observations. We are faced with a similar situation and

follow the same course of action and exercise the

inherent powers of the High Court which are preserved

by Section 482 of the Cr.P.C. and dismiss the appeal as it

is 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. Our repeated endeavour to secure the presence

of the appellant including by coercive means has not

succeeded. The surety also has been unable to trace out

the appellant or is not disclosing the whereabouts of the

appellant. Despite assurance on the last date of hearing,

no assistance has been forthcoming from the surety to

locate the appellant. We, however, hasten to add that

though we have adopted the aforesaid course of action

we have also taken care to go through the trial court

record and the judgement and ex facie do not find any

infirmity in the reasoning given by the learned trial court.

7. The appeal is accordingly dismissed with no order as to

costs. Bail Bonds are cancelled and sureties forfeited.

The appellant is directed to be taken into custody to

serve his remaining sentence.

SANJAY KISHAN KAUL, J.

NOVEMBER 17, 2009                                  AJIT BHARIHOKE, J.
dm