Delhi High Court
Udaibir vs State on 17 February, 2016
Author: Siddharth Mridul
#23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th February, 2016
+ CRL. APPEAL 23/2007
UDAIBIR ..... Petitioner
Through None
versus
STATE ..... Respondent
Through Ms. Radhika Kolluru, APP for State
SI Sumer Chand, P.S. Nabi Karim
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
1. The present is an appeal assailing the impugned judgment dated 29th
September, 2006 passed by the learned Additional Sessions Judge, Delhi in SC
No. 12/05 in FIR No. 66/2000 registered at Police Station- Nabi Karim, Delhi,
under Section 302 IPC whereby the appellant has been convicted of culpable
homicide not amounting to murder and convicted under Section 304 (Part-I)
IPC. By way of order on sentence dated 6th October, 2006, the appellant was
sentenced to undergo imprisonment for a period of five years and to pay a fine
of Rs. 1,000/- with the stipulation that in default of payment of fine, the
appellant shall undergo further imprisonment for a period of three months.
2. The present appeal came to be admitted on 23 rd March, 2007 and the
substantive sentence awarded to the appellant was suspended and he was
directed to be released on bail by way of order dated 16 th April, 2007 passed by
this Court.
3. This Court issued Non-Bailable Warrants against the appellant on 27th
January, 2009 and forfeited his bail bond. It was also directed to issue notice to
the appellant's surety. Thereafter, in response to the notice of default being
issued to the counsel for the appellant by way of order dated 24th September,
2013 passed by this Court, a report was filed by the registry to the effect that
counsel appearing on behalf of the appellant had stated that the latter had not
contacted him ever since the year 2008 and that his whereabouts were unknown
to him.
4. Eventually, by way of order dated 23rd October, 2013, bailable warrants
were issued against the surety of the appellant, who happens to be his father. As
recorded in the order dated 2nd December, 2013, the surety of the appellant
stated that the appellant has not remained in touch with him for the last three
years and that he is unaware of his whereabouts. In those circumstances, the
personal bond of the appellant as also the amount of surety was forfeited by this
Court by way of the said order dated 2nd December, 2013 and learned counsel
appearing on behalf of the appellant was directed to address arguments in the
case.
5. None appeared on behalf of the appellant thereafter on subsequent dates
of hearing and Non-Bailable Warrants issued for the production of the appellant
herein have remained unexecuted.
6. It is urged by Ms. Radhika Kolluru, learned APP appearing on behalf of
the official respondent that the surety appeared before the Trial Court and
surrendered the surety amount. Ever since then, none appears on behalf of the
appellant herein.
7. The Hon'ble Supreme Court has in the case of Surya Baksh Singh vs.
State of Uttar Pradesh reported as (2014) 14 SCC 222, in paragraphs 25 and 26
held as follows:-
"25. The enunciation of the inherent powers of the High Court in
exercise of its criminal jurisdiction already articulated by this Court on
several occasions motivates 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 get enlarged on bail or get exempted from
surrender, and thereafter wilfully to become untraceable or
unresponsive. It is the bounden duty cast upon the Judge not merely to
ensure that an innocent person is not punished but equally not to
become a mute spectator to the spectacle of convict circumventing his
conviction. (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 fabric will be rent asunder and anarchy will rule
everywhere. It is, therefore, imperative to put an end to such practice by
the expeditious disposal of appeals. The inherent powers of the High
Court, poignantly preserved in Section 482 Cr.P.C., can also be pressed
into service but with care, caution and circumspection.
26. Reverting back to the facts of the present case a perusal of the
impugned order makes it abundantly evident that the High Court has
considered the case in all its complexities. The argument that the High
Court was duty-bound to appoint an amicus curiae is not legally sound.
Panduranga correctly considers Mohd. Sukur Ali v. State of Assam
(1996) 4 SCC 729 as per incuriam, inasmuch as the latter mandates the
appointment of an amicus curiae and is thus irreconcilable with Bani
Singh. In the case in hand the High Court has manifestly discussed the
evidence that have been led, and finding it of probative value, has come
to the conclusion that the conviction is above Appellate reproach
correction and interference. In view of the analysis of the law the
contention raised before us that it was essential for the High Court to
have appointed an amicus curiae is wholly untenable. The High Court
has duly undertaken the curial responsibility that fastens upon the
Appellate Court, and cannot be faulted on the approach adopted by it. In
this respect, we find no error."
8. A similar view had been articulated by this Court in the case of Mukesh
vs. State reported as 152 (2008) DLT (DB) 201.
9. The enunciation of law in the above stated decisions is that; if at the end
of the entire exercise of proceedings against the persons who stood surety at the
time when the convict was granted bail; and confronted with the situation of
continuous absence of the appellant as well as his counsel, the criminal justice
delivery system cannot be held to ransom and the inherent powers of the High
Courts under Section 482 of the Code of Criminal Procedure, 1973 must be
pressed into action to dismiss the appeal. A convict cannot be permitted to
circumvent his conviction and defeat criminal justice.
11. Coming to the present appeal, it is evident that the routine of filing an
appeal, applying and being enlarged on bail and thereafter wilfully becoming
untraceable and irresponsive has been the approach of the appellant in the
present appeal.
12. The present is a manifestation of the alarming and sinister increase in the
instances where convicts have filed an appeal apparently with a view to
circumvent and escape undergoing the sentence awarded against them.
13. Consequently, the present appeal is hereby dismissed.
SIDDHARTH MRIDUL, J
FEBRUARY 17, 2016
sd
