Jharkhand High Court
Puna Yadav @ Puna Ram Yadav vs The State Of Jharkhand on 1 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Miscellaneous Jurisdiction)
Cr.M.P. No. 4084 of 2019
1. Puna Yadav @ Puna Ram Yadav
2. Kameshwar Yadav
3. Santosh Yadav ..... .... Petitioners
Versus
The State of Jharkhand .... .... Opposite Party
------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
-------
For the Petitioners : Ms. Apoorva Singh, Advocate
For the State : Mr. Vishwanath Ray,APP
--------
st
Order No.05/Dated: 1 December 2022
This criminal miscellaneous petition has been filed seeking
restoration of Cr. Appeal (DB) No.1014 of 2007 qua Puna Yadav,
Kameshwar Yadav and Santosh Yadav.
The said criminal appeal in respect of them was dismissed vide
order dated 12th October 2018 for non-prosecution. However, in the order
dated 12th October 2018, a Division Bench of this Court has made it clear that
the appellant Nos. 1 to 3 after they are taken into custody may file an
application for restoration of the appeal.
Ms. Apoorva Singh, the learned counsel appearing on behalf of
the appellants, namely, Puna Yadav, Kameshwar Yadav and Santosh Yadav,
refers to the judgment of the Hon'ble Supreme Court in "Dhananjay Rai @
Guddu Rai v. State of Bihar" 2022 SCC OnLine SCC 880 to submit that a
criminal appeal cannot be dismissed for non-prosecution rather in view of the
provisions under section 304 of the Code of Criminal Procedure, the Court is
required to seek assistance of an amicus and on hearing the amicus appearing
on behalf of the convicts, the appeal should be decided on merits.
In "Dhananjay Rai" the Hon'ble Supreme Court has held 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 case appears to be sound except for a minor
clarification which we consider necessary to mention. The plain
language of Section 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 Section 386 mandates that after the record
-2- Cr.M.P. No. 4084 of 2019
is received, the appellate court may dispose of the appeal after
hearing the accused or his counsel. Therefore, the plain language
of Sections 385-386 does not contemplate dismissal of the appeal
for non-prosecution 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, not 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 case 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 to 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 Section 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 Section 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 of 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 Sections 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
case did not apply the provisions of Sections 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."
Above being the position in law, the order dated 12th October
2018 is recalled and, consequently, Cr. Appeal (DB) No. 1014 of 2007 is
restored to its original file qua Puna Yadav, Kameshwar Yadav and Santosh
-3- Cr.M.P. No. 4084 of 2019
Yadav.
Post this matter before the appropriate Bench.
Let lower Court records be called for from the Court concerned
within a period of four weeks.
(Shree Chandrashekhar, J.)
SB/Nibha (Ratnaker Bhengra, J.)
