Sajan. V vs State Of Kerala
2023 Latest Caselaw 9019 Ker

Crl.R.P.No.742/2023                    1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
                      CRL.REV.PET NO. 742 OF 2023
AGAINST THE JUDGMENT IN CRA 238/2017 OF ADDITIONAL DISTRICT
             &    SESSIONS COURT - VI, THIRUVANANTHAPURAM
      CC 973/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
                                II,ATTINGAL
REVISION PETITIONER/APPELLANT/ACCUSED:

                 SAJAN. V
                 AGED 52 YEARS
                 S/O. ABDUL VAHAB, SAJNA MANZIL, VADAKKUMBHAGOM,
                 VETTUROAD, KAZHAKUTTOM P.O., (PROPRIETOR SMM
                 RESTAURANT, VETTUROAD, KANIYAPURAM, THIRUVANANTHAPURAM
                 DISTRICT, PIN - 695301.
                 BY ADV SHAJIN S.HAMEED


RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:

       1         STATE OF KERALA
                 REPRESENTED BY THE PUBLIC PROSECUTOR,
                 HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
       2         T. KRISHNANKUTTY
                 SEETHALAYAM, MANAKKATTUVILAKOM, NEAR MUSLIM HS,
                 KANIYAPURAM, KANIYAPURAM P.O.,
                 THIRUVANANTHAPURAM DISTRICT, PIN - 695301.



                 PUBLIC PROSECUTOR SRI M P PRASANTH


       THIS      CRIMINAL   REVISION       PETITION   HAVING   BEEN   FINALLY
HEARD ON 10.08.2023, THE COURT ON 23.08.2023 DELIVERED THE
FOLLOWING:
 Crl.R.P.No.742/2023               2




                                                          "C.R"

                   A. BADHARUDEEN, J.
           ================================
                    Crl.R.P No.742 of 2023
         ================================
             Dated this the 23rd day of August, 2023


                             ORDER

This revision petition has been filed under Sections 397 and

401 of the Code of Criminal Procedure (for short `Cr.P.C"

hereafter), challenging judgments in C.C.No.973/2009 on the files

of the Judicial First Class Magistrate Court-II, Attingal dated

22.11.2017 and the judgment in Crl.Appeal No.238/2017 dated

23.06.2018 rendered by the Additional District and Sessions Judge-

VI, Thiruvananthapuram.

2. Heard the matter in detail. Perused the judgments

impugned and the relevant materials available.

3. Short facts:

The 1st respondent in this revision petition, who is the

complainant in C.C.No.973/2009, launched prosecution alleging

commission of offence punishable under Section 138 of the

Negotiable Instruments Act (`N.I Act' for short) when cheque for

Rs.2,50,000/- alleged to be issued by the accused in favour of the

complainant on 01.12.2008 got dishonoured for want of funds and

the accused failed to repay the amount covered by the cheque even

on acceptance of demand notice.

4. The Magistrate Court took cognizance in this matter

and secured the presence of the accused for trial. Then the learned

Magistrate tried the matter and finally convicted the accused for the

offence punishable under Section 138 of the N.I Act and sentenced

as under:

"Therefore, the accused is convicted u/s. 255(2) Cr.P.C and sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.2,50,000/- (Rupees two lakhs fifty thousand only). In default of payment of fine amount, the accused shall undergo simple imprisonment

for a further period of one month. Fine amount, if realised, shall be given to the complainant as compensation u/s.357 Cr.P.C."

5. The revision petitioner herein filed appeal before the

Sessions Court and the learned Additional Sessions Judge-VI,

Thiruvananthapuram, dismissed the appeal as under:

"Appellant is continuously absent and there was no representation for the appellant. The order of conviction and sentences though challenged, nothing has been brought on record to dispute the final finding. On re-appreciation of evidence adduced before the court below, it would reveal that there is sufficient materials to establish the guilt of accused. The judgment of the court below warrant no interference. Accordingly the appeal stands dismissed. Communicate the judgment to Judicial First Class Magistrate Court-II, Attingal for necessary action against the accused."

6. It is submitted by the learned counsel for the revision

petitioner that even though the Additional Sessions Court narrated

in the judgment that on re-appreciation of evidence adduced before

the court below it would reveal that there was sufficient material to

establish the guilt of the accused, in fact, the appellate court failed

to re-appreciate the evidence and no discussion in the appellate

judgment, how the evidence was re-appreciated and how the court

below entered into conviction. According to the learned counsel

for the appellant, the appellate court dismissed the appeal for non-

prosecution. It is also submitted that the appeal should not have

been dismissed for non- representation for the appellant or for non-

prosecution. The said course of action is not legally permissible.

Therefore, the appellate judgment is liable to be set aside and the

appeal may be remanded to the appellate court for hearing on

merits.

7. The questions pose herein are;

(i) Whether an appeal against the conviction and sentence

filed by an accused can be dismissed on the ground of non-

representation, or for non-prosecution ?

(ii) How does an appellate court can dispose of an appeal

when the appellant or his counsel is not ready to argue the matter

on merits ?

8. In this connection it is relevant to refer a decision of the

Apex Court in [AIR 1987 SC 1500], Ram Naresh Yadav v. State of

Bihar, wherein the Apex Court held as under:

"It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become wellnigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants."

9. But the ratio in Ram Naresh Yadav's case (supra) was

rendered without noting an earlier decision in [AIR 1971 SC 1606],

Shyam Deo Pandey v. State of Bihar, where the Apex Court held

that once the appellate court has admitted the appeal to be heard

on merits, it cannot dismiss the appeal for non-prosecution for non-

appearance of the appellant or his counsel, but must dispose of

the appeal on merits after examining the record of the case. It next held

that if the appellant or his counsel is absent, the appellate court is not

bound to adjourn the appeal but it can dispose it of on merits after

perusing the record.

10. In Ram Naresh Yadav's case (supra), the Apex Court

did not analyse the relevant provisions of the Code nor did it notice

the view taken in Shyam Deo case but held that if the appellant's

counsel is absent, the proper course would be to dismiss the appeal

for non-prosecution but not on merits; it can be disposed of on

merits only after hearing the appellant or his counsel or after

appointing another counsel at State cost to argue the case on behalf

of the accused.

11. The correctness of the above decisions was considered

by a 3 Bench of the Apex Cout in the decision reported in [(1996) 4

SCC 720 : AIR 1996 SC 2439], Bani Singh & Ors. v. State of U.P

and the Apex Court overruled the decision in Ram Naresh's case

(supra) while approving the ratio in Shyam Deo Pandey's case

(supra) and in para.14 the Apex Court 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'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.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 satisfy 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."

12. It was held further in para.15 that:

"............... 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 of 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 subject that the Division Bench which decided Ram Naresh Yadav's case (AIR 1987 SC 1500) did not apply the provision of Ss.385-386 of the Code correctly when it indicated that the Appellate Court was an obligation to adjourn the case to another date if the appellant or his lawyer remained absent."

13. The decision in Bani Singh's case (supra) was rendered

on 9th July, 1996. Prior to Bani Singh's case (supra), in the

decision reported [(1996) 9 SCC 372], Kishan Singh v. State of

U.P., delivered on 2nd March, 1992, another 3 Bench of the Apex

Court held 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.

In the present case 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 the 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."

14. In Kishan Singh v. State of U.P.'s case (supra), the

three Bench of the Apex Court overruled the decision in Ram

Naresh's case (supra) and affirmed the decision in Shyam Deo

Pandey's case (supra), even prior to Bani Singh's case (supra).

15. In the latest decision of the Apex Court reported in

[2022 KHC 6710], Dhananjay Rai @ Guddu Rai v. State of

Bihar, the Apex Court considered Bani Singh's case (supra) as

well as the decision in Shyam Deo Pandey's case (supra), [(2013)

2 SCALE 492 = (2014) 14 SCC 222], Surya Baksh Singh v. State

of Uttar Pradesh and [(2013) 3 SCC 721], K.S.Panduranga v.

State of Karnataka and reiterated the legal position and held that

there is no ground to dismiss an appeal against conviction, which

was already admitted for final hearing, for non- prosecution,

without adverting to merits.

16. Thus the legal position emerges is that when an appeal

is not summarily dismissed under Section 384 of Cr.P.C and the

appellate court admits the appeal, the same cannot be dismissed for

non-representation or non-prosecution without adverting to the

merits of the appeal. Further the appellate court is not bound to

adjourn the appeal if both the appellant and his counsel are absent,

but the appellate court can adjourn the matter to provide

opportunity to the appellant or his counsel to argue the matter

though the appellate court is not bound to do so. Even in the

absence of appellant or his counsel, the appellate court can dispose

of the appeal on merits after perusing the records, evidence and the

judgment of the trial court by a reasoned order detailing the manner

in which re-appreciation of evidence has been done. The appellate

court can also appoint a State Brief or Amicus Curiae to assist the

court in disposing the appeal on merits, as an alternative. If the

case would be decided on merits on perusal of the records and on

re-appreciation of the evidence available in the absence of the

appellant's counsel or without the aid of State Brief or Amicus

Curiae, the Higher Court would remedy the situation to avoid

failure of justice, if any.

17. Going by the order of the appellate court, even though it

has been stated that evidence was re-appreciated, the order depicts

that the same is not a reasoned order after re-appreciating the

evidence. In fact, disposal of the appeal is not on merits. The

order impugned appears to be one dismissing the appeal for non-

representation. Therefore, the judgment of the appellate court

impugned herein stands set aside and Crl.Appeal No.238/2017 on

the files of the Additional Sessions Court-VI stands readmitted

with direction to the appellate court to dispose of the appeal afresh,

following the principles herein above referred.

18. The Revision Petition is allowed as above.

19. Since the appeal is of the year 2017, it is ordered that

the appellate court shall dispose of the appeal within a period of

one month from the date of receipt of a copy of this order and the

revision petitioner is directed to argue the appeal on merits before

the trial court within a period of one month.

20. Parties shall appear before the appellate court on

08.09.2023 at 11.00 a.m.

Registry shall forward a copy of this order to the courts

concerned for information and compliance.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/