Dhananjay Rai @ Guddu Rai Versus State of Bihar

Dhananjay Rai @ Guddu Rai Versus State of Bihar

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.803 of 2017

Dhananjay Rai @ Guddu Rai …..Appellant

 Versus

State of Bihar …..Respondent

J U D G M E N T

Abhay S. Oka, J.

1. The short issue involved in this appeal is whether an appeal

against conviction filed by an accused under Sub-Section (2) of Section

374 of the Code of Criminal Procedure, 1973 (for short,' Cr. P.C.') can

be dismissed on the ground that the accused is absconding.

2. The appellant was convicted for the offences punishable under

Sections 302 and 120B of the Indian Penal Code (IPC) and Section 27(1)

of the Arms Act, 1959. The maximum substantive sentence is of life

imprisonment. Against the aforesaid judgment and order dated 04th

September 2009 of conviction passed by the learned Additional

Sessions Judge, Buxar in Sessions Trial No.338 of 2006, an appeal was

preferred by the appellant before the High Court of Patna. On 29th

October 2009, a Division Bench of the High Court admitted the appeal

for hearing. When the application for suspension of sentence filed by

the appellant came up before a Division Bench of the High Court, it

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was brought to the notice of the Court that the appellant was

absconding. Thereafter, a non-bailable warrant was issued against the

appellant. As the appellant was absconding, the Director General of

Police announced a reward to the informant who could report the

whereabouts of the appellant.

3. By the impugned judgment and order dated 25th August 2015,

a Division Bench of the High Court of Patna dismissed the appeal

without adverting to the merits of the appeal on the ground that the

appellant was absconding.

4. The Division Bench held that though the remedy of an appeal is

a valuable right, the appellant forfeited his right to prefer an appeal the

moment he escaped from the custody and flagrantly abused the

process of law. The learned Judges held that such deliberate act on the

part of the appellant amounts to defiance of the criminal

administration of justice. The Division Bench referred to a decision of

this Court in the case of Shyam Deo Pandey & Ors. v. State of Bihar1.

The Division Bench referred to another decision of this Court in the

case of Surya Baksh Singh v. State of Uttar Pradesh2 as well as a

decision of the same High Court in the case of Daya Shankar Singh &

Anr. v. State of Bihar3. After adverting to another decision of this

Court in the case of K.S. Panduranga v. State of Karnataka4

, the

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(1971) 1 SCC 855

2

(2013) 2 SCALE 492 = (2014) 14 SCC 222

3 2004 SCC Online Pat 1189

4

(2013) 3 SCC 721

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Division Bench held that the circumstances of the case before it were

exceptional and, therefore, the Court was required to deviate from the

settled principle of law that once the appellate court has refused to

dismiss the appeal summarily, the same must be heard on merits.

5. After having heard the learned counsel appearing for the

appellant and the learned counsel appearing for the respondent-State,

for the reasons which are recording, we have no option but to set aside

the impugned judgment and remand the appeal for fresh consideration

of the High Court.

6. In the impugned judgment, the Division Bench of the Patna High

Court has itself recorded that it is deviating from the settled position of

law. Such an approach cannot be countenanced. The well settled law

can be found in the decision of this Court of a Bench consisting of three

Hon'ble Judges in the case of Bani Singh & Ors. v. State of U.P.5. The

issue before this Court in the said case was whether the High Court

was justified in dismissing an appeal against conviction for nonprosecution. This Court noted the conflict in the views expressed by

two co-ordinate Benches of this Court in the case of Shyam Deo1 and

Ram Naresh Yadav v. State of Bihar6. Paragraphs 13 to 15 of the said

decision are relevant, which read thus :

"13. What then is the area of conflict between the two decisions of

this Court? In Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri)

353 : AIR 1971 SC 1606] , this Court ruled that once the appellate

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(1996) 4 SCC 720

6 AIR 1987 SC 1500

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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. In Ram Naresh Yadav case [AIR 1987 SC

1500 : 1987 Cri LJ 1856] , the Court did not analyse the relevant

provisions of the Code nor did it notice the view taken in Shyam

Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC

1606] 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.

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 [(1971) 1 SCC 855 : 1971 SCC (Cri)

353 : AIR 1971 SC 1606] 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 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

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difficult to agree with the suggestion in Ram Naresh Yadav

case [AIR 1987 SC 1500 : 1987 Cri LJ 1856] 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 [AIR 1987 SC 1500 : 1987 Cri LJ 1856] 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

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adjourn the case to another date if the appellant or his lawyer

remained absent."

 (emphasis added)

7. We may note here that the High Court relied upon its earlier

decision in the case of Daya Shankar Singh3 which was based on Rule

8 of Chapter XII of the Patna High Court Rules which predicates that

no appeal against conviction shall be heard for admission unless the

accused has surrendered to the order of the Court below convicting

him to a sentence of imprisonment except in a case where the appellant

has been released on bail by the trial court after convicting him. In the

case in hand, the appeal was already admitted on 29th October 2009.

Therefore, the said rule, which applies to the pre-admission stage, was

not applicable in this case.

8. The anguish expressed by the Division Bench about the brazen

action of the appellant of absconding and defeating the administration

of justice can be well understood. However, that is no ground to dismiss

an appeal against conviction, which was already admitted for final

hearing, for non-prosecution without adverting to merits. Therefore,

the impugned judgment will have to be set aside and the appeal will

have to be remanded to the High Court for consideration on merits.

9. We may note that subsequently, the appellant was taken into

custody and in fact an application for bail made in this appeal was

heard and rejected on 14th May 2018.

10. Since the appeal before the High Court is of the year 2009, the

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same will have to be heard expeditiously. If the appeal could not be

heard within a reasonable time, in that event, the appellant will have

to be granted a liberty to apply for suspension of sentence.

11. Accordingly, the impugned judgment and order dated 25th

August 2015 is hereby set aside. Criminal Appeal (D.B.) No.936 of 2009

is remanded to the High Court of Judicature at Patna for hearing in

accordance with the law.

12. Considering the fact that the appeal against conviction under

Section 302 of IPC is of the year 2009, necessary priority deserves to

be given to the disposal of the appeal. We, therefore, request the High

Court to ensure that appeal is disposed of as expeditiously as possible,

preferably within a period of six months from today.

13. In the event, that the appeal is not heard within a period of six

months from today, it will be open to the appellant to apply for

suspension of the sentence before the High Court.

14. Appeal is partly allowed in the above terms.

………………………………..J.

[ABHAY S. OKA]

………………………………..J.

 [M.M. SUNDRESH]

New Delhi

July 14, 2022.