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



1
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
1
(1971) 1 SCC 855
2
(2013) 2 SCALE 492 = (2014) 14 SCC 222
3 2004 SCC Online Pat 1189
4
(2013) 3 SCC 721
3
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
5
(1996) 4 SCC 720
6 AIR 1987 SC 1500
4
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
5
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.

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