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2009 DIGILAW 1411 (JHR)

Angad Singh v. State of Bihar

2009-11-09

D.N.PATEL, R.R.PRASAD

body2009
Order: Per D.N. Patel, J. The present appeal has been preferred by the appellant-accused, as he has been convicted by the Sessions Judge, Deoghar vide order dated 21st of March,1997 for the offence punishable under Section 302 of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and fine of Rs. 5,000/as well as punished under Section 307 of the Indian Penal Code to be read with Section 34 thereof and has been sentenced to undergo rigorous imprisonment for seven years. Both these offences have been committed by the appellant-accused and the sentences are ordered to run concurrently. The appellant-accused has also convicted for the offence under Section 27 of the Arms Act, but, no separate sentence has been awarded to him. Against this order of conviction and sentence, passed by the trial court in Sessions Trial No. 185 of 1995, the present appeal has been preferred. 2. Learned counsel appearing for the appellant-accused submitted that the appellant-accused is absconding since 7th December, 1998 from jail and even on today, he is absconding. 3. We have heard Additional Public Prosecutor for State, who has presented before this Court a report of Superintendent of Jail, Jamui dated 8th September, 2009 that the appellant-accused has been absconding since 7th December, 1998 alongwith some other accused convicted in some other sessions cases. Thus, appellant-accused is absconding as on today. Learned A.P.P. has drawn our attention of Rule 141 of High Court of Jharkhand Rules, 2001 as well as towards the decision rendered by the Division Bench of Hon'ble Patna High Court decided in the case of Daya Shankar Singh and Another VS. State of Bihar as reported in 2005 Cri. Law Journal 482 [: 2004(4) PLJR 51 ], especially paragraph 10S. 10, 23 and 24 as well as a decision rendered by Hon'ble Gujarat High Court in the case of Mahendra Bhogilal Tadvi VS. State of Gujarat as reported in 2009 Cri. State of Bihar as reported in 2005 Cri. Law Journal 482 [: 2004(4) PLJR 51 ], especially paragraph 10S. 10, 23 and 24 as well as a decision rendered by Hon'ble Gujarat High Court in the case of Mahendra Bhogilal Tadvi VS. State of Gujarat as reported in 2009 Cri. Law Journal 1486 and submitted that as the appellant-accused has no faith in Justice Delivery System and there is breach of fundamental duties by the appellant-accused under Article 51-A and there is breach of Rule 141 of High Court of Jharkhand Rules, 2001, this appeal may be dismissed only on the ground that the appellant-accused is absconding and as and when he surrenders or is arrested, he can prefer an application for revival of the Criminal Appeal, if it is not unreasonably and unexcessively delayed. 4. Having heard learned counsel for both sides and looking to the facts and circumstances of the case:- (i) it appears that the present appeal has been preferred against the judgment and order passed by the Session's Judge, Deoghar dated 21 st March, 1997 in Sessions Trial No. 185 of 1995, whereby the appellant-accused has been convicted mainly for the offence under Section 302 of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs. 5,000/- as well as punished under Section 307 of Indian Penal Code to be read with Section 34 thereof and has been sentenced to undergo rigorous imprisonment for seven years. Both sentences are ordered to be run concurrently. The incident has taken place on 24th December, 1994 at 2 p.m. and it is alleged by the prosecution that firearm has been used by the appellant-accused and injuries were caused b the deceased and in this incident, PW-1 has also sustained injuries and PW-1 is injured eye witness and looking to the medical evidence also, there are injuries upon the deceased by firearm. As per the medical evidence given by PW-13-Dr. YN. Singh, there are several injuries and the cause of the death is hemorrhage and shot caused by the firearms. As per the medical evidence given by PW-13-Dr. YN. Singh, there are several injuries and the cause of the death is hemorrhage and shot caused by the firearms. Appellant-accused was named in the F.I.R. and upon investigation, several statements of witnesses were recorded, charge-sheet was filed and Sessions Case No. 185 of 1995 was registered against this appellant-accused and upon evidence from the trial court, the appellant-accused is convicted for the offence under Section 302 of Indian Penal Code and under Section 307 of Indian Penal Code to be read with Section 34 thereof and is punished as stated hereinabove. (ii) it appears that looking to the submissions made by both the counsel as well as looking to the report of the Superintendent of Jail, Jamui, dated 8th September, 2009, the present appellant-accused is absconding since 7th December. 1998 and has not surrendered yet nor is arrested yet. Thus, appellant-accused is not available to the court at the time of hearing of Criminal Appeal, which is preferred under Section 374(2) of the Code of Criminal Procedure, 1973. (iii) Rule 141 of High Court of Jharkhand Rules, 2001 reads as under:- "141. In an appeal against conviction no application or motion for bail shall be heard for admission L1nless the accused has surrendered to the order of the Court below convicting him to a sentence of imprisonment for a term and an intimation to this effect has been filed except in case where the appellant has been released on bail by the trial court." In view of the aforesaid Rule, no appeal will be heard for admission, unless, the accused has surrendered to the order of the court below convicting him to a sentence of imprisonment. It is submitted by the learned counsel for the appellant-accused that the Rule is applicable at the time of admission only. This contention is not accepted by this Court mainly for the reason that looking to Rule 141 of High Court of Jharkhand Rules, 2001, the same proposition of the law will continue till the final hearing of the criminal appeal. Rule 141 of High Court of Jharkhand Rules, 2001 never permits the appellant-accused to remain absconding and expects, the final hearing of his criminal appeal of conviction. Rule 141 of High Court of Jharkhand Rules, 2001 never permits the appellant-accused to remain absconding and expects, the final hearing of his criminal appeal of conviction. What is applicable at the time of admission process of the criminal appeal also sustains, during the pendency of the criminal appeal and also, it remains applicable at the time of final hearing of the criminal appeal. Thus, appellant-accused, who is absconding cannot expect that his criminal appeal shall be heard, on merits, (iv) Absconding accused has no faith in Justice Delivery System. Hearing of the criminal appeal of an absconding accused, will encourage those, who are in jail, to jump the bailor furlough leave. (v) it has been held by the Division Bench of Hon'ble Patna High Court in the case of Daya Shankar Singh and Another vs. State of Bihar as reported in 2005 Cri. Law Journal 482 [: 2004(4) PLJR 51 ], especially in paragraph nos. 10, 23 and 24, which read as under: "10. The rule which is statutory in nature uses negative language that forbids the hearing of an appeal (for admission) in the absence of intimation of surrender except in case where the appellant has been released on bail by this trial court. It would be futile to argue that the prohibition that applies at the stage of admission would not apply to the hearing of the appeal and once the appeal is admitted. it is open to the appellant to merrily break the iail and escape from custody. .This Court does not have the slightest doubt that the intimation of surrender which is a pre-condition and sine qua non for hearing of the appeal at the stage of admission is equally the pre-condition and sine qua non for hearing of the appeal for its final disposal on merits. The appeal preferred by the appellant Maya Shankar Singh does not comply with the legal requirement and his appeal, therefore, is not fit to be heard, unless the intimation of surrender is filed on his behalf. 23. The appeal preferred by the appellant Maya Shankar Singh does not comply with the legal requirement and his appeal, therefore, is not fit to be heard, unless the intimation of surrender is filed on his behalf. 23. The Court took the view that unless an intimation of his surrender was filed the appeal on his behalf was not competent to be heard on merits on two grounds: one, that his act in escaping from jail, thought his prayers for bail was repeatedly rejected by this Court, was a willful, deliberate and gross violation of the judicial process and it amounted to a defiance of the system of criminal administration of justice and he was, therefore, not entitled to any indulgence from the Court. The second ground was that the appeal on his behalf was not competent to be heard in terms of Rule 8 under Chapter-XII of the Patna High Court Rules, that lays down in mandatory terms that in case the appellant had not been released on bail the appeal could not be heard in the absence of intimation of surrender. Both the aforesaid reasons are discussed in detail in the previous order dated 17.3.2004. 24. On 17.3.2004 the Court allowed Maya Shankar Singh three weeks time to surrender. The case was again called out for hearing on 16.7.2004. From the office note dated 7.4.2004 it appears that no intimation of his surrender was filed within the time allowed by the Court. Today though more• than four months has expired both the counsel appearing for the appellants and the counsel appearing on behalf of the informant informed the Court that Maya Shankar Singh has not cared to surrender. In these circumstances, Criminal Appeal No. 187 of 1998 in so far as it is on behalf of Maya Shankar Singh, appellant NO.2 stands dismissed. It shall now proceed only in respect of appellant NO.1 Daya Shankar Singh who continues to remain in jail" (Emphasis supplied). In view of the aforesaid decision and looking to Rule 141 of High Court of Jharkhand Rules, 2001, it is sine qua non for hearing of the criminal appeal or it is pre-condition pf hearing of the criminal appeal against an order of conviction, on merits, for final disposal that the accused is not absconding and the accused must be available either before the Court or before the jail authorities. . . (vi) it has been held by the Division Bench of the Hon'ble Gujarat High Court in the case of Mahendra Bhogilal Tadvi VS. State of Gujarat as reported in 2009 Cri. Law Journal 1486 especially in paragraph nos. 8(v), 8(vi) and 9, which read as under:-- "8(v) Looking to the tendency of the present appellant to flee away and that the appellant has no faith in justice delivery system, after filing. appeal, deliberately he has ignored the entire system. This appeal deserves to be dismissed only on this ground. The appellant cannot watch the proceedings by remaining underground. Thus, if he is acquitted, it will encourage such absconding accused and if there is conviction, then, he will continue to remain absconding so as to avoid the conviction. In both these situation, the hearing of this Criminal Appeal will encourage those, who are in jail to flee away or jump the bail or furlough leave. We do not want to encourage absconding accused by taking such type of criminal appeal for final hearing on merits and we reiterate that when any accused disrespects the Constitution of India or justice delivery system and also thereby disobeys fundamental duty vested in him. as per Sub-Article (a) of Article 51-A of the Constitution of India. his Criminal Appeal deserves to be dismissed only on this ground. (vi) There are two major circumstances, in which appellant-con-vict is not proceeding with his criminal appeal: (a) due to the ignorance or sickness of the appellant or his lawyer; or (b) due to the fact that accused is absconding. There is a vast difference between these two circumstances. The decisions cited by the learned counsel for the appellant that criminal appeal cannot be dismissed for default, are having their genesis in the ignorance, in conducting any criminal appeal either by appellant himself or by his lawyer. Some times, lawyer remains absent as he is busy with other matter or for other work or some times he is not aware of listing of the criminal appeal or some time he is genuinely sick and if no lawyer is engaged, the appellant, who is not absconding is not engaging the lawyer due to poverty or sickness, etc. Some times, lawyer remains absent as he is busy with other matter or for other work or some times he is not aware of listing of the criminal appeal or some time he is genuinely sick and if no lawyer is engaged, the appellant, who is not absconding is not engaging the lawyer due to poverty or sickness, etc. In all these cases, there is ignorance of the party or a lawyer and in such cases, criminal appeal cannot be dismissed for default and it ought to be heard on its own merits, but, diagonally opposite are the facts of the present case. Accused in the present case is absconding. Deliberately. he has not surrendered after period of 45 days from 22nd October, 2000, i.e. period for which, the sentence was suspended under Section 389 of the Code of Criminal Procedure. Thus deliberate action or positive action reveals the intention of the appellant which shows that he has no respect to the Constitution of India and he has committed breach of the fundamental duty enshrined under Sub-, Article (a) of Article 51-A of the Constitution of India or it also reveals intention of the appellant that he has not faith in justice delivery system. On one hand, he remains absconding and on other hand, he expects that his appeal ought to be disposed of on its merits. Those who are expecting their criminal appeals against conviction to b& heard on merits cannot remain absconding. Therefore, the judgments cited by learned counsel for the appellant that criminal appeal cannot be dismissed for default are not helpful, looking to the peculiar facts of the present case. 9. We are conscious that the accused has remained in jail for approximately considerable length of period of conviction, but, it is no~ a ground for absconding accused that his criminal appeal ought to be heard on merits, even if he is absconding. The appellant cannot expect that if the criminal appeal is not heard for longer time, he can jump the bail and furlough and get result on merits in his criminal appeal against conviction. Such practice, of convict ought to be deprecated. The appellant cannot expect that if the criminal appeal is not heard for longer time, he can jump the bail and furlough and get result on merits in his criminal appeal against conviction. Such practice, of convict ought to be deprecated. Suffice it to say that his criminal appeal is hereby dismissed only on the ground that the present appellant is absconding." (Emphasis supplied) In view of the aforesaid decision also, there are two major circumstances, in which the appellant-convict is not proceeding with his criminal appeal. In first type of cases, mainly due to ignorance or sickness of the appellant or his lawyer or when the lawyer is busy with other matters and, in second type of cases, due to the fact that appellant convict accused is absconding. The cases covered by the first type cannot be dismissed for default because of the sickness of a lawyer or as the lawyer of the appellant is busy with other matter or when the lawyer of the appellant is not aware of the listing of the criminal appeal or where lawyer could not be engaged by the appellant because of poverty and in all such types of cases appellant ought to have been heard on merits whereas there is vast difference in the second category of cases. In second category of cases. where the appellant-accused is absconding though he is convicted by the trial court his appeal cannot be heard by the court unless and until he is surrendering to the court or to the jail authority or unless and until. he is arrested by the police. We do not want to encourage the absconding accused by hearing his conviction appeal under Section 374(2) of the Code of Criminal Procedure, on merits. Thus who are absconding-accused after conviction must know that their criminal appeals must be dismissed for default. They cannot enjoy violation of law and decision on merits, upon their criminal appeal. Looking to Article 51-A(a) of the Constitution of India, it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem. They cannot enjoy violation of law and decision on merits, upon their criminal appeal. Looking to Article 51-A(a) of the Constitution of India, it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem. Article 51A(a) of the Constitution of India, reads as under:- "51-A(a) to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem;" (Emphasis supplied) In view of this fundamental duty, also, it appears to us that present appellant accused has no respect for the Constitutional Institutions. High Court is Constitutional Institution. The appellant-accused has no faith in Justice Delivery System and, therefore, looking to:- (a) Rule 141 of High Court of Jharkhand Rules, 2001; (b) a decision rendered by the Division Bench of Hon'ble Patna High Court as reported in 2005 Cri. Law Journal 482: (c) a decision rendered by the Division Bench of Hon'ble Gujarat High. Court as reported in 2009 Cri. Law Journal 1486: and (d) Article 51-A(a) of the Constitution of India; we are not inclined to hear the present criminal appeal, on merits and it is dismissed for default. It is rightly submitted by learned A.P.P. that similar is the'provision in sub-section (3) of Section 85 of the Code of Criminal Procedure, 1973 that when the property of an absconding accused is seized, it cannot be released or restored to the accused unless, he appears before the Court or surrenders before the jail authority. We are dismissing, this appeal only on the ground that the appellant is absconding and is not available to the Court, nor he is present in the Court or nor in jail. As and when the appellant accused surrenders or is arrested by police he may prefer an application for restoration of this criminal appeal. Only upon surrendering of the appellant-accused or upon his arrest by police, his appeal can be heard, on merits, if they prefer an application for restoration of the dismissed criminal appeal. As and when the appellant accused surrenders or is arrested by police he may prefer an application for restoration of this criminal appeal. Only upon surrendering of the appellant-accused or upon his arrest by police, his appeal can be heard, on merits, if they prefer an application for restoration of the dismissed criminal appeal. We left question open, what will happen after unreasonably excessive lapse of period, such restoration application is preferred, but, normally such criminal appeal should be restored upon preferring an application for restoration after the surrender or arrest of accused, but, that depends upon the facts and circumstances of the case and the said question is left open for the decision based upon the facts of each case. 5. We, hereby, direct the Registry of this Court to send a copy of this decision to the Secretary, Department of Home, Government of Jharkhand, Ranchi, who will circulate this order to the Inspector General of Prison, Jharkhand, as well as all the Superintendents of Jail, so as to inform this Court that how many criminal appeals have been preferred by the convict, who are absconding from jail. We direct the Secretary, Department of Home, Government of Jharkhand, to send the information, as early as possible, so that we can get the information earliest. 6. This criminal appeal is dismissed for default.