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2009 DIGILAW 1729 (BOM)

Dilip s/o Harinarayan Nigam v. Prakash B. Bende

2009-12-15

S.S.SHINDE

body2009
Judgment : 1. Rule. Rule returnable forthwith. Heard finally by consent of the parties. 2. This application raises short point that whether the Court below could have disposed of the appeal filed by the applicant herein for default in depositing the amount relying on the judgment of the Hon’ble Apex Court in the case of Ram Naresh Yadav and others .vs.. State of Bihar; AIR 1987 Supreme Court 1500? 3. Learned counsel for the applicant, in support of his contention, placed reliance on judgment of the Hon’ble Apex Court in Bani Singh and others ..vs.. State of U.P. AIR 1996 Supreme Court 2439 and more particularly paras 14 and 15 of the said judgment. On the basis of para 14 and 15, learned counsel would submit that it is impermissible to dismiss the appeal for default unless the exercise to dispose of appeal on merits is undertaken. 4. Learned counsel for non applicant submitted that the conduct of the applicant/accused may be taken into consideration. Repeatedly he had sought adjournment before the Court below and made default to deposit the amount though sufficient time was given to the accused to deposit the same. Learned counsel further submitted that costs may be awarded to non applicant for unnecessarily dragging the non applicant in further litigation by applicant before this Court for no fault of him. Learned counsel further submitted that in case this Court is inclined to allow this application the appellate Court may be directed to dispose of the appeal within stipulated time. 5. I have heard learned counsel for the parties. I have also perused the judgment in Bani Singh and others supra. On perusal of said judgment, by which the earlier judgment of Apex Court in Ram Naresh Yadav and others has been overruled and the Hon’ble Apex Court in para 14 and 15 has observed 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. 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. 285-386 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, no 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’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. 15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and 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. 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 S.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 S. 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 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 Ss. 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’s case ( AIR 1987 SC 1500 ) did not apply the provisions of Ss. We are, therefore, of the opinion and we say so with respect that the Division Bench which decided Ram Naresh Yadav’s case ( AIR 1987 SC 1500 ) did not apply the provisions of Ss. 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.” Therefore, what follows from paras 14 and 15 of the judgment is that the Court cannot dismiss the appeal for non prosecution simpliciter. The Court has to dispose of appeals on merits after perusal and scrutiny of record even in absence of the appellant or counsel for the appellant. Therefore, this application deserves to be allowed. 6. Though, counsel for non applicant has prayed for costs, in the facts and circumstances of the case, I feel it would not be appropriate to impose any costs on the applicant because the Court below has passed the impugned order relying on the reported judgment of the Hon’ble Apex Court in the case of Ram Naresh Yadav and others supra, which is overruled subsequently by the Hon’ble Apex Court. Therefore, the said prayer is refused. So far as prayer to dispose of the appeal within stipulated period is concerned, prayer is genuine and the applicant can have no objection for the said prayer. 7. In view of above, the application is allowed. Judgment and order dated 05.11.2009 passed by Ad hoc ASJ-2, Nagpur is quashed and set aside. Criminal Appeal No. 29/2009 is restored to its original file. The concerned Court to hear the appeal after giving opportunity of hearing to both the sides and then dispose of the same within three months from today. Rule made absolute in terms of prayer clause (A). Miscellaneous applications, if any pending, stand disposed of.