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2010 DIGILAW 533 (JK)

Sarvjeet Singh v. State

2010-10-20

MOHAMMAD YAQOOB MIR

body2010
1. Appeal, "preferred against the conviction and sentence passed by the Court of Judicial Magistrate, First Class, R.S.Pura as was pending on the file of Additional Sessions’ Judge, Jammu" has been dismissed for want of prosecution in terms of order impugned dated 31st of August’ 2007. 2. The contention of the learned counsel for the petitioner is that Code of Criminal Procedure (for short Cr.P.C) does not provide for dismissal of appeal for want of prosecution, so order impugned passed by the learned Additional Sessions Judge, Jammu is not only irregular but illegal as well. Submission as made remained to be controverted. 3. Basically, the petitioner (accused) having faced the trial before the Court of Judicial Magistrate, First Class, R.S.Pura has been convicted for having committed the offence punishable under Section 304-A R.P.C and sentenced to undergo imprisonment of two years. Aggrieved thereof, appeal came to be filed. It is stated that the sentence was suspended and the petitioner was admitted to bail. 4. During the proceedings before the Court of Additional Sessions Judge, Jammu, the petitioner has remained continuously absent. The wording of the order would indicate that notice had been issued to the appellant to appear and to prosecute the appeal but as per the report received thereon from the police station, the petitioner had shifted out of the State along with his family for the last 3/4 years as on date of the order dated 31st of August’ 2007. It is also opined in the order that appeal is dismissed due to absence of the appellant and bail bond stand cancelled. 5. Learned appellate Court (Additional Sessions Judge, Jammu) has not dealt with the matter in accordance with law. Part VII, Chapter XXXI of Code of Criminal Procedure provides the procedure to be adopted vis-a-vis hearing and disposal of the appeals. Dismissal of the appeal for want of prosecution is not countenanced by the provisions as contained in the said Chapter XXXI. Section 423 Cr.P.C in categoric terms provides that the appellate Court after perusing the record and hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears, if considers that there is no sufficient ground for interference, may dismiss the appeal or may pass such order which include alteration or reversal of the order under appeal. The wording `no sufficient ground’ for interference as employed in sub-Section 1 of Section 423 Cr.P.C suggests that the appeal has to be decided on merits so in any case dismissal of appeal for want of prosecution is not contemplated. 6. Section 426 Cr.P.C provides that pending any appeal by a convicted person, the Court can suspend the execution of the sentence and also can release the accused on bail or on his own bond when the accused is admitted to bail, object of release on bail is to ensure the presence of the accused. In case of default in appearance, forfeiture of bail bond, issuance of non-bailable warrants, resort to Section 87 & 88 of Cr.P.C are modes available. 7. In the instant case, during the pendency of the appeal, the appellant-accused has been admitted to bail so in case of his non appearance, the Court was well within its powers to forfeit the bail bonds and to proceed in accordance with section 514 of Cr.P.C against the surety. At the same time, when the warrant could not be executed due to the abscondance or act of the accused in avoiding execution, then Court should have resorted to action in terms of Section 87 & 88 of Cr.P.C. In addition after perusal of the record and the judgment impugned, decision on merits even in absence of the accused and his counsel in such circumstances was imperative, but not the dismissal in default. 8. The legal position as referred has been totally ignored by the learned Additional Sessions Judge, Jammu. As a result thereof irregular and illegal order impugned dated 31st of August 2007 has been passed, which cannot sustain. 9. For the stated reasons, revision petition is allowed and accordingly, order impugned being irregular and illegal is set aside. 10. Learned Additional Sessions Judge, Jammu shall hear the appeal and thereafter pass appropriate orders on merits as shall be warranted. The appellant shall appear before the appellate Court on 4th of November’ 2010. 11. Revision succeeds and is accordingly disposed of. 12. Copy of the order be sent to the Court of Additional Sessions Judge, Jammu for information.