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2012 DIGILAW 1488 (PAT)

Govind Prasad Kanodia v. State of Bihar

2012-10-19

ASHWANI KUMAR SINGH

body2012
ORAL ORDER The Insurance Inspector (Legal), Employees State Insurance Corporation, Patna, instituted a complaint case, being Complaint Case No.2445(M) of 2001, on 10.12.2001, in the court of the learned Chief Judicial Magistrate, Patna, under section 85(g) of the Employees State Insurance Act, 1948 (Act No.34 of 1948 and No.38 of 1975). The learned Chief Judicial Magistrate took cognizance of the offence and made over the case for enquiry and disposal to a court of the learned Magistrate having competent jurisdiction. The learned Magistrate explained the substance of accusation to the petitioner to which he pleaded not guilty and claimed to be tried. Accordingly, the trial was held. On conclusion of trial, Mr.S.K.Mishra, the learned Judicial Magistrate, 1st Class, Patna, by his judgment and order dated 23.12.2005 convicted the petitioner for the offence under section 85(g) of the Employees State Insurance Act, 1948 and sentenced him to undergo six month’s simple imprisonment and to pay a fine of Rs.3,000/- (three thousand) and in default of payment of fine to suffer further simple imprisonment for one month. 2. The petitioner, being aggrieved by the aforesaid judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Patna, preferred Cr.Appeal No. 21 of 2006 before the learned Sessions Judge, Patna. The said criminal appeal was heard by the learned Additional District and Sessions Judge, F.T.C.-V, Patna. The appellate court dismissed the appeal preferred by the petitioner and upheld the impugned judgment passed by the trial court by its judgment dated 26.5.2010. 3. The petitioner has filed the present writ petition for setting aside the aforesaid judgment dated 26.5.2010 passed by the learned Additional District and Sessions Judge, F.T.C.-V, Patna in Cr.Appeal No. 21 of 2006, by which, the appellate court has upheld the conviction and sentence awarded against the petitioner by the trial court. The office pointed out a defect that the petition appears to be not maintainable under the writ jurisdiction and the same may be converted into criminal revision under sections 397 and 401 of the Code of Criminal Procedure. Since the petitioner did not agree with the defect pointed out by the office, the matter was placed before the Bench under the heading “For Orders (On Office Notes”). Since the petitioner did not agree with the defect pointed out by the office, the matter was placed before the Bench under the heading “For Orders (On Office Notes”). When the matter was taken up on 16.10.2012 the case was ordered to be listed under the heading “For Admission I” and the question of maintainability of the writ petition was ordered to be considered at the stage of admission. 4. Mr. N.K.Agrawal, learned Senior counsel appearing on behalf of the petitioner, submits that there is no dispute with the proposition of law that in normal circumstance against a judgment by which the conviction and sentence awarded by the trial court is upheld by the appellate court, a revision would lie before this Court under Sections 397 and 401 of the Code of Criminal Procedure but, in a case, where admittedly, counsel for the appellant (accused) does not appear for one reason or another, and the appellate court decides the appeal against the appellant (accused) in absence of his counsel, a writ petition under Articles 226 and 227 of the Constitution of India would be maintainable. Learned Senior counsel refers to paragraph 5 of the impugned judgment passed in Cr.Appeal No. 21 of 2006 in order to show that on the date of hearing of the appeal none had appeared to defend the petitioner. Paragraph-5 of the judgment of the appellate court reads as under: “None appeared for the accused-appellant to argue the appeal on his behalf. Sri K.K.Tiwari, Advocate, who appeared on behalf of the respondents nos. 2 and 3, was heard. He has supported the impugned judgment and order of conviction and sentence arguing that the offence, for which the accused-appellant has been convicted, has been proved beyond reasonable doubts and the sentence imposed on him in not severe, and thus, according to him, there is no scope of any interference with the impugned conviction and sentence.” 6. He submits that apparently when the matter was heard before the appellate court, counsel for the petitioner did not appear. According to him, in a criminal case an accused should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. He submits that apparently when the matter was heard before the appellate court, counsel for the petitioner did not appear. According to him, in a criminal case an accused should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. If a criminal case against a judgment of conviction and order of sentence would be decided without hearing the counsel for the appellant (accused), the same would not only be violative of principles of natural justice but also violative of Article 21 of the Constitution which guarantees the protection of life and personal liberty to a citizen. He places reliance in this regard on a decision given by the Hon’ble Supreme Court in case of Mohd. Sukur Ali V State of Assam since reported in (2011) 4 SCC 729 . In that case, a criminal appeal was decided by the Gauhati High Court in absence of a counsel for the appellant (accused) and the conviction was upheld. The judgment of the High Court was challenged before the Hon’ble Supreme Court in appeal. The question before the Hon’ble Supreme Court was “whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or should the court appoint an amicus curiae to defend the accused?” The Hon’ble Supreme Court after hearing the parties, in paragraphs 5, 16 and 17 held as under : “5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel’s negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and persons liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be “heart and soul” of the fundamental rights. 16. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and persons liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be “heart and soul” of the fundamental rights. 16. For the reasons stated above, we allow this appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr.Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side. The case shall be heard by a Bench of Judges other than those who passed the impugned judgment. The order dated 24.1.2011 passed by this Court granting bail to the appellant shall continue till the appeal is decided by the High Court. 17. We reiterate that in the absence of a counsel for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practicing on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. If on the next date of hearing, the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the court may proceed with the hearing of the case by the counsel appointed as amicus curiae.” 7. Learned senior counsel appearing on behalf of the petitioner placing his reliance upon the judgment of the Hon’ble Apex Court rendered in Mohd. But, in such a situation, it is open to the accused to either engage another counsel or the court may proceed with the hearing of the case by the counsel appointed as amicus curiae.” 7. Learned senior counsel appearing on behalf of the petitioner placing his reliance upon the judgment of the Hon’ble Apex Court rendered in Mohd. Sukur Ali V State of Assam (supra) submits that in a case where the admitted position would be that the appeal against conviction has been decided in absence of the counsel against the accused, the same would certainly be violative of Article 21 of the Constitution and once a judgment or order is passed by a Court which is violative of Article 21 of Constitution, a writ under Articles 226 and 227 of the Constitution preferred for setting aside such judgment and order would be maintainable in law. 8. Since the issue raised by the petitioner is of considerable importance, Sri Lalit Kishor, learned AAG-I, was requested to assist the court on behalf of the State. Sri Lalit Kishor, learned senior counsel (AAG I), appearing on behalf of the State does not dispute the point raised by the petitioner in view of the law laid down by the Hon’ble Supreme Court. He does not dispute even the factual aspect by which the petitioner contends that the criminal appeal has been heard and decided against the petitioner in absence of his counsel. He fairly submits that apart from the writ jurisdiction of this court under Article 226 of the Constitution, power of superintendence is conferred upon this court by Article 227 of the Constitution and under Article 227 this Court can interfere in case of violation of principles of natural justice or a patent or flagrant error in procedure or order resulting in manifest injustice. According to him the power under this Article is not subject to those technicalities of procedure. 9. Article 21 of the Constitution declares that no person shall be deprived of his “life” or “personal liberty” except according to the procedure established by law. 10. Considering the facts and circumstances of the case and the law laid down and reiterated by the Hon’ble Supreme Court in the case of Mohd. Sukur Ali V State of Assam (supra), I find force in the submissions made on behalf of the petitioner. 10. Considering the facts and circumstances of the case and the law laid down and reiterated by the Hon’ble Supreme Court in the case of Mohd. Sukur Ali V State of Assam (supra), I find force in the submissions made on behalf of the petitioner. Once the Hon’ble Supreme Court has held that in the absence of a counsel, for whatever reason, the case should not be decided forthwith but in such a situation the court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case, it is not open for the appellate court to decide the appeal in absence of the counsel for the petitioner without appointing amicus curiae to defend his case. By virtue of Article 141 of the Constitution, what the Supreme Court lays down is the law of the land. Its decisions are binding on all courts. The decision of the Supreme Court upon a question of law is considered to be a binding precedent. In case of the petitioner, if the duly appointed counsel did not appear, the appellate court ought to have appointed a counsel practising on criminal side as amicus curiae and only after hearing him, it would have decided the case. 11. It is well settled that the power of “superintendence” conferred upon the High Court by Article 227 is not confined to administrative “superintendence” only, but includes the power of judicial revision also. Even where no appeal or revision lies to the High Court under ordinary law, this Court can exercise its power of “superintendence” under Article 227 of the Constitution. This power can be exercised even suo motu. This power involves a duty on the High Court to keep the subordinate courts within the bounds of their authority and to see that they do what their duty requires and that they do in a legal manner. It is true that the power should be restricted to cases of grave and flagrant abuse of fundamental principles of law and justice. 12. In my view, under Article 227 of the Constitution, this Court can certainly interfere in case of violation of principles of natural justice or patent or flagrant error in procedure or order resulting in manifest injustice. It is true that the power should be restricted to cases of grave and flagrant abuse of fundamental principles of law and justice. 12. In my view, under Article 227 of the Constitution, this Court can certainly interfere in case of violation of principles of natural justice or patent or flagrant error in procedure or order resulting in manifest injustice. The remedy of the writ petition available to the petitioner is not against the “decision: of the subordinate court but it is against the “decision making process”. In the “decision making process” if the court in deciding the case, has ignored the right of a convicted appellant to be heard and thereby arrived at a conclusion, the constitutional power of this Court under Articles 226 and 227 of the Constitution can be invoked to set right such power and prevent gross injustice to the party complaining. 13. In the present case, from the facts discussed hereinabove, there is no dispute that the appeal of the petitioner was heard and decided in absence of his counsel. There was none to defend his case. It is well settled that an appeal against a judgment of conviction should not be decided against the accused in absence of a counsel. In that view of the matter, I hold that the present writ petition under Articles 226 and 227 of the Constitution is maintainable in law. 14. For the reasons assigned hereinabove, I allow the present writ petition, set aside the judgment and order dated 26.5.2010 passed in Cr.Appeal No. 21 of 2006 by the learned Additional Sessions Judge, FTC V, Patna and remand the matter to the appellate court for a fresh decision after hearing the counsel for the appellant. In case pursuant to remand, if no lawyer appears to represent the appellant, the appellate court would appoint an amicus curiae, being a lawyer practising on criminal side and decide the case only after hearing him. 15. In the meantime, during the pendency of the appeal, the appellant would continue on bail granted to him earlier by the court below. 16. However, this order should not be construed as a license to the accused to challenge the judgment and order passed in appeal against conviction in a writ jurisdiction under Articles 226 and 227 of the Constitution. 17. 16. However, this order should not be construed as a license to the accused to challenge the judgment and order passed in appeal against conviction in a writ jurisdiction under Articles 226 and 227 of the Constitution. 17. It is made clear that in case an appeal arising from conviction is heard and decided by the appellate court after hearing the counsel for the accused or the counsel appointed as amicus curiae to defend the accused and the accused is aggrieved by the judgment of the appellate court, a writ under Articles 226 and 227 of the Constitution would not lie before this Court. In that circumstance, the only remedy available to the accused would be revision under Sections 397 and 401 of the Code of Criminal procedure.