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Himachal Pradesh High Court · body

2016 DIGILAW 1467 (HP)

Tilak Raj Dogra v. Bachitter Kumar

2016-07-22

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. On a complaint filed by the present respondent under the provisions of the Negotiable Instruments Act, 1881, learned trial Court vide its judgment dated 16.01.2014 allowed the same and convicted the petitioner/accused to undergo simple imprisonment for six months and also awarded compensation of Rs. 2,00,000/-. 2. Feeling aggrieved by the said judgment passed by the learned trial Court, the accused preferred an appeal, which was dismissed by the learned Appellate Court vide order dated 06.03.2014 by passing the following order: “06.03.2014 Present: None. Case called, but none appeared on behalf of appellant. It is 11:30 a.m. Put up after lunch. Sd/- Additional Sessions Judge-II, Kangra at Dharamshala 06.03.2014 Present: None. Taken up after lunch, called thrice, but none appeared on behalf of appellant. It is already 2:30 p.m. Hence, present appeal u/s 374(3) Cr.P.C. is dismissed in default. File after its due completion be consigned to record room. Sd/- Additional Sessions Judge-II, Kangra at Dharamshala” 3. Feeling aggrieved by the said order vide which the appeal filed by the accused has been dismissed in default, the accused/petitioner has filed the present revision petition. 4. I have heard the learned counsel for the parties. 5. In my considered view, the order passed by the learned appellate Court vide which it has dismissed the appeal of the present petitioner in default is perverse. A jurisdictional error has been committed by the learned appellate Court by not adjudicating the said appeal on merit and dismissing the same in default. Learned Appellate Court has not taken into consideration the statutory provisions of Sections 384 and 386 of the Code of Criminal Procedure, 1973, as per which, learned appellate Court was duty bound to have had adjudicated the appeal on merit. 6. The Hon’ble Supreme Court in L. Laxmikanta Vs. State (2015) 4 SCC 222 has held that in a criminal case, if no one has put in appearance on behalf of the appellant, then the Court should appoint any lawyer as amicus curiae on behalf of the appellant to argue the appellant’s case instead of proceeding to decide the appeal ex parte on merits. It has further held that the appropriate course for the Court should be to decide the appeal finally on merits to meet such eventuality. 7. The Hon’ble Supreme Court in Surya Baksh Singh Vs. It has further held that the appropriate course for the Court should be to decide the appeal finally on merits to meet such eventuality. 7. The Hon’ble Supreme Court in Surya Baksh Singh Vs. State of Uttar Pradesh (2014) 14 SCC 222 has held:- “6. Section 386 of the CrPC is of importance for the purposes before us. It requires the Appellate Court to peruse the records, and hear the Appellant or his pleader if he appears; thereafter it may dismiss the appeal if it considers that there is insufficient ground for interference. In the case of an appeal from an order of acquittal (State Appeals in curial parlance) it may reverse the order and direct that further inquiry be carried out or that the accused be retried or committed for trial. Even in the case of an appeal from an order of acquittal the Appellate Court is competent to find him guilty and pass sentence on him according to law. The proviso to this Section prescribes that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such a proposal, thereby mandating that an accused must be present and must be heard if an order of acquittal is to be upturned and reversed. It is thus significant, and so we reiterate, that the Legislature has cast an obligation on the Appellate Court to decide an appeal on its merits only in the case of Death References, regardless of whether or not an appeal has been preferred by the convict. 7. Last, but not least in our appreciation of the law, Section 482 of the CrPC stands in solitary splendour. It preserves the inherent power of the High Court. It enunciates that nothing in theCrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary, firstly, to ‘give effect to any order under the CrPC’, words which are not to be found in the Code of Civil Procedure, 1908 (hereafter referred to as ‘CPC’). Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance of its orders. For salutary reason Section 482 makes the criminal Court much more effective and all pervasive than the civil Court insofar as ensuring obedience of its orders is concerned. Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance of its orders. For salutary reason Section 482 makes the criminal Court much more effective and all pervasive than the civil Court insofar as ensuring obedience of its orders is concerned. Secondly, Section 482 clarifies that the CrPC does not circumscribe the actions available to the High Court to prevent abuse of its process, from the inception of proceedings till their culmination. Judicial process includes compelling a respondent to appear before it. When the Court encounters a recalcitrant Appellant/convict who shows negligible interest in prosecuting his appeal, none of the Sections in Chapter XXIX of the CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that passing such orders would eventually make it clear to all that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. Thirdly, none of the provisions of the CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of ‘justice’, suffice it to say that it encompasses not just the rights of the convict, but also of victims of crime as well as of the law abiding section of society who look towards the Courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If convicts can circumvent the consequence of their conviction, peace, tranquility and harmony in society will be reduced to a chimera. Section 482 emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that Section 482 of the CrPC has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal Courts. 8. This Court was called upon to construe Section 423 of the old CrPC (which corresponds to Section 386 of the current CrPC) in the wake of the dismissal by the High Court of an Appeal on the very next date of hearing after the issuance of notice. 8. This Court was called upon to construe Section 423 of the old CrPC (which corresponds to Section 386 of the current CrPC) in the wake of the dismissal by the High Court of an Appeal on the very next date of hearing after the issuance of notice. In Shyam Deo Pandey v. State of Bihar, (1971) 1 SCC 855 : AIR 1971 SC 1606 , the High Court had recorded:- “8….. ‘No one appears to press the appeal. On perusal of the judgment under appeal, I find no merit in the case. It is accordingly dismissed.’ An application for restoration of the appeal filed on the same day was also rejected for not disclosing sufficient grounds for recalling the dismissal orders. The ratio decidendi of this decision is that the records of the lower Court must be available with the Appellate Court if the condition of ‘perusal’ is to stand complied with, and therefore the High Court was found to have erred.” 9. Accordingly, the present revision petition is allowed and order dated 06.03.2014 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala is set aside and the case is remanded back to learned appellate Court with a direction that the appeal filed by the accused be decided on merit on or before 30th September, 2016. Parties are directed through their learned counsel to put in appearance before the learned appellate Court on 1st August, 2016. Petition stands disposed of.