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2016 DIGILAW 278 (UTT)

Hanifa Begum v. State of Uttarakhand

2016-06-29

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present criminal revision, the revisionist seeks to set aside the judgment and order dated 08.06.2016, passed by Sessions Judge, Pauri Garhwal in criminal appeal no. 21 of 2014, Hanifa Begum vs. Surendra Kumar. 2. The order impugned was passed by Sessions Judge, Pauri Garhwal, and the same is being reproduced here-in-below for convenience: “Case called out again and again. None is present for the appellant. Sri K.P. Bamrara, Advocate is present for the respondent no. 1. Sri Awnish Negi, D.G.C. (criminal) is present for the State. Since none is present on behalf of appellant. As such, this criminal appeal is being dismissed for want of non-prosecution. Lower Court record be sent bank with a copy of this order. File be consigned to record room.” 3. It is settled law of the land that a criminal appeal cannot be dismissed in the absence of appellant or learned counsel for the appellant. Hon’ble Apex Court has held in paragraph 7 of the judgment rendered by it in the case of Kishan Singh vs. State of U.P., (1996) 9 SCC 372 , as under: “7. It will be seen that the very opening words of the Section require the Appellate Court to examine the petition of appeal and copy of the impugned judgment in considering whether there is any sufficient ground for interfering with the same. Sub-section (2) provides that the Court may call for the records of the case even at the preliminary stage. It is, thus clear, that the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily is not dependent on the appellant or his counsel appearing before the Court to press the appeal. As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily. As soon as a petition of appeal is presented under Section 382 or 383 it becomes the duty of the appellate court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily. In a case where the appellant has been sentenced to imprisonment and he is not in custody when the appeal is taken up for preliminary hearing, the Appellate Court can require him to surrender, and if the appellant fails to obey the direction, other considerations may arise, which may render the appeal liable to be dismissed without consideration of the merits, but that is altogether a different matter with which we are not concerned in the present case. Here, the appellant's advocate was not present to argue the appeal when the case was called out and in the restoration application filed subsequently, attempt was made to explain the default, which, of course, did not succeed. The question is, whether in the circumstances, the High Court could have dismissed the appeal for default, and if not, whether the prayer for restoration should have been allowed. As is manifest from the provisions of Criminal Procedure Code, referred to above, the High Court should have either examined the appellant's petition of appeal and the judgment under challenge, itself or appointed a counsel to assist the Court, but could not have proceeded to dismiss the same on the ground that the Advocate for the appellant was not present. The position of a criminal appeal is not the same as in a civil appeal governed by the Civil Procedure Code. A comparison of the provisions of Section 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference. Rule 17, Order 41 of Civil Procedure Code in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out, and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non-appearance. In the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure. On the other hand the Code in express terms requires the matter to be considered on merits. In the case of a criminal appeal the corresponding provisions are not to be found in the Code of Criminal Procedure. On the other hand the Code in express terms requires the matter to be considered on merits. Thus a criminal appeal cannot be dismissed for non-prosecution, and this is the reason as to why the Criminal Procedure Code does not contain any special provision like Order 41, Rule 19. The law was correctly laid down in Shyam Deo Pandey & Ors. v State of Bihar, 1971 Suppl. SCR 133, a case governed by the old Criminal Procedure Code. The position in this regard remains the same under the new Code. Even earlier, the High Courts were following this very principle is clear from the observations Emperor v. Balumal Hotchand and Others, (1938) 39 Criminal law Journal 890 and Ramesh Nanu v. State of Gujarat, (1976) 17 Gujarat Law Reporter 350. In Emperor v. Balumal Hotchand and others (supra), it was observed thus: “…that the law requires that before an Appellate Court dismisses and appeal summarily, it shall read a copy of the judgment, and then, if there is no sufficient ground for interfering, it may dismiss the appeal summarily. It was emphasized that the dismissal of the appeal shall depend on the exercise by the judge of his independent and impartial mind after he has read a copy of the judgment, and not upon the failure of the accused to press his appeal.” 4. This Court need not multiply the decisions rendered by Hon’ble Apex Court and by various High Courts, including this High Court, in this regard. 5. Therefore, this Court has no hesitation in coming to the conclusion that the criminal appeal cannot be dismissed in the absence of appellant or learned counsel for the appellant. This Court is, therefore, inclined to allow the criminal revision at the threshold with the consent of learned counsel for the parties. The court does not feel it necessary to issue notice to respondent no. 2 in the peculiar facts and circumstances of the criminal revision. The order impugned dated 08.06.2016, passed by learned Sessions Judge, Pauri, in criminal appeal no. 21 of 2014, Smt. Hanifa Begum vs. Surendra Kumar and others, is hereby set aside. 6. Let copy of the order be supplied to learned counsel for the revisionist today itself on payment of usual charges.