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2017 DIGILAW 1240 (HP)

Raju v. Tara Chand

2017-11-08

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - Cr.MP(M) No. 1391 of 2017. For the reasons set-out in the application, the delay of 438 days in filing of the revision petition is condoned. Application stands disposed of. Be registered. Cr. Revision No. 326 of 2017. 2. This criminal revision is directed against the order dated 5.8.2016 passed by learned Additional Sessions Judge (I), Mandi, District Mandi, H.P. in Cr. Appeal No. 67/14/13 whereby he dismissed the appeal filed by the petitioner in default. 3. Looking to the nature of order, I propose to pass, it is not at all necessary to deal with the facts in detail. Suffice it to state that the Whether the reporters of the local papers may be allowed to see the Judgment?Yes complainant-respondent filed a complaint against the petitioner under section 138 of the Negotiable Instruments Act (for short ''Act'') which after trial was allowed by the trial Magistrate and the petitioner was ordered to be convicted and sentenced to undergo simple imprisonment for a period of three months and to pay compensation to the tune of Rs. 30,000/- to the complainant within a period of two months. The petitioner filed an appeal assailing the aforesaid conviction and sentence and the same was dismissed in default by the learned Additional Sessions Judge (1), Mandi.H.P. It is thereafter that the petitioner has filed the instant revision petition assailing the aforesaid judgement/order passed by the learned Courts below. 4. The moot question is whether such a recourse was open to the court below. This question need not detain this Court any longer in view of the judgment already passed in case titled as Pankaj Thakur v. State of H.P., reported in 2016 (2) ILR (HP) 1298 , wherein it was held as under: "2. Though the position of law is well settled that a criminal appeal cannot be dismissed in default for non prosecution, yet the learned Court ventured to pass the aforesaid order. 3. In Parasuram Patel and another v. State of Orissa (1994) 4 SCC 664 , it was held by the Hon''ble Supreme Court that the criminal appeal cannot be dismissed for default in appearance and the Court must decide the matter on merit even in the absence of the appellant or his counsel. 4. 3. In Parasuram Patel and another v. State of Orissa (1994) 4 SCC 664 , it was held by the Hon''ble Supreme Court that the criminal appeal cannot be dismissed for default in appearance and the Court must decide the matter on merit even in the absence of the appellant or his counsel. 4. In Bani Singh and others v. State of U.P. (1996) 4 SCC 720 , it was held by the Hon''ble three Judges Bench of the Hon''ble Supreme Court that dismissal of appeal for default or non prosecution without going into merits of the case is illegal. It was further held that that the appellate Court must dispose of the appeal on merits after perusal and scrutiny of the record. It is apt to reproduce paragraphs 14 and 15 of the judgment which read thus:- "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 appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 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 Section 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 Sections 385-386 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, not merely by perusing the reasoning of the trial court in the judgment, but by crosschecking 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 that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution. 15. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav''s case 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 to 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. It will be noticed that Section 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 Section 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 of 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 Sections 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. 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 did not apply the provisions of Sections 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." 5. In K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 , the legal position that the appeal cannot be dismissed for non prosecution simpliciter without examining the merits was reiterated in the following manner :- "15. On a studied perusal of the said decision, it is noticeable that the Court has stated about the role of the lawyer and the role of the Bar Association in the backdrop of professional ethics and norms of the Constitution. It has been categorically held therein that the professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee and the lawyer is not otherwise engaged and, therefore, no Bar Association can pass a resolution to the effect that none of its members will appear for a particular accused whether on the ground that he is a policeman or on the ground that he is a suspected terrorist. We are disposed to think that in Mohd. Sukur Ali (supra), the aforesaid case was cited only to highlight the role of the Bar and the ethicality of the lawyers. It does not flow from the said pronouncement that it is obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment rendered by the High Court would be absolutely unsustainable. 16. At this juncture, it is apt to survey the earlier decisions of this Court in the field. 16. At this juncture, it is apt to survey the earlier decisions of this Court in the field. In Shyam Deo Pandey and others v. The State of Bihar (1971) 1 SCC 855 , a two-Judge Bench of this Court was dealing with a criminal appeal which had arisen from the order of the High Court whereby the High Court, on perusal of the judgment under appeal, had dismissed the criminal appeal challenging the conviction. The Court referred to Section 423 of the Old Code and came to hold that the criminal appeal could not be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal or it should consider the appeal on merits and pass final orders. It is further observed that: (SCC p.861, para 19) "19......The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal is tested in the light of the record of the case." The Court referred to the earlier Section 421 of the Code which dealt with dismissal of an appeal summarily and was different from an appeal that had been admitted and required to be dealt with under Section 423 of the Code. It is worth noting that reliance was placed on Challappa Ramaswami v. State of Maharashtra (1970) 2 SCC 426 wherein reliance was placed on Siddanna Apparao Patil v. State of Maharashtra (1970) 1 SCC 547 and Govinda Kadtuji Kadam v. The State of Maharashtra (1970) 1 SCC 469 . 17. In Ram Naresh Yadav and others v. State of Bihar AIR 1987 SC 1500 , a different note was struck by expressing the view in the following terms: (AIR p.1500, para 2) "2....It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their mattes are decided on merits. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their mattes are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants." 18. In Bani Singh and others v. State of U.P. (1996) 4 SCC 720 , a three-Judge Bench was called upon to decide whether the High Court was justified in dismissing the appeal filed by the accused-appellants therein against the order of conviction and sentence issued by the trial court for non-prosecution. The High Court had referred to the pronouncement in Ram Naresh Yadav (supra) and passed the order. The three-Judge Bench referred to the scheme of the Code, especially, the relevant provisions, namely, Section 384 and opined that since the High Court had already admitted the appeal following the procedure laid down in Section 385 of the Code, Section 384 which enables the High Court to summarily dismiss the appeal was not applicable. The view expressed in Sham Deo''s case (supra) was approved with slight clarification but the judgment in Ram Naresh Yadav''s case (supra) was over-ruled. The three-Judge Bench proceeded to lay down as follows: (Bani Singh case, SCC pp. 726-27, paras 15-16) "15.....It is the duty of 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 Sections 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. 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 Sections 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. 16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant''s presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher Court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted." (Emphasis supplied) 19. From the aforesaid decision in Bani Singh, the principles that can be culled out are: 19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2. From the aforesaid decision in Bani Singh, the principles that can be culled out are: 19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2. That the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; 19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court; 19.5. 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, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 19.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation." 5. That apart, it would be noticed that the matter already stands amicably settled between the parties as respondent No. 1 after having received the full and final payment in question has executed an affidavit wherein it is categorically observed that he has no objection if the petitioner is acquitted. 6. From the records of the case, I find that this is not a case wherein the offence for which the petitioner has been charged can ''stricto sensu'' be termed to be an offence against the State. Therefore, this is a case where the continuation of criminal case against the petitioner would put the petitioner to great oppression and prejudice and extreme injustice would be caused to him by not setting aside the impugned judgments of conviction and sentence. 7. This court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 Cr.P.C., 1973 (hereinafter referred to as the Code) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to sub-serve the ends of justice or/and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc. 8. Further, the moot question is also whether the Court in such like cases can set aside the judgments of conviction and sentence where the petitioner has been charged under Section 138 of the Act. This question need not detain this Court any longer in view of the three Judges'' Bench decision of the Hon''ble Supreme Court in Parbatbhai Aahir @ Parbatbhai and others v. State of Gujarat and another, Criminal Appeal No. 1723 of 2017, decided on 4th October, 2017 , wherein after taking into consideration the entire law on the subject, the Hon''ble Supreme Court has laid down the following broad principles for exercise of powers under Section 482 of the Code which read thus:- "(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; (ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. While compounding an offence, the power of the court is governed by the provisions of section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable. (iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; (iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court; (v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; (vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; (viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; (ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance." 9. As already observed herein, the parties have already reached an amicable settlement and at best it was the complainant/respondent No. 1 who could be said to be affected and aggrieved party, but herein even the affected and aggrieved party i.e. complainant/respondent No. 1 is not interested to pursue the complaint and does not want to hold the petitioner responsible for the offence under the Act. Therefore, quashing of the complaint initiated at the instance of the complainant/respondent No. 1 would be a step towards securing the ends of justice and to prevent abuse of process of the Court. 10. Keeping in mind the aforesaid exposition of law, it is clear that the facts of this case do not in any manner fall within any of the exceptions culled out by the Hon''ble Supreme Court in Parbatbhai Aahir''s case (supra). 11. 10. Keeping in mind the aforesaid exposition of law, it is clear that the facts of this case do not in any manner fall within any of the exceptions culled out by the Hon''ble Supreme Court in Parbatbhai Aahir''s case (supra). 11. Thus, taking holistic view of the matter and further taking into consideration all the attending facts and circumstances as also the law laid down by the Hon''ble Supreme Court in Parbatbhai Aahir''s case (supra), I find this to be a fit case to exercise the powers not only under Sections 397, 401 and Section 482 of the Code, but even under Section 147 of the Act. 12. Even in the given facts and circumstances, particularly, in view of the compromise entered into between the parties, there is no justification for continuation of the proceedings even before the learned Additional Sessions Judge (I), Mandi, therefore, instead of remanding the matter to the said Court, the proceedings are given quietus. 13. In view of the subsequent developments, more particularly, the compromise entered into between the parties, the order dated 5.8.2016 passed by learned Additional Sessions Judge (I) Mandi, H.P. and the judgment dated 14.5.2013/22.7.2013 passed by learned Judicial Magistrate 1st Class, Chachiot at Gohar, District Mandi, H.P. in Case No. 112-I/2012/39-III/2012, are set-aside. Consequently, the petitioner is acquitted of the offence under Section 138 of the Act. The petitioner is ordered to be released forthwith. The Registry is directed to prepare and send the release warrant to the concerned Superintendent Jail. 14. The revision petition is disposed of in the aforesaid terms, so also the pending application(s), if any. 8th November, 2017.