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2020 DIGILAW 40 (JHR)

Md Gabbar, Son Of Late Usman v. State Of Jharkhand

2020-01-09

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The appellant, namely, Md. Gabbar has suffered judgment of conviction under section 376(g) of the Indian Penal Code in S.T. No. 326 of 1999. He has convicted and sentenced to R.I for ten years and fine of Rs.3,000/- under section 376(g) of the Indian Penal Code. 2. By an order dated 24.12.2004, the appellant has been granted bail. On 02.07.2019, when this matter was called out the following order has been passed by this Court: "Mr. Navin Kumar Jaiswal, the learned counsel appears and states that initially this case was filed from the Chamber of Mr. B.M. Tripathy, the learned Senior Counsel, the then Advocate, however, presently they do not have further instructions in the matter. Mr. Mukesh Kumar, the learned A.P.P appears for the State of Jharkhand. Let notice indicating the next date of hearing be served through the officer-in-charge, P.S-Parsudih upon the appellant-Md. Gabbar, son of Late Usman, resident of village-Makadampur Parsudih, P.S-Parsudih, District-Singhbhum (East), Jamshedpur. The Registry is directed to hand over copy of the notice for service upon the appellant to the learned A.P.P, for onward transmission. Additionally, the Registry shall transmit a copy of the order to the Senior Superintendent of Police, Jamshedpur, for compliance. The learned A.P.P shall obtain a report from the concerned Jail Superintendent on period of custody of the appellant. The Registry is directed to serve a complete set of paper-book to the learned A.P.P, if already not supplied. It appears that in Sessions Trial No.326 of 1999 two accused persons namely, Md. Gabbar and Md. Naushad were convicted for the offence punishable under section 376 (g) I.P.C. The Registry shall verify whether accused-Md. Naushad has filed any criminal appeal or not. If he has filed any criminal appeal, that shall be posted along with this criminal appeal on the next date of hearing. Post the matter on 24.07.2019 under the heading "For Orders". Let a copy of the order be given to the learned A.P.P." 3. Thereafter, this criminal appeal has been listed on 24.07.2019, 25.11.2019 and 18.12.2019. 4. By an order dated 25.11.2019, bail granted by this Court to the appellant was cancelled and the investigating officer was directed to take the appellant in custody. On 18.12.2019, Mr. Samavesh Bhanj Deo, the learned counsel was appointed as Amicus. 5. Thereafter, this criminal appeal has been listed on 24.07.2019, 25.11.2019 and 18.12.2019. 4. By an order dated 25.11.2019, bail granted by this Court to the appellant was cancelled and the investigating officer was directed to take the appellant in custody. On 18.12.2019, Mr. Samavesh Bhanj Deo, the learned counsel was appointed as Amicus. 5. However, in the affidavit dated 06.01.2020, the Inspector of Police, Parsudih P.S has stated that steps were taken to apprehend the appellant, raids were conducted and enquiries were made from the neighbours but whereabouts of the appellant could not be found out. It is stated that the SIM card used by the appellant in his mobile phone was deactivated and he has sold the ancestral land. Finally, notices were published in the daily newspapers, such as, Telegraph, Dainik Bhaskar, Prabhat Khabar, Uditwani and Chamakta Aayina. Besides that, a team of four-member special team headed by Dy. S.P. (Law & Order) was constituted to arrest the appellant. 6. The appellant, who has availed of privilege of bail pending hearing of this criminal appeal, has absconded and, therefore, we are not inclined to hear this criminal appeal on merits. 7. In " Mahendra Bhogilal Tadvi Vs. State of Gujarat, (2009) 1 GLR 91 ", a Division Bench of the Hon''ble Gujarat High Court has dismissed the criminal appeal preferred by an absconder without hearing him on merits. 8. In " Surya Baksh Singh Vs. State of U.P., (2014) 14 SCC 222 ", the Hon''ble Supreme Court has observed as under: 16. "We cannot close our eyes to the reality that less than twenty per cent of prosecutions are successful; the rest are futile largely because of inept, shoddy or substandard investigation and prosecution. Even in cases where the prosecution succeeds in proving the guilt of the accused, punishment is emasculated by convicts not because of their succeeding in having their conviction overturned and reversed by the appellate court, but by going underground and disappearing from society after receiving reprieve from incarceration from the appellate court. We are convinced that the interests of society at large are being repeatedly sacrificed for the exaggerated, if not misplaced concern for what is fashionably termed as "human rights" of convicts. Recent judgments of the Court contain a perceptible dilution of legal principles such as the right of silence of the accused. We are convinced that the interests of society at large are being repeatedly sacrificed for the exaggerated, if not misplaced concern for what is fashionably termed as "human rights" of convicts. Recent judgments of the Court contain a perceptible dilution of legal principles such as the right of silence of the accused. The Supreme Court has, in several cases, departed from this rule in enunciating, inter alia, that the accused are duty-bound to give a valid explanation of facts within their specific and personal knowledge in order to dispel doubts on their complicity. Even half a century ago this would have been a jural anathema. Given the woeful success rate of the prosecution, if even the relatively niggard number of convicts are permitted to circumvent their sentences, crime is certain to envelop society. Law is dynamic and not immutable or static. It constantly adapts itself to critically changing compulsions of society. 17. The criminal justice delivery system is being held to ransom by convicts who have developed the devious and dishonest practice of escaping punishment or sentence by filing appeals, obtaining bail or suspension of sentence and thereafter disappearing beyond the reach of the arms of the law. The inherent powers under Section 482 CrPC, which the Supreme Court has on several occasions expounded to have existed from time immemorial, predating the present as well as the previous CrPC, must be pressed into action lest the already fragile policing and prosecuting branches of governance are rendered redundant. Since Section 482 CrPC was not considered by either of the three-Judge Benches of this Court, we have not found it necessary to resort to recommending the matter for being laid before a larger Bench. The facts and pronouncement in Bani Singh cannot be extrapolated to the factual matrix before us. On the contrary the opinion in Ram Naresh Yadav as well as in Kishan Singh are available to us to ensure that preventive action is devised to combat the abuse of court process so that facilitative steps are taken to secure the ends of justice. ........................................................................................... ........................................................................................... 25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. ........................................................................................... ........................................................................................... 25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the spectacle of the convict circumventing his conviction. (See Stirland v. Director of Public Prosecutions, quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh.) If the court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 CrPC, can also be pressed into service but with care, caution and circumspection." 9. Normally, a criminal appeal in which the appellant is not represented by his counsel is not dismissed in default, but the fact-situation in the present case is entirely different; the appellant is an absconder. 10. In view of the judgment in "Surya Baksh Singh Vs. State of U.P." (supra), we are not inclined to hear this criminal appeal on merits and, accordingly, Criminal Appeal (DB) No. 96 of 2002 is dismissed in default. However, if the appellant is apprehended or surrenders before the court concerned, he may move an application for restoration of this criminal appeal which application, of course, shall be decided on its own merits. 11. The short synopsis and notes prepared by the learned Amicus shall be kept on record. 12. We appreciate the assistance rendered by Mr. Samavesh Bhanj Deo, the learned Amicus. 13. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). 14. Let the lower-court records be transmitted to the court concerned, forthwith.