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2023 DIGILAW 270 (UTT)

Jalaluddin v. State of Uttarakhand

2023-04-10

RAVINDRA MAITHANI

body2023
JUDGMENT : Ravindra Maithani, J. The present revision has already been decided on 13.02.2023. Now, a Recall Application No. 3508 of 2023 has been filed by the revisionist. 2. Heard learned counsel for the parties and perused the record. 3. Learned counsel for the revisionist would submit that on the date of hearing, learned counsel for the revisionist could not appear due to some personal reasons as he was to attend the cremation of his cousin. A litigant should not suffer due to any act or omission of his counsel, therefore, the order deserves to be recalled. It is also submitted that thematter may be heard and the order may be passed thereafter. Learned counsel would also submit that in the process of filing the recall application, there is seven days’ delay, which is bona fide. 4. Having heard, the Delay Condonation Application No. 3509 of 2023 is allowed. Delay in filing the recall application is condoned. 5. In support of his contention, learned counsel for the revisionist has placed reliance on the principle of law, as laid down by the Hon’ble Supreme Court, in the case of K.S. Panduranga vs. State of Karnataka, (2013) 3 SCC 721 and Christopher Raj Vs. K. Vijayakumar, (2019) 7 SCC 398 . 6. In the case of K.S. Panduranga (supra), learned counsel has referred to paras 26 and 32 of the judgment, which are as hereunder:- “26. Regard being had to the principles pertaining to binding precedent, there is no trace of doubt that the principle laid down in Mohd. Sukur Ali [ (2011) 4 SCC 729 : (2011) 2 SCC (Cri) 481] by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh [ (1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439 ]. It, in fact, is in direct conflict with the ratio laid down in Bani Singh [ (1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439 ] . As far as the observation to the effect that the court should have appointed amicus curiae, is in a different realm. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. With great respect, we are disposed to think, had the decision in Bani Singh [ (1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439 ] been brought to the notice of the learned Judges, the view would have been different. 32. In view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali [ (2011) 4 SCC 729 : (2011) 2 SCC (Cri) 481] to the effect that the court cannot decide a criminal appeal in the absence of the counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh [ (1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439 ], is per incuriam. We may hasten to clarify that barring the said aspect, we do not intend to say anything on the said judgment as far as engagement of amicus curiae or the decision rendered regard being had to the obtaining factual matrix therein or the role of the Bar Association or the lawyers. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance. That apart, it is noticeable that after the judgment was dictated in open court, the counsel appeared and he was allowed to put forth his submissions and the same have been dealt with.” 7. Learned counsel would submit that, in fact, the absence of the learned counsel for the revisionist on 13.02.2023 was not deliberate. That apart, it is noticeable that after the judgment was dictated in open court, the counsel appeared and he was allowed to put forth his submissions and the same have been dealt with.” 7. Learned counsel would submit that, in fact, the absence of the learned counsel for the revisionist on 13.02.2023 was not deliberate. It was some personal urgency of learned counsel for the revisionist that he could appear on that date. It is also argued that in the case of K.S. Panduranga (supra,) the factual aspect was different. In fact, learned counsel for the revisionist has been heard in that case. 8. In the case of Christopher Raj (supra), reference has been made to para 9, which is hereunder:- “9. In the result, the impugned orders of the High Court in Crl.A. (MD) No. 608 of 2007 dated 06.07.2018 and 23.06.2018 are set aside and these appeals are allowed and the Criminal Appeal (MD) No. 608 of 2007 shall stand restored. The matter is remitted to the Madurai Bench of Madras High Court to consider the matter afresh. The appellant shall appear before the Madurai Bench of the Madras High Court on 26.08.2019. The High Court shall issue notice to the respondent-complainant viz. K. Vijayakumar informing him about the date of hearing.” 9. Instant revision was admitted on 05.03.2012. On the date of hearing on 03.09.2020, the revisionist absented himself. Again 04.09.2020, the revisionist was not present, therefore, Non Bailable Warrants were issued against him. On 05.10.2020, on behalf of the revisionist, bail application was moved and he was granted bail. 10. A criminal revision, which cannot be dismissed in non prosecution. It has to be decided on merits. 11. Again 04.09.2020, the revisionist was not present, therefore, Non Bailable Warrants were issued against him. On 05.10.2020, on behalf of the revisionist, bail application was moved and he was granted bail. 10. A criminal revision, which cannot be dismissed in non prosecution. It has to be decided on merits. 11. In the case of Pranab Kumar Mitra vs. State of West Bengal and another, AIR 1959 Supreme Court 144, the Hon’ble Supreme Court has categorically held that “whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in Court by a legal practitioner.” Similar view has been taken by the Hon’ble Supreme Court in the case of Madan Lal Kapoor vs. Rajiv Thapar and others (2007) 7 SCC 623 . 12. In the case of K.S. Panduranga (supra) the Hon’ble Supreme Court has taken note of earlier decision in the matter. In fact, in para 19 of the judgment the Hon’ble Supreme Court has culled up the principles, as laid down in the case of Bani Singh and others vs. State of U.P., (1996) 4 SCC 720 , it is as hereunder_ “19. From the aforesaid decision in Bani Singh [ (1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439 ], 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 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 appellant-accused 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.” 13. As quoted hereinabove, in para 32 of the judgment, in the case of K.S. Panduranga (supra), the Hon’ble Supreme Court has not upheld the principle of law, as laid down in the case of Mohd. Sukur Ali vs. State of Assam (2011) 4 SCC 729 , wherein it was directed that in the case of absence of the revisionist or his counsel the Court should appoint another Amicus Curiae to defend the accused. 14. Instant is a case of the rash and negligent driving and death for that reason. The Court has taken note of the statement of the witnesses examined in the trial court and has discussed in detail the version of the revisionist. The Court had noted that the stage of his examination under Section 251 of the Code of Criminal Procedure, 1973 (“the Code”), the revisionist took a plea that the accident took place due to failure of break, but when examined under Section 313 of the Code, according to the revisionist, the accident took place due to breaking of Kamanis. In para 25 of the judgment dated 13.02.2023, this Court observed that “the statement of the witnesses as discussed hereinabove categorically reveals that revisionist lost control of the vehicle when he was trying the vehicle uphill. The vehicle moved towards back and the revisionist did not even tried control it. He jumped from the vehicle. It is he, who alone was not injured.” 15. The vehicle moved towards back and the revisionist did not even tried control it. He jumped from the vehicle. It is he, who alone was not injured.” 15. In the case of Christopher Raj (supra), although the Hon’ble Supreme Court has also observed that in a criminal appeal if the appellant does not appear, the Court should issue a second notice or some Amicus Curiae may be appointed. The fact remains that in the case of Christopher Raj and the principle laid down in the case of K.S. Panduranga (supra) has not been considered. 16. This Court did not dismiss the revision for non appearance of the learned counsel for the revisionist. Learned counsel for the revisionist may have genuine reasons for his non appearance on that date. But, that alone may not be a ground to recall the order. The Court has decided revision on merits after examining the evidence and considering the plea taken by the revisionist. Therefore, there is no reason to recall the order 13.02.2023. The recall application deserves to be rejected. 17. The recall application is rejected.