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2024 DIGILAW 480 (UTT)

Mohd. Haseen v. State of Uttarakhand

2024-07-11

RAVINDRA MAITHANI

body2024
JUDGMENT : (Ravindra Maithani, J.) : The challenge in this revision is made to the order dated 15.04.2024, passed in Criminal Appeal No. 38 of 2023, Mohd. Haseen Vs. State of Uttarakhand and others (“the appeal”), by the court of Additional Sessions Judge, Khatima, District Udham Singh Nagar, by which, the criminal appeal filed by the revisionist has been dismissed in non prosecution. 2. Heard learned counsel for the parties and perused the record. 3. The revisionist has been convicted under Section 138 of the Negotiable Instruments Act, 1881 by judgment and order dated 07.08.2023, passed in Criminal Case No. 1039 of 2019, Mohd. Yameen Vs. Mohd Haseen, by the court of Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar (“the case”) and has been sentenced to undergo rigorous imprisonment for a period of six months with a fine of Rs.2,50,000/- and in default of payment of fine, to undergo simple imprisonment for further period of two months. The revisionist challenged it in the appeal, which was dismissed in non prosecution by the impugned order. 4. Learned counsel for the revisionist would submit that a criminal appeal cannot be dismissed in non prosecution. He would submit that the criminal appeal had already been admitted by the appellate court on 29.08.2023. In support of his contention, learned counsel has placed reliance, upon the principles of law, as laid down in the case of Bani Singh and others Vs. State of U.P., (1996) 4SCC 720. 5. In the case of Bani Singh (supra), the Hon’ble Supreme Court observed that “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.” 6. After discussing the law in the case of Bani Singh (supra), the Hon’ble Supreme Court observed that “we are of the view that the High Court erred in dismissing the appeal for non-prosecution simpliciter without examining the merits.” 7. Learned State counsel would submit that the appeal ought to have been decided on merits. 8. The principles of law, as laid down in the case of Bani Singh (supra) has been followed in the case of K.S. Panduranga Vs. Learned State counsel would submit that the appeal ought to have been decided on merits. 8. The principles of law, as laid down in the case of Bani Singh (supra) has been followed in the case of K.S. Panduranga Vs. State of Karnataka, (2013) 3 SCC 721 and in para 19 of it, the Hon’ble Supreme Court culled out the principles, as laid down in the case of Bani Singh (supra) as follows:- “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 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.” 9. The criminal appeal once admitted cannot be dismissed in non prosecution. It has to be decided in accordance with law and in view of the directions of the Hon’ble Supreme Court. 10. In the instant case, by the impugned order, the appeal preferred by the revisionist has been dismissed in non prosecution. This order cannot be upheld. Therefore, while setting aside the impugned order, the matter may be remanded back to the appellate court to decide the matter, afresh, in accordance with law. 11. The revision is allowed. 12. The impugned order dated 15.04.2024 is set aside. 13. The matter is remanded back to the appellate court to decide the appeal afresh, in accordance with law.