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TMI Blog2015 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and cannot be faulted on the approach adopted by it. Appellant granted opportunity to argue the Appeal on its merits. - CRIMINAL APPEAL NO. 1680 OF 2013 - - - Dated:- 7-10-2013 - T.S. THAKUR VIKRAMAJIT SEN JJ. JUDGMENT VIKRAMAJIT SEN, J. 1. This appeal brings to the fore the rampant manipulation and misuse of the statutory right to appeal by an ever increasing number of convicts who take recourse to this remedy with the objective of defeating the ends of justice by obtaining orders of bail or exemption from surrender, and thereupon escape beyond the reach of the law. Jural compulsions now dictate that this species of appeals should be consciously dismissed on the ground of occasioning a gross abuse of the judicial process and an annihilation of justice. The need to punish every transgressor of the law is ubiquitously accepted in all legal persuasions throughout the ages. Kautilya s Arthasastra opines that - By not punishing the guilty and punishing those not deserving to be punished, by arresting those who ought not to be arrested and not arresting those who ought to be arrested; and by failing to protect subjects from thieves etc. through these causes - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him or against any other person convicted at the same trial, may appeal to the High Court. These provisions must immediately be compared with the preceding Chapter XXVIII containing a fasciculus dealing with a Death Sentence which becomes efficacious only on its being confirmed by the High Court. The proviso to Section 368 enjoins that an order of confirmation shall not be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of. The presence or absence of the accused/convict in the cases of Death References, makes little difference since High Courts are duty-bound to give the matter its utmost and undivided attention. Indubitably, the assistance of Counsel is very important and helpful to the Court in coming to its conclusion. Since it is conceivable that an appeal may not be filed in the High Court by a convict who is to undergo more than seven years imprisonment, the efficacy, legal correctness and propriety of such a sentence is not always dependent on receiving the imprimatur of the High Court. 4. Section 378 of the CrPC inter alia declares that no appeal to the High Court agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the inherent powers of the High Court to make such orders as may be necessary, firstly, to give effect to any order under the CrPC , words which are not to be found in the Code of Civil Procedure, 1908 (hereafter referred to as CPC ). Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance of its orders. For salutary reason Section 482 makes the criminal Court much more effective and all pervasive than the civil Court insofar as ensuring obedience of its orders is concerned. Secondly, Section 482 clarifies that the CrPC does not circumscribe the actions available to the High Court to prevent abuse of its process, from the inception of proceedings till their culmination. Judicial process includes compelling a respondent to appear before it. When the Court encounters a recalcitrant Appellant/convict who shows negligible interest in prosecuting his appeal, none of the Sections in Chapter XXIX of the CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that passing such orders would eventually make it clear to all that intentional and repeated failure to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Pandey; it also adverted to similar opinions expressed in Emperor v. Balumal Hotchand AIR 1938 Sind 171. It noted the disparate language in Section 384 of the CrPC and Order 41 Rule 17 of the CPC before quoting that it is the duty of the Appellate Court to consider the appeal as well as the judgment under challenge on its merits. However, it pithily observed that 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 he fails to obey the direction, other considerations may arise, which may render the appeal liable to be dismissed without consideration of the merits .. It is of significance that the other Three Judge Bench in Bani Singh v. State of U.P. 1996 (4) SCC 720 : AIR 1996 SC 2439 adopted this very dialectic and approach, without reference to Kishan Singh. It is unfortunate that Law Journals have now adopted the practice of reporting almost every order passed by this Court without caring to consider its precedential value. Orders, in contradistinction to Judgments, contain only the decision of the Court. The pronouncements of the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons we think it important to clarify that Bani Singh does not cogitate or reflect upon the options available to the Court which is faced with a recalcitrant Appellant who is not prosecuting his appeal, in flagrant violation and abuse of the bail orders granted in his favour. Kishan Singh deals precisely with the options open to the Appellate Court at the preliminary hearing of an appeal. 10. Any discourse on this aspect of the law would be incomplete without appreciating and assimilating Dharam Pal v. State of U.P. 2008 I AD (SC) 597 : AIR 2008 SC 920 : JT 2008 (1) SC 172. The contention canvassed on behalf of the accused was that a miscarriage of justice had occurred since the Appellant had not been served with notice of the appeal by the High Court, which nevertheless decided the appeal ex parte. Reference was made to Bani Singh as also to CrPC s Chapter XXIX in general, and Sections 385 and 386 in particular; conspicuously Section 482 of the CrPC was not even mentioned. The learned counsel for Dharam Pal had expressed his inability to argue the case before the High Court. As in the case in hand, this Court had perused the impugned Judgment of the High Court and found it to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashionably 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. (See State of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26). 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 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in exercise of its inherent powers in criminal matters the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.....The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the Legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction . A Three-Judge Bench clarified in Krishnan v. Krishnaveni, (1997) 4 SCC 241 that although a second Revision before the High Court after dismissal of the first one by the Court of Sessions is barred by Section 397(3), the inherent powers of the High Court under Section 482 are nevertheless available albeit with restraint so as to avoid needless multiplicity of the proceedings. This Court had opined that when the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment; the administration of law or the form and processes attending it; the principle of just dealing . 14. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:- (a) That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (b) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (c) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (d) That it can dispose of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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