TMI Blog1996 (7) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants. On 28.11.1990, the matter came up for hearing before the High Court. While dismissing the appeal for non-prosecution, the Court recorded the following order : The List has been revised. No one present to argue the case on behalf of the appellant, Sri T.B. Islam A.C.A. is present on behalf of the State. In view of the law laid down in the case of Ram Naresh Yadav Ors. Vs. State of Bihar, reported in AIR (SC) 1987, Page 1500, the appeal is dismissed for non- prosecution without going into the merits of the case The appellants preferred an appeal before this Court. On 19.1.1995, a Division Bench of this Court, while hearing the matter, examined the judgment in Ram Naresh Yadav Ors. Vs. State of Bihar (supra) and came to the conclusion that it was in conflict with the earlier ruling of this Court in Shyam Deo Pandey Ors. Vs. State of Bihar (AIR 1971 SC 1606). It, therefore, directed that the matter be heard by a larger bench. Subsequently, the matter was posted before this Bench. At this juncture, it would be pertinent to make a brief reference to the relevant provisions of law having a bearing on this case. Chapter XXIX of the Code of Criminal Procedure, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against a conviction, the concerned High Court, finding the appellants' pleader absent, perused the judgment under appeal, and, finding no merit in the case, dismissed the appeal. This Court took the view that once the appeal was admitted, it was the duty of the Court to peruse the record of the case before dismissing it. The Court considered this to be a mandatory requirement and, since, in its view, the record of a case is not confined only to the judgment under appeal, it held that the order of the High Court was not in conformity with the requirement of the provision and ordered it to be set aside. In Ram Naresh Yadav's case, a Division Bench of this Court was faced with a case where the High Court had confirmed an order for conviction and sentence without hearing the appellants. Against these facts, the Court took the view that, in criminal matters, convicts must be heard before their matters are decided on merits. It, therefore, set aside the order of the High Court and remanded the matter to it for passing an appropriate order in accordance law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that `after perusing such record' the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing? In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 matters 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. (Emphasis added) What then is the area of conftict between the two decisions of this Court? In Shyam Deo's case, this Court ruled that once the Appellate Court has admitted the appeal to be heard on merits, it cannot dismiss the appeal for non- prosecution for non-appearance of the appellant or his counsel, but must dispose of the appeal on merits after examining the record of the case. It next held that if the appellant or his counsel is absent, the Appellate Court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. In Ram Naresh Yadav's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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