TMI Blog2015 (8) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the record and judgment of the trial court; (v) 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 accused-appellant 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 (vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. There is no trace of doubt that the principle laid down in Mohd. Sukur Ali (2011 (2) TMI 514 - SUPREME COURT OF INDIA) 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 (7) TMI 562 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amount as illegal gratification. Therefore, the conviction recorded against the accused is unimpeachable. The said conclusion is in consonance with pronouncement of this Court in State of Maharahstra v. Dnyaneshwar Laxaman Rao Wankhede [2009 (7) TMI 1230 - SUPREME COURT]. - Sentence of accused is reduced - Decided partly in favour of appellant. - CRIMINAL APPEAL NO. 373 OF 2013 - - - Dated:- 1-3-2015 - K. S. Radhakrishnan and Dipak Misra, JJ. For The Petitioner : MR. S. N. BHAT For The Respondent : MR. V. N. RAGHUPATHY Dipak Misra, J. Leave granted. 2. The appellant was convicted for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short the Act ) by the learned Special Judge, Bangalore, and sentenced to undergo one year rigorous imprisonment and to pay a fine of ₹ 10,000/-, in default, to suffer a further rigorous imprisonment for two months on the first score and four years rigorous imprisonment and to pay a fine of ₹ 15,000/- and on failure to pay fine to suffer further rigorous imprisonment for three months on the second count, with the stipulation that both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablish its stand, examined a singular witness, DW-1. 7. The learned trial Judge posed three questions, namely, (i) whether the sanction order obtained to prosecute the accused was valid and proper; (ii) whether the prosecution had been able to prove that the accused had demanded and accepted the illegal gratification of ₹ 5,000/- as a motive or reward for the purpose of showing an official favour to the complainant, i.e., allotting transport loads and thereby committed the offence under Section 7 of the Act; and (iii) whether the prosecution had proven that the accused, by means of corrupt and illegal means, abused his position and obtained a pecuniary advantage in the sum of ₹ 5,000/-, as a result of which he committed an offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. The learned Special Judge, analyzing the evidence on record, answered all the questions in the affirmative and came to hold that the prosecution had been able to bring home the charge and, accordingly, recorded the conviction and imposed the sentence as mentioned earlier. 8. On appeal being preferred, the High Court confirmed the conviction and the sentence on the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers. After so holding, the learned Judges set aside the impugned judgment of the High Court and remitted the matter to take a fresh decision after hearing the learned counsel for the appellant in the High Court whose name was not shown in the cause list and the name of the former counsel was shown. We may hasten to clarify whether in the said case the matter should have been remitted or not is presently not the concern. The question is whether the ratio laid down by the Division Bench that even if the counsel for the accused does not appear because of his negligence or deliberately, then the court should not decide the case against the accused in the absence of his counsel as he should not suffer for the fault of the counsel. 11. At this stage, we think it appropriate to refer to the decisions which have been relied on by the Division Bench. In Bapu Limbaji Kamble (supra), the High Court had convicted the appellant under Section 302 of the IPC on the charge of murdering hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging another counsel or at least without appointing an amicus curiae. Resisting the said contention, it was contended by the State that the High Court analysed the relevant evidence including the evidence of the two relevant witnesses and, hence, no fault could be found with the judgment. The two-Judge Bench, after recording the said stand and stance, opined thus: - 5. We need not deal with the merits of the case as we find that the learned counsel appointed by the Legal Aid Committee did not appear on the date fixed before the High Court. The High Court could have in such circumstances required the Legal Aid Committee to appoint another counsel. Considering the seriousness of the offence, it would have been appropriate for the High Court to do so. 14. On a careful reading of the decision in its entirety and what has been aforestated, it is vivid that it has not been laid down as a ratio that in each circumstance, the High Court should appoint a counsel failing which the judgment rendered by it would be liable to be set aside. 15. In A.S. Mohammed Rafi v. State of Tamil Nadu (supra), the Division Bench, after referring to Article 22(1), the dictum in Powell (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. 17. We have referred to the said judgment in extenso as it has been stated in Mohd. Sukur Ali (supra) that the said passage has been quoted with approval in A.S. Mohammed Rafi (supra). 18. On a studied perusal of the said decision, it is noticeable that the Court has stated about the role of the lawyer and the role of the Bar Association in the backdrop of professional ethics and norms of the Constitution. It has been categorically held therein that the professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee and the lawyer is not otherwise engaged and, therefore, no Bar Association can pass a resolution to the effect that none of its members will appear for a particular accused whether on the ground that he is a policeman or on the ground that he is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their mattes are decided on merits. The court can dismiss the appeal for nonprosecution 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. 21. In Bani Singh and others v. State of U.P. AIR 1996 SC 2439, a three-Judge Bench was called upon to decide whether the High Court was justified in dismissing the appeal filed by the accused-appellants therein against the order of conviction and sentence issued by the trial court for non-prosecution. The High Court had referred to the pronouncement in Ram Naresh Yadav (supra) and passed the order. The three-Judge Bench referred to the scheme of the Code, especially, the relevant provisions, namely, Section 384 and opined that since the High Court had already admitted the appeal following the procedure laid down in Section 385 of the Code, Section 384 which enables the High Court to summarily dismiss the appeal was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted. (Emphasis supplied) 22. From the aforesaid decision, the principles that can be culled out are (i) that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (ii) that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; (iii) that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (iv) that it can dispose of the appeal after perusing the record and judgment of the trial court; (v) 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 accused-appellant 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 (vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. 23. In Bapu Limbaju Kamble (supra), and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding on a Division Bench of three-Judges of the Court. And in Mattulal v. Radhe Lal (1974) 2 SCC 365, this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat (1975) 1 SCC 11 that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd. (1985) 4 SCC 369 25. In N.S. Giri v. Corporation of City of Mangalore and others (1999) 4 SCC 697, while taking note of the decision in LIC of India v. D.J. Bahadur (1981) 1 SCC 315 in the context of binding precedent under Article 141, the learned Judges observed thus: - .....suffice it to observe that the Constitution Bench decision in New Maneck Chowk Spg. and Wvg. Co. Ltd. v. Tex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to the Full Bench which overruled the decision passed by the Division Bench. When the matter travelled to this Court, it observed thus: (Indian Oil Corpn. Ltd. case, SCC p. 100, para 8) 8. The Division Bench of the High Court in Municipal Corpn., Indore v. Ratnaprabha Dhanda 1989 MPLJ 20 was clearly in error in taking the view that the decision of this Court in Ratnaprabha was not binding on it. In doing so, the Division Bench of the High Court did something which even a later coequal Bench of this Court did not and could not do. 29. 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 (supra) 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority . (Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293 (CA)) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. 34. In Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694, while addressing the issue of per incuriam, a two-Judge Bench, after referring to the dictum in Bristol Aeroplane Co. Ltd. (supra) and certain passages from Halsbury s Laws of England and Raghubir Singh (supra), has stated thus: 138. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case (1980) 2 SCC 565 which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have shown any official favour. It has also been contended that mere recovery of bribed money from the possession of the accused is not sufficient to establish the offence and it is the duty of the prosecution to prove the demand and acceptance of money as illegal gratification but the same has not been proven at all. 39. To appreciate the said submission, we have carefully perused the judgment of the learned trial Judge as well as that of the High Court and the evidence brought on record. On a perusal of the Mahazar (Exht.-4), it is evident that a sum of ₹ 5,000/- was recovered from the accused. That apart, the factum of recovery has really not been disputed. The plea put forth by the defence is that the accused had borrowed ₹ 20,000/- from the complainant and to pay it back he had availed a loan from DW-1, an auto driver. In support of the said stand on behalf of the accused, DW-1, an auto-driver, has been examined, who has deposed that the accused needed ₹ 20,000/- to pay back a loan to PW-1 and he had given the said sum to him in his house and, thereafter, had accompanied the accused to his office and PW-1 was taken to a side by the accused where he gave t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted. 42. In view of the aforesaid analysis, we find that the prosecution has established the factum of recovery and has also proven the demand and acceptance of the amount as illegal gratification. Therefore, the conviction recorded against the accused is unimpeachable. The said conclusion is in consonance with pronouncement of this Court in State of Maharahstra v. Dnyaneshwar Laxaman Rao Wankhede (2009) 15 SCC 200. 43. The alternative submission of the learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
