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2015 (8) TMI 1139 - SUPREME COURT OF INDIA

2015 (8) TMI 1139 - SUPREME COURT OF INDIA - 2013 AIR 2164, 2013 (4) SCR 155, 2013 (3) SCC 721, 2013 (3) JT 514, 2013 (3) SCALE 152 - Whether High Court could not have heard the appeal in the absence of the counsel for the accused - Appointment of amicus curiae - Hearing of appeal in absence of appellant - Conviction under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - Imposition of fine -Held that:- In the judgement of Larger bench in Bani Singh (1996 ( .....

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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 e .....

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ault 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 - SUPREME COURT). It, in fact, is in direct conflict with the ratio laid down in Bani Singh (supra). As far as the observation to the effect that the court should .....

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he learned Judges, the view would have been different. - Dictum in Mohd. Sukur Ali (2011 (2) TMI 514 - SUPREME COURT OF INDIA) to the effect that the court cannot decide a criminal appeal in the absence of 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 (supra), is per incuriam. We may hasten to clarify that barring the said aspect, we do not intend to sa .....

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her 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. - explanation offered by the accused does not deserve any acceptance and, accordingly, we find that .....

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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 Specia .....

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pugned judgment, confirmed the conviction, but reduced the sentence to two years rigorous imprisonment from four years as far as the imposition of sentence for the offence under Section 13(1)(d) read with Section 13(2) of the Act is concerned and maintained the sentence in respect of the offence under Section 7 of the Act. 4. The accusations which led to the trial of the accusedappellant are that H.R. Prakash, PW-1, the owner of Prakash Transport, was having a contract for the transport of trans .....

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ncharge of the dispatch department and, therefore, PW-1 approached him. At that juncture, a demand of ₹ 10,000/- was made as illegal gratification to give him more transport loads. The accused-appellant categorically told PW-1 that unless the amount was paid, no load could be allotted to his company. Eventually, a bargain was struck for payment of ₹ 5,000/- to get the load. As PW-1 was not interested in giving the bribe amount to the accused, he approached the Lokayukta and lodged a .....

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f the Act. 5. The accused persons pleaded innocence and took the plea of false implication. 6. The prosecution, in order to substantiate the allegations against the accused, examined PWs 1 to 6 and marked the documents, Exhts. P-1 to P-12, and brought on record MOs-1 to 12. The defence, in order to establish 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; .....

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; 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 foundat .....

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h his contention, yet the fundamental defect in proceeding to deal with the appeal vitiates the verdict. To bolster the said submission, he has commended us to the decision in Mohd. Sukur Ali v. State of Assam (2011) 4 SCC 729. In the said case, the Division Bench held as follows: - 5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel s negligence or deliberately, even then the court should not decide a criminal case against the accu .....

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be the heart and soul of the fundamental rights. After so stating, the Bench relied upon the decision of the US Supreme Court in Powell v. Alabama 77 L Ed 158 : 287 US 45 (1932) which was cited with approval by this Court in A.S. Mohammed Rafi v. State of Tamil Nadu (2011) 1 SCC 688. Reference was also made to Man Singh and another v. State of Madhya Pradesh (2008) 9 SCC 542 and Bapu Limbaji Kamble v. State of Maharashtra (2005) 11 SCC 413. Eventually, the Bench held as follows: - The Founding .....

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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 concer .....

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pellant under Section 302 of the IPC on the charge of murdering his wife by strangulating her to death. At the time of hearing of the appeal, the counsel for the accused did not appear. The High Court perused the evidence and decided the matter. In that context, this Court stated thus:- We are of the view that the High Court should have appointed another advocate as amicus curiae before proceeding to dispose of the appeal. We say so especially for the reason that there are arguable points in the .....

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er for fresh disposal by the High Court expeditiously, after nominating an amicus to assist the Court. 12. From the aforesaid passage, it is demonstrable that this Court has not stated as a principle that whenever the counsel does not appear, the court has no other option but to appoint an amicus curiae and, thereafter, proceed with the case. What has been stated above is that as there were arguable points in appeal and further whether there was clinching circumstantial evidence to convict the a .....

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Section 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and such other offences. This Court observed that when the appeal was called, the counsel who was appointed through the Legal Aid Committee did not appear and the learned single Judge heard the matter with the assistance of the learned panel lawyer for the respondent State. It was contended before this Court that the High Court should not have dismissed the appeal without engaging another counsel or at least without app .....

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. 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. 1 .....

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thus: - 24. 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. Hence, the action of any Bar Association in passing such a resolution 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 suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics. .....

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do so is not following the message of The Gita. Be it noted, in the said case, the Bar Association of Coimbatore had passed a resolution that no member of the Coimbatore Bar Association would defend the accused policemen in criminal case against them in the said case. 16. Prior to that, the Division Bench has quoted the observations of Sutherland, J. (pp. 170-171) from Powell case (supra) that deals with the fate of an accused who is not given the assistance of a counsel. The relevant part is re .....

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competent evidence, or evidence 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 ( .....

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ise 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 suspected terrorist. We are disposed to think that in Mohd. Sukur Ali (supra), the aforesaid case was cited only to highlight the role of the Bar and the ethicality of the lawyers. It does not flow from the said pronouncement that it is obligatory on the part of the Appellate Cou .....

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perusal of the judgment under appeal, had dismissed the criminal appeal challenging the conviction. The Court referred to Section 423 of the Old Code and came to hold that the criminal appeal could not be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal or it should consider the appeal on merits and pass final orders. It is further observed that the consideration of the appeal on merits at the stage of final hearing .....

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tate of Maharashtra AIR 1971 SC 64 wherein reliance was placed on Siddanna Apparao Patil v. State of Maharashtra AIR 1970 SC 977 and Govinda Kadtuji Kadam v. The State of Maharashtra AIR 1970 SC 1033. 20. In Ram Naresh Yadav and others v. State of Bihar AIR 1987 SC 1500, a different note was struck by expressing the view in the following terms: - It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious pr .....

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t 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 B .....

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ceeded to lay down as follows: - .....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 Ss. 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 .....

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om doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav s case (AIR 1987 SC 1500) did not apply the provisions of Ss. 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent. 16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once b .....

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pellant, the higher Court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be 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 .....

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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 Man Singh (supra), this Court has not laid down as a principle that it is absolutely impermissible on the part .....

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Bani Singh (supra). The two-Judge Bench in Mohd. Sukur Ali (supra), had not noticed the binding precedent in Bani Singh (supra). 24. In Union of India and another v. Raghubir Singh (Dead) by LRs etc. (1989) 2 SCC 754, the question arose with regard to the effect of the law pronounced by the Division Bench in relation to a case relating to the same point subsequently before a Division Bench or a smaller number of Judges. Answering the said issue, the Constitution Bench has ruled thus: - It is in .....

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n the point. In John Martin v. State of West Bengal (1975) 3 SCC 836, a Division Bench of three-Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal (1975) 3 SCC 198, decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v. State of West Bengal (1974) 1 SCC 645 decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1, Beg, J. held that the Constitution Bench of five Judges was bound by the Con .....

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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 .....

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1 SC 867 and also the decision of this Court in Hindustan Times Ltd. v. Workmen AIR 1963 SC 1332 which is a four-Judge Bench decision, were not placed before the learned Judges deciding LIC of India case. A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions ava .....

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er before it to a Bench of three learned Judges setting out, the reasons why it could not agree with the earlier judgment. 27. In Chandra Prakash and others v. State of U.P. and another (2002) 4 SCC 234, the Constitution Bench referred to the view expressed in Raghubir Singh s case and Parija s case and opined that in Parija s case it has been held that judicial discipline and propriety demanded a Bench of two learned Judges to follow the decision of a Bench of three learned Judges. 28. Recently .....

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precedent in view of the later decisions of the co-equal Bench of this Court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee (1980) 1 SCC 685 and Balbir Singh v. MCD (1985) 1 SCC 167. It is worth noting that the Division Bench of the High Court proceeded that the decision in Ratnaprabha was no longer good law and binding on it. The matter was referred to the Full Bench which overruled the decision passed by the Division Bench. When the matter travelled to this Court, it observed thu .....

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e 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 a .....

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rately 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 (supra) been brought to the notice of the learned Judges, the view would have been different. 30. Presently, we shall proceed to deal with the concept of per incuriam. In A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602, Sabyasachi Mukharji, J. (as His Lordship then was), while dealing with the said concept, had observed thus: .....

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it. 32. In Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court (1990) 3 SCC 682, another Constitution Bench, while dealing with the issue of per incuriam, opined as under: 40. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. 33. In State of U.P. v. Synthetics and .....

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93 (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 ana .....

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prehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam. 35. In Government of A.P. and another v. B. Satyanarayana Rao (dead) by LRs and others (2000) 4 SCC 262 this Court has observed that the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the s .....

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ay 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 .....

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with all the contentions raised in the memorandum of appeal and heard the learned counsel at a later stage and, hence, we think it apposite to advert to the contentions raised by the learned counsel for the appellant as regards the merits of the case. 38. On merits it has been argued by Mr. Bhat that the essential ingredients of Section 7 of the Act have not established inasmuch as no official work was pending with the accused-appellant and the allotment work was done by the Manager and, hence, .....

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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  .....

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d witness, to make his story credible, has also gone to the extent of stating that he had accompanied the accused to his office where the accused took PW-1 to one side of the room and paid the money. The testimony of this witness has to be discarded as it is obvious that he has put forth a concocted and totally improbable version. The learned Sessions Judge as well as the High Court is correct in holding that the testimony of this witness does not inspire confidence and we accept the same. 40. T .....

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the Manager, it has come out in the evidence of PW-4 that the immediate assignment of the loads of contractors was the responsibility of the accused. He had the responsibility for assignment of loads and in that connection, he had demanded the bribe. It has also come out from Exht. P-11 that the responsibility of the accused was assignment or identification of lorries. In view of the said evidence, it is difficult to accept the plea that he had no responsibility and, hence, he could not have gra .....

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y presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some 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 a .....

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fication. 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 appellant relates to sentence. It is his submission that the appellant has been suffering from number of ailments and there has been immense tragedy in his family life and, hence, the sentence should be red .....

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