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K.S. Panduranga Versus State of Karnataka

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 (7) TMI 562 - SUPREME COURT), it has not been laid down as a ratio that in each circumstance, the High Court should appoint a counsel f .....

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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 abse .....

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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 have appointed amicus curiae is in a different realm. It is one thing to say that the court should have appointed an amicus curiae an .....

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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 say anything on the said judgment as far as engagement of amicus curiae or the decision rendered regard being had to the obtaining factu .....

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. 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 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 .....

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- 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 suff .....

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mposition 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 transformers belonging to Karnataka Vidyuth Karkhane (KAVIKA), Bangalore, and the said agreement was for the period 15.9.2000 to 14.9.2001. .....

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egal 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 complaint as per Exht. P-1 which was registered as Criminal Case No. 9 of 2001. The investigating agency of Lokayukta, after completin .....

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te 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; (ii) whether the prosecution had been able to prove that the accused had demanded and accepted the illegal gratification of ₹ 5 .....

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ned 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 foundation that the recovery, demand and acceptance of illegal gratification had been established to the hilt. 9. We have heard Mr. S.N. Bhat .....

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n, 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 accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a sit .....

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ll 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 Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, a .....

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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 .....

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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 appeal such as the delay in giving the report to the police, the material discrepancy between the version in the FIR and the depositi .....

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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 appellant or not, deserved a fuller consideration and in that backdrop, the Court directed for nominating an amicus to assist the Court .....

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e 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 appointing an amicus curiae. Resisting the said contention, it was contended by the State that the High Court analysed the relevant evide .....

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ness 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 (s .....

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yer 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. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution i .....

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on 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 reproduced below: - The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by cou .....

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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 decisio .....

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ar 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 Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment rend .....

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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 and to arrive at a decision on merits and pass final orders will not be possible unless the reasoning and findings recorded in the ju .....

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ovinda 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 problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of t .....

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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 .....

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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. 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 .....

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se (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 but again and again till the Court issues a warrant for the appellant s presence. A complaint to the Bar Council against the lawyer for .....

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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 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 .....

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r 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 of the High Court to advert to merits in a criminal appeal in the absence of the counsel for the appellant. We have already stated tha .....

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n 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 order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been .....

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w 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 Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. In Ganapati Sitaram Balvalkar v. Waman .....

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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. Corporat .....

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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 available. 26. Another Constitution Bench in Pradip Chandra Parija and others v. Pramod Chandra Patnaik and others (2002) 1 SCC 1 has lai .....

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dra 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, in Rattiram and others v. State of Madhya Pradesh (2012) 4 SCC 516, the three-Judge Bench, referring to the decision in Indian Oil C .....

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tee (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 thus: (Indian Oil Corpn. Ltd. case, SCC p. 100, para 8) 8. … The Division Bench of the High Court in Municipal Corpn., Indore v. R .....

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ase 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 (supra). It, in fact, is in direct conflict with the ratio laid down in .....

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d 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: - 42. … Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of so .....

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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 Chemicals Ltd. (1991) 4 SCC 139, a two-Judge Bench adverted in detail to the aspect of per incuriam and proceeded to highlight as foll .....

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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 bindin .....

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ly, 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 same issue or where a court omits to consider any statute while deciding that issue. 36. In view of the aforesaid annunciation of law, .....

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s 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 that after the judgment was dictated in open court, the counsel appeared and he was allowed to put forth his submissions and the same .....

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osite 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, he could not have shown any official favour. It has also been contended that mere recovery of bribed money from the possession of the .....

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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 accuse .....

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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. The next limb of the said submission is that the accused was not in-charge of allotment of work and, hence, could not have granted any .....

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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 granted any favour. It is well settled in law that demand and acceptance of the amount as illegal gratification is sine qua non for const .....

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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 ac .....

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ment 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 reduced to the period already undergone. As is evincible, the appellant has been convicted under Section 7 of the Act and sentenced to un .....

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