DHANANJAY RAI @ GUDDU RAIversusSTATE OF BIHAR

                        [2022] 6 S.C.R. 763                              763


               DHANANJAY RAI @ GUDDU RAI                                 A
                                  v.
                         STATE OF BIHAR
                  (Criminal Appeal No.803 of 2017)
                                                                         B
                           JULY 14, 2022
        [ABHAY S. OKA AND M.M. SUNDRESH, JJ.]
       Code of Criminal Procedure, 1973 – s.374(2) – Appellant
convicted u/ss.302 and 120B of IPC and s.27(1) of the Arms Act,
1959 – He preferred appeal – High Court of Patna admitted the            C
appeal for hearing – Meanwhile, appellant went absconding – High
Court dismissed the appeal without adverting to merits on ground
that appellant was absconding – Whether an appeal against
conviction filed by an accused u/sub-section (2) of s.374 CrPC can
be dismissed on ground that the accused was absconding – Held:           D
The law does not envisage dismissal of appeal for default or non-
prosecution but only contemplates disposal on merits after perusal
of the record – In the present case, the High Court had relied upon
an earlier High Court decision based on r.8 of Chapter XII of the
Patna High Court Rules which predicates that no appeal against
                                                                         E
conviction shall be heard for admission unless the accused has
surrendered to the order of the Court below convicting him to a
sentence of imprisonment except in a case where the appellant has
been released on bail by the trial court after convicting him – In the
case in hand, a non-bailable warrant was issued against the
appellant and his appeal was already admitted – Therefore, the           F
said rule, which applies to pre-admission stage, was not applicable
in this case – Anguish expressed by High Court about the brazen
action of the appellant of absconding and defeating the
administration of justice can be well understood – However, that is
no ground to dismiss an appeal against conviction, which was             G
already admitted for final hearing, for non-prosecution without
adverting to merits – Appeal remanded to High Court for
consideration on merits – Patna High Court Rules – Chapter XII,
Rule 8.
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                                 763
764            SUPREME COURT REPORTS                      [2022] 6 S.C.R.


A           Remanding the matter to High Court, the Court
            HELD:1. In the impugned judgment, the Division Bench
      of the Patna High Court has itself recorded that it is deviating
      from the settled position of law. Such an approach cannot be
      countenanced. The well settled law can be found in the decision
B     of this Court of a Bench consisting of three Hon’ble Judges in
      the case of Bani Singh & Ors. v. State of U.P. It was held that the
      plain language of Sections 385-386 CrPC does not contemplate
      dismissal of the appeal for non-prosecution simpliciter. On the
      contrary, the CrPC envisages disposal of the appeal on merits
C     after perusal and scrutiny of the record. The law clearly expects
      the appellate court to dispose of the appeal on merits, not merely
      by perusing the reasoning of the trial court in the judgment, but
      by cross-checking the reasoning with the evidence on record
      with a view to satisfying itself that the reasoning and findings
D     recorded by the trial court are consistent with the material on
      record. The law, therefore, does not envisage the dismissal of
      the appeal for default or non-prosecution but only contemplates
      disposal on merits after perusal of the record. [Para 6][767-D;
      768-E-G]

E            2. In the instant case, the High Court relied upon its earlier
      decision in the case of Daya Shankar Singh which was based on
      Rule 8 of Chapter XII of the Patna High Court Rules which
      predicates that no appeal against conviction shall be heard for
      admission unless the accused has surrendered to the order of
      the Court below convicting him to a sentence of imprisonment
F
      except in a case where the appellant has been released on bail by
      the trial court after convicting him. In the case in hand, the appeal
      was already admitted. Therefore, the said rule, which applies to
      the pre-admission stage, was not applicable in this case. [Para
      7][770-B-C]
G
            3. The anguish expressed by the Division Bench about the
      brazen action of the appellant of absconding and defeating the
      administration of justice can be well understood. However, that
      is no ground to dismiss an appeal against conviction, which was
      already admitted for final hearing, for non-prosecution without
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    DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR                        765


adverting to merits. Therefore, the impugned judgment will have        A
to be set aside and the appeal will have to be remanded to the
High Court for consideration on merits. [Para 8][770-D-E]

      Bani Singh & Ors. v. State of U.P. (1996) 4 SCC 720
      : [1996] 3 Suppl. SCR 247 – relied on.
                                                                       B
      Daya Shankar Singh & Anr. v. State of Bihar (2004)
      SCC Online Pat 1189 – held inapplicable.

      Shyam Deo Pandey & Ors. v. State of Bihar (1971) 1
      SCC 855 : [1971] Suppl. SCR 133; Surya Baksh Singh
      v. State of Uttar Pradesh (2013) 2 SCALE 492 : [2013]            C
      14 SCR 452; K.S. Panduranga v. State of Karnataka
      (2013) 3 SCC 721 : [2013] 4 SCR 155 and Ram Naresh
      Yadav v. State of Bihar AIR 1987 SC 1500 – referred
      to.
                                                                       D
                       Case Law Reference

[1971] Suppl. SCR 133          referred to           Para 4

[2013] 14 SCR 452              referred to           Para 4

[2013] 4 SCR 155               referred to           Para 4            E

[1996] 3 Suppl. SCR 247        relied on             Para 6

AIR 1987 SC 1500               referred to           Para 6

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                  F
No.803 of 2017.

      From the Judgment and Order dated 25.08.2015 of the High Court
of Judicature at Patna in Criminal Appeal (DB) No. 936 of 2009.

      Anuj Prakaash, Siddhartha Jha, Advs. for the Appellant.          G
      Saket Singh, Mrs. Niranjana Singh, Advs. for the Respondent.



                                                                       H
766                SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A               The Judgment of the Court was delivered by
                ABHAY S. OKA, J.
            1. The short issue involved in this appeal is whether an appeal
      against conviction filed by an accused under Sub-Section (2) of Section
      374 of the Code of Criminal Procedure, 1973 (for short,’ Cr. P.C.’) can
B
      be dismissed on the ground that the accused is absconding.
             2. The appellant was convicted for the offences punishable under
      Sections 302 and 120B of the Indian Penal Code (IPC) and Section
      27(1) of the Arms Act, 1959. The maximum substantive sentence is of
C     life imprisonment. Against the aforesaid judgment and order dated
      04th September 2009 of conviction passed by the learned Additional
      Sessions Judge, Buxar in Sessions Trial No.338 of 2006, an appeal was
      preferred by the appellant before the High Court of Patna. On
      29th October 2009, a Division Bench of the High Court admitted the
      appeal for hearing. When the application for suspension of sentence
D
      filed by the appellant came up before a Division Bench of the High
      Court, it was brought to the notice of the Court that the appellant was
      absconding. Thereafter, a non-bailable warrant was issued against the
      appellant. As the appellant was absconding, the Director General of
      Police announced a reward to the informant who could report the
E     whereabouts of the appellant.
            3. By the impugned judgment and order dated 25th August 2015, a
      Division Bench of the High Court of Patna dismissed the appeal without
      adverting to the merits of the appeal on the ground that the appellant
      was absconding.
F
              4. The Division Bench held that though the remedy of an appeal
      is a valuable right, the appellant forfeited his right to prefer an appeal the
      moment he escaped from the custody and flagrantly abused the process
      of law. The learned Judges held that such deliberate act on the part of
      the appellant amounts to defiance of the criminal administration of justice.
G
      The Division Bench referred to a decision of this Court in the case of
      Shyam Deo Pandey & Ors. v. State of Bihar1. The Division Bench
      referred to another decision of this Court in the case of Surya Baksh


      1
H         (1971) 1 SCC 855
    DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR                                  767
                [ABHAY S. OKA, J.]

Singh v. State of Uttar Pradesh2 as well as a decision of the same               A
High Court in the case of Daya Shankar Singh & Anr. v. State of
Bihar3. After adverting to another decision of this Court in the case of
K.S. Panduranga v. State of Karnataka4, the Division Bench held
that the circumstances of the case before it were exceptional and,
therefore, the Court was required to deviate from the settled principle of       B
law that once the appellate court has refused to dismiss the appeal
summarily, the same must be heard on merits.
       5. After having heard the learned counsel appearing for the
appellant and the learned counsel appearing for the respondent-State,
for the reasons which are recording, we have no option but to set aside          C
the impugned judgment and remand the appeal for fresh consideration
of the High Court.
       6. In the impugned judgment, the Division Bench of the Patna
High Court has itself recorded that it is deviating from the settled position
of law. Such an approach cannot be countenanced. The well settled law            D
can be found in the decision of this Court of a Bench consisting of three
Hon’ble Judges in the case of Bani Singh & Ors. v. State of U.P.5.
The issue before this Court in the said case was whether the High Court
was justified in dismissing an appeal against conviction for non-
prosecution. This Court noted the conflict in the views expressed by two         E
co-ordinate Benches of this Court in the case of Shyam Deo1 and Ram
Naresh Yadav v. State of Bihar6. Paragraphs 13 to 15 of the said
decision are relevant, which read thus :
       “13. What then is the area of conflict between the two decisions
       of this Court? In Shyam Deo case [(1971) 1 SCC 855 : 1971                 F
       SCC (Cri) 353 : AIR 1971 SC 1606] , 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           G
       next held that if the appellant or his counsel is absent, the appellate
2
  (2013) 2 SCALE 492 = (2014) 14 SCC 222
3
  2004 SCC Online Pat 1189
4
  (2013) 3 SCC 721
5
  (1996) 4 SCC 720
6
  AIR 1987 SC 1500                                                               H
768      SUPREME COURT REPORTS                          [2022] 6 S.C.R.


A     court is not bound to adjourn the appeal but it can dispose it of on
      merits after perusing the record. In Ram Naresh Yadav case [AIR
      1987 SC 1500 : 1987 Cri LJ 1856], the Court did not analyse the
      relevant provisions of the Code nor did it notice the view taken
      in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 :
B     AIR 1971 SC 1606] but held that if the appellant’s counsel is
      absent, the proper course would be to dismiss the appeal for non-
      prosecution but not on merits; it can be disposed of on merits only
      after hearing the appellant or his counsel or after appointing
      another counsel at State cost to argue the case on behalf of the
      accused.
C
      14. We have carefully considered the view expressed in the said
      two decisions of this Court and, we may state that the view
      taken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC
      (Cri) 353 : AIR 1971 SC 1606] appears to be sound except
D     for a minor clarification which we consider necessary to
      mention. The plain language of Section 385 makes it clear that if
      the appellate court does not consider the appeal fit for summary
      dismissal, it ‘must’ call for the record and Section 386 mandates
      that after the record is received, the appellate court may dispose
      of the appeal after hearing the accused or his counsel. Therefore,
E     the plain language of Sections 385-386 does not contemplate
      dismissal of the appeal for non-prosecution simpliciter. On
      the contrary, the Code envisages disposal of the appeal on
      merits after perusal and scrutiny of the record. The law
      clearly expects the appellate court to dispose of the appeal
F     on merits, not merely by perusing the reasoning of the trial
      court in the judgment, but by cross-checking the reasoning
      with the evidence on record with a view to satisfying itself
      that the reasoning and findings recorded by the trial court
      are consistent with the material on record. The law,
G     therefore, does not envisage the dismissal of the appeal
      for default or non-prosecution but only contemplates
      disposal on merits after perusal of the record. Therefore,
      with respect, we find it difficult to agree with the suggestion
      in Ram Naresh Yadav case [AIR 1987 SC 1500 : 1987 Cri
H
DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR                                769
            [ABHAY S. OKA, J.]

 LJ 1856] that if the appellant or his pleader is not present,             A
 the proper course would be to dismiss an appeal for non-
 prosecution.
 15. Secondly, the law expects the appellate court to give a hearing
 to the appellant or his counsel, if he is present, and to the public
 prosecutor, if he is present, before disposal of the appeal on merits.    B
 Section 385 posits that if the appeal is not dismissed summarily,
 the appellate court shall cause notice of the time and place at
 which the appeal will be heard to be given to the appellant or his
 pleader. Section 386 then provides that the appellate court shall,
 after perusing the record, hear the appellant or his pleader, if he       C
 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            D
 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     E
 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 cannot, on      F
 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. If the lawyer is absent, and
 the court deems it appropriate to appoint a lawyer at State expense
 to assist it, there is nothing in the law to preclude it from doing so.   G
 We are, therefore, of the opinion and we say so with respect, that
 the Division Bench which decided Ram Naresh Yadav case [AIR
 1987 SC 1500 : 1987 Cri LJ 1856] did not apply the provisions of
 Sections 385-386 of the Code correctly when it indicated that the
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770            SUPREME COURT REPORTS                           [2022] 6 S.C.R.


A            appellate court was under an obligation to adjourn the case to
             another date if the appellant or his lawyer remained absent.”
                                                              (emphasis added)
             7. We may note here that the High Court relied upon its earlier
      decision in the case of Daya Shankar Singh3 which was based on Rule
B
      8 of Chapter XII of the Patna High Court Rules which predicates that
      no appeal against conviction shall be heard for admission unless the
      accused has surrendered to the order of the Court below convicting him
      to a sentence of imprisonment except in a case where the appellant has
      been released on bail by the trial court after convicting him. In the case
C     in hand, the appeal was already admitted on 29th October 2009. Therefore,
      the said rule, which applies to the pre-admission stage, was not applicable
      in this case.
             8. The anguish expressed by the Division Bench about the brazen
      action of the appellant of absconding and defeating the administration of
D
      justice can be well understood. However, that is no ground to dismiss an
      appeal against conviction, which was already admitted for final hearing,
      for non-prosecution without adverting to merits. Therefore, the impugned
      judgment will have to be set aside and the appeal will have to be remanded
      to the High Court for consideration on merits.
E
            9. We may note that subsequently, the appellant was taken into
      custody and in fact an application for bail made in this appeal was heard
      and rejected on 14th May 2018.
            10. Since the appeal before the High Court is of the year 2009,
F     the same will have to be heard expeditiously. If the appeal could not be
      heard within a reasonable time, in that event, the appellant will have to
      be granted a liberty to apply for suspension of sentence.
            11. Accordingly, the impugned judgment and order dated
        th
      25 August 2015 is hereby set aside. Criminal Appeal (D.B.) No.936 of
G     2009 is remanded to the High Court of Judicature at Patna for hearing in
      accordance with the law.
            12. Considering the fact that the appeal against conviction under
      Section 302 of IPC is of the year 2009, necessary priority deserves to be
      given to the disposal of the appeal. We, therefore, request the High
H
    DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR                                  771
                [ABHAY S. OKA, J.]

Court to ensure that appeal is disposed of as expeditiously as possible,         A
preferably within a period of six months from today.
       13. In the event, that the appeal is not heard within a period of six
months from today, it will be open to the appellant to apply for suspension
of the sentence before the High Court.
                                                                                 B
       14. Appeal is partly allowed in the above terms.


Bibhuti Bhushan Bose                            Matter remanded to High Court.


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