HARJINDER SINGHversusSTATE OF PUNJAB

                     [2010] 10 S.C.R. 326


A                       HARJINDER SINGH
                                 v.
                       STATE OF PUNJAB
               (Criminal Appeal No. 1536 of 2010)
                        AUGUST 16, 2010
B
        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

        Code of Criminal Procedure, 1973:

C      ss. 385 and 386 - Procedure for hearing appeals and
  power of appellate court - Appeal against conviction -
  Appellant in jail - Counsel engaged absented himself on the
  date of hearing - None heard on behalf of appellant - High
  Court affirmed the conviction and sentence of 10 years RI and
o a fine of Rs. 1 lakh - HELD: In view of the legal position with
  regard to disposal of the appeals with reference to ss. 385-
  386 and taking note of the special circumstances that the
  appellant was behind the bar and had no opporlunity to make
  alternative arrangement, the impugned judgment set aside
E and matter remitted to High Coult for disposal of the appeal
  afresh and expeditiously after affording opporlunity to both
  sides, particularly, to the appellant, as he is in jail -
  Conclusion emerging from Bani Singh's case as regards
  ss. 385 and 386, culled out - Practice and Procedure -
F Narcotic Drugs and Psychotropic Substances Act, 1985.

        Bani Singh. VS. State of U.P. 1996 (3) Suppl. SCR 247 =
    1996 (4) sec 720 - relied on

       Shyam Deo Pandey .vs. State of Bihar (1971) Suppl.
G SCR 133    = 1971 (1) SCC 855; and Ram Naresh Yadav vs.
  State of Bihar AIR 1987 SC 1500 - referred to.
                        Case Law Reference:
        1996 (3) Suppl. SCR 247             relied on     para 5
H                            326
     HARJINDER SINGH v. STATE OF PUNJAB                   327


    (1971) Suppl. SCR 133         referred to    para 5           A
    AIR 1987 SC 1500              referred to    para 5

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1536 of 2010.
                                                                  B
    From the Judgment & Order dated 19.08.2008 of the High
Court of Punjab & Haryana at Chandigarh in Crl. A. No. 1440-
SB of 2001.

    Mukesh K. Verma, Ashwani Bhardwaj for the Appellant.
                                                                  c
    Kuldip Singh for the Respondent.

    The following order of the Court was delivered

                            ORDER
                                                                  D
    Leave granted.

    Heard both sides.

    The main grievance of the appellant is that his counsel was
absent and not heard any one on his behalf by the High Court      E
when his appeal was disposed of finally on 19th August, 2008.
The impugned order also shows that none appeared for the
appellant whereas the State was represented by the Deputy
Advocate General.
                                                                  F
     The appellant-accused has filed Criminal appeal No. 1440-
SB of 2001 before the High Court against the conviction and
sentence under the Narcotic Drugs and Psychotropic
Substances Act imposed by the Special Court, Hoshiarpur. The
Special Court senten6ed him to 10 years rigorous imprisonment     G
and imposed a fine a Rs. 1 lakh. Though the High Court has
considered the grounds raised in the memorandum of appeal,
considering the fact that the appellant-accused was behind the
bar and could not make alternative arrangement and the Court
has also not arranged ~a counsel at the State expense and in      H
    328      SUPREME COURT REPORTS                   [2010] 10 S.C.R.


A   view of sentence, i.e. 10 years rigorous imprisonment and a
    fine of Rs. 1 lakh, we intend to give one more opportunity to
    the appellant-accused to put forth his case through a lawyer in
    the High Court.

B         It is usef\,11 to refer a three Judge Bench decision of this
    Court in Bani Singh & Ors. Vs. State of UP. , (1996) 4 SCC
    720. The question that was posed before the three Judge
    Bench was that where the accused-appellant is represented
    by a pleader and latter fails to app;.;ar when the appeal is called
    on for hearing, is the appellate Court empowered to dispose
C   of the appeal after perusing the recqrd 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? After finding
    difference of opinion in Shyam Deo Pandey vs. State of Bihar,
    (1971) 1 SCC 855 and Ram Naresh Yadav vs. State of Bihar,
D   AIR 1987 SC 1500, the matter was referred to a large Bench.
    The following conclusions emerge from the said decision is :

                 (i)      The plain language of Sections 385-386
                          does not contemplate dismissal of the
E                         appeal for non-prosecution simplicitor. On
                          the contrary, the Code envisages disposal
                          of the appeal on merits after perusal and
                          scrutiny of the record.

                 (ii)      Even in the absence of lawyer, the Court is
F                        . competent to dispose of the appeal but only
                           on perusing the record and after
                           appreciation of grounds raised.

                 (iii)     Even in the absence of a lawyer though the
G                         appellate Court is competent to decide the
                          appeal on merits, 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
H                         the accused/appellant if his lawyer is not
        HARJINDER SINGH v. STATE OF PUNJAB                   329


                   present. If the lawyer is absent and the Court    A
                   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.

     In view of the legal position with regard to the disposal of B
the appeals with reference to Sections 385-386 of the Code
and taking note of the special circumstances that the accused
was behind the bar and had no opportunity of make alternative
arrangement, we set aside the impugned judgment and remit
the matter to the High Court. We request the High Court to C
restore the appeal to its original number i.e., Criminal Appeal
No. 1440-SB of 2001 and dispose of the same after affording
opportunity to both sides particularly, to the appellant. Since the
appellant is in jail, we request the High Court to give priority
and dispose of the matter within a period of four months from
                                                                    0
the date of the receipt of the copy of this order.

       The appeal is disposed of accordingly.

R.P.                                       Appeal disposed of.