DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR

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 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 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 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]

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 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]

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 A B C D E F G H DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR 765 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. [Para 8][770-D-E] Bani Singh & Ors. v. State of U.P. (1996) 4 SCC 720 : [1996] 3 Suppl. SCR 247 – relied on. 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] 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. Case Law Reference [1971] Suppl. SCR 133 referred to [2013] 14 SCR 452 referred to [2013] 4 SCR 155 referred to [1996] 3 Suppl. SCR 247 relied on AIR 1987 SC 1500 referred to Para 4 Para 4 Para 4 Para 6 Para 6 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 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. Saket Singh, Mrs. Niranjana Singh, Advs. for the Respondent. A B C D E F G H 766 SUPREME COURT REPORTS [2022] 6 S.C.R. A B C D E F G 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 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 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 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 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.

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. 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 H 1 (1971) 1 SCC 855 DHANANJAY RAI @ GUDDU RAI v. STATE OF BIHAR [ABHAY S. OKA, J.] 767 Singh v. State of Uttar Pradesh2 as well as a decision of the same 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 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 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 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 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 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 next held that if the appellant or his counsel is absent, the appellate