KISHAN SINGHversusSTATE OF UTTAR PRADESH

                         KISHAN SINGH                                         A
                               v.
                    STATE OF UTTAR PRADESH

                          NOVEMBER 2, 1992

        [LAUT MOHAN SHARMA, K. RAMASWAMY AND
                 N. VENKATACHALA, JJ.]

      Code of Criminal Procedure, 1973 : Sections 374, 382, 383, 384.

       Criminal appeal-Non-prosecution-Power of Court to dismiss-Heid
a criminal appeal cannot be dismissed for non-prosecution-Appel/ate court
                                                                              c
should examine the petition of appeal and judgment under challenge and
consider the merits of the case before dismissing the appeal summarily-Dis-
tinction between crinlina/ and civil appeal di,1:cussed.

      Civil Procedure Code, 1908 : Order 47 Rule 11, 17 and 19.               D
      The appellant was convicted under Section 5(2) of the Prevention of
Corruption Act and was sentenced to two years rigorous imprisonment
and a fine of Rs. 200. He filed an appeal under Section 374 of the Criminal
Procedure Code before the Allahabad High Court which was dismissed for
default of the appearance of the appellant and his counsel. An application    E
for restoration of the appeal made thereafter was also dismissed. In
appeal to this Court it was contended on behalf of the appellant that the
appeal could not have been dismissed for default on the ground of absence
of the appellant or his counsel to appear and press the appeal.

      Allowing the appeal and setting aside the orders of the High Court,     F
this Court,

       HELD: 1. The High Court was not right in dismissing the appeal on
the ground of non-appearance of the appellant or his counsel and it
Should have allowed the prayer of restoration of the criminal appeal under    G
its inherent power. [310-C]

      2. Under Section 384 of the Criminal Procedure Code it is the duty
of the appellant court to examine the petition of appeal and the judgment
under challenge and to consider the merits of the case before dismissing
the appeal summarily. The said duty is not dependent on the appellant or      H
                                    305
    3()(,               SllPHEME COURT REPORTS [J992J SL:PP. 2 S.C.R.

A hi; counsel appearing before the Court to press the appeal. As soon as a
    petition of appeal is presented under Section 382 or 383 it becomes the
    dut~' of the appellate court to consider the san1e on merits, even in the
    absence of the apprllant and his counsel before dismissing the same
    summarily. Therefore, the High Court should have either examined the
    appellant"; petition of appeal and the judgment under challenge, itself or
B
    appointed a counsel to assist the Court! but could not have proceeded to
    dismiss the same on the ground that the advocate for the appellant was
    not present. [308-G, H; 309-A, CJ

          3. The position of a crhninal appeal is not be same as that of a civil
c   appeal. A comparison of the provisions of Section 384 of the Criminal
    Procedure Code with those of Order 41, Rules 11 and 17 of the Civil
    Procedure Code clearly brings out the difference. Rule 17, Order 41 of
    Civil Procedure Code in expres; terms provides that an appeal may be
    dismissed on the ground of absence of the appellant when the appeal is
    called out, and Rule 19 provides for its restoration on the appellant
D   offering sufficient cause for his non-appearance. However, in the case of a
    cri1ninal appea! the corresponding provisio~s are not to be found in the
    Code of Criminal Procedure. On the other hand the Code in express terms
    requires the matter to be considered on merits. Thus a criminal appeal
    cannot he dismissed for non-prosecution. [309-D, EJ
E
          Ram Naresl1 Yadav & Ors. v. State of Bihar, A.l.R. 1987 S.C. 1500,
    dissented form.

          S/lyam Dea Pandey & Or5. v. State of Bihar, [1971] Suppl. S.C.R. 133,
    relied on.
F
          Emperor v. Baiumai Hotchand and Ors., 39 Criminal Law Journal
    890 and Ramesh Nonu v. State of Gujarat, 17 Gujarat Law Reporter 350,
    referred to.

          CRIMINAL AP PELLA TE JURISDICTION: Criminal Appeal No.
G
    183 of 1993.

         From the Judgment and Order dated 11.5.1992 of the Allahabad
    High Court in Criminal Appeal No. 1791 of the 1979.

H           Bahar U. Bargi and Anis Suhrawardy for the Appellant.
                   KISI IAN SINGH v. ST,\TE OF !J.P.                   307

      The following Order of the Court was delivered:                         A

      The petitioner was convicted by the Special Judge, Mathura under
Section 5(2) of the Prevention of Corruption Act and was sentenced to t\vo
years' rigorous imprisonment and a fine of Rs. 200. He filed an appeal
hcforc the Allahabad High Court which was dismissed for default of the
appearance of the petitioner and his counsel, when the appeal was called      B
out for preliminary hearing. An application for restoration of the appeal
made thereafter has also dismissed by the order which has been challenged
before this Court in the present special leave petition.

      2. The question which arises in this case is whether an appeal filed    c·
under Section 374 of the Criminal Procedure Code by an accused against
his conviction and sentence could be dismissed for the default of the
appellant in prosecuting the appeal either in percon or through counsel.

     3. Notice was issued in the special leave petition indicating that the
matter would be finally disposed of at the notice stage itself. The office D
report indicates that notice has been served, but there is no appearance on
behalf of the respondent State. Special leave is granted.

      4. The High Court in its order dated 14th November, 1990 dismissing
the appeal for non-prosecution, relied upon the obs~rvations of this Court    E
in Ram Naresh Yadav and others v. State of Bihar, AIR 1987 SC 1500 to
the following effect:

        "The court can dismiss the appeal for non-prosecution and
        enforce discipline or refer the matter to the Bar Council
        with this end in view. But the matter can be disposed of on           F
        merits only after hearing the appellant or his counsel."

      5. The learned counsel for the appellant has contended that the
appeal could not have been dismissed for default on the ground of absence
of the appellant or his counsel to appear and press the appeal. The           G
argument appears to be well founded.

      6. As enjoined by Section 382 .of the Code of Criminal Procedure,
the appeal has to be filed in the form of a petition. Section 384 (omitting
sub-sections (3) and (4) which are not relevant in the present context)
quoted below deals with summary disposal of appeal:                           H
    308                 SlJPRlcMF COURT REPORTS p992) SUPP. 2 S.C.R.

A           "384. Summary dismiso;al of appeal: (I.) If upon examining
            the petition of appeal and copy of the judgment received
            under Sec. 3~2 or Sec. 383, the Appellate Court considers
            that there is no s1ifficicnt ground for interfering, it may
            dismiss the appeal sununarily:

B               Pruvi<le<l lhal ·

                (a) no appeal presented under Sec. 382 shall be dis·
                    missed unless the appellant or his pleader has
                    had a reasonable opportunity of being heard in
                    support of the same;
c
                (b) no appeal presented under Sec. 383 shall be dis·
                    missed except after giving the appellant a
                    reasonable opportunity of being heard in sup·
                    port of the same, unless the Appellate Court
                    considers that the appeal is frivolous or that the
D                   production of the accused in custody before the
                    Court would involve such inconvenience as
                   would be disproportionate in the circumstances
                   of the case;

                (c) no appeal presented under Sec. 383 shall be dis-
E
                    missed summarily until the period allowed for
                    preferring such appeal has expired.

            (2) Before dismissing an appeal under this section, the
                Court may call for the record of the case."
F
           7. It will be seen that the very opening words of the Section require
    the Appellate Court to examine the petition of appeal and copy of the
    impugned judgment in considering whether there is any sufficient ground
    for interfering with the same. Sub-section (2) provides that the Court may
    call for the records of the case even at the preliminary stage. It is, thus
G   clear, that the duty of the appellate court to examine the petition of appeal
    and the judgment under challenge and to consider the merits of the case
    before dismissing the appeal summarily is not dependent on the appellant
    or his counsel appearing before the Court to press the appeal. As soon as
    a petition of appeal is presented under Section 382 or 383 it becomes the
H   duty of the appellate court to consider the same on merits, even in the
                      KISHAN SINGH v. STATE OF U.P.                      309

    absence of the appellant and his counsel before dismissing the same A
    summarily. In a case where the appellant has been sentenced to imprison-
    ment and he is not in custody when the appeal is taken up for preliminary
    hearing, the Appellate Court can require him to surrender, and if the
    appellant fails to obey the direction, other considerations may arise, which
    may render the appeal liable to be dismissed without consideration of the
                                                                                 B
    merits, but that is altogether a different matter with which we are not
    concerned in the present case. Here, the appellant's advocate was not
    present to argue the appeal when the case was called out and in the
    restoration application filed subsequently, attempt was made to explain the
    default, which, of course, did not succeed. The question is, whether in the
    circumstances, the High Court could have dismissed the appeal for default,   c
    and if not, whether the prayer for restoration should have been allowed.
    As is manifest from the provisions of Criminal Procedure Code, referred
     to above, the High Court should have either examined the appellant's
     petition oc appeal and the judgment under challenge, itself or appointed a
     counsel to assist the Court, but could not have proceeded to dismissed the D
     same on the ground that the Advocate for the appellant was not present.
     The position of a criminal appeal is not the same as in a civil appeal
     governed by the Civil Procedure Code. A eomparison of the provisions of
     Sectiou 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure
     Code clearly brings out the difference. Rule 17, Order 41 of Civil Proce-
                                                                                 E
     dure Code in express terms provides that an appeal may be dismissed on
     tht ground of absence of the appellate when the appeal is called out, and
     Rule 19 provides for its restoration on the appellant offering sufficient
     cause for his non-appearance. In the case of a criminal appeal the cor-
     responding provisions are not to be found in the Code of Criminal Proce-
     dure. On the other hand the Code in express terms requires the matter to F
     be considered on merits. Thus a criminal appeal cannot be dismissed for
     non-prosecution, and this is the reason as to why the Criminal Procedure
     does not contain any special provision like Order 41, Rule 19. The law was
     correctly laid down in Shyam Deo Pandey & Ors. v. State of Bihar, [1971]
     Suppl. SCR 133 a case governed by the old Criminal Procedure Code. The G
    position in this regard remains the same under the new Code. Even earlier,
    the High Courts were following this very principle is clear from the
    observations in Emperor v. Ba/wnal Hotchand and Others,39 Criminal Law
    Journal 890 and Ramesh Nanu v. State of Gujarat, 17 Gujarat Law Reporter
    350. In Emperor v. Balumal Hotchand and Others, it was observed thus: H




1
    310                 SUPREME COURT REPORTS [ 1992] SUPP. 2 S.C.R.

A   Thal the law requires that before an Appellate Court dismisses and appeal
    summarily, il shall read a copy of the judgment, and then, if there is no
    sufficient ground for interfering, it may dismiss the appeal summarily. ll
    was emphasized that the dismissal of the appeal shall depend on the
    exercise by the Judge of his independent and impartial mind after he has
B   read a copy of the judgment, and not upon the failure of the accused to
    press his appeal.

          8. In view of the clear language of the Code of Criminal Procedure
    and the other reasons mentioned above we are constrained to hold that the
    observations of this Court in AIR 1987 Supreme Court page 1500 relied
C   upon by the High Court in the case before us, cannot be treated as having
    laid down the law correctly. The High Court was, therefore, not right in
    dismissing the appeal on the ground of non-appearance of the appellant
    or his counsel and it should have, therefore, allowed the prayer of restora-
    tion of the criminal appeal under its inherent power. Jn the result, the
D   present appeal is allowed, the orders of the High Court are sel aside, the
    Criminal Appeal No. 1791 of 1979 before the High Court is restored and
    the matter is remitted to the High Court for consideration and decision on
    merits in accordance with law.

    T.N.A.                                                     Appeal allowed.