SURYA BAKSH SINGHversusSTATE OF UTTAR PRADESH

                        [2013] 14 S.C.R. 452


A                      SURYA BAKSH SINGH
                                   v.
                   STATE OF UTTAR PRADESH
                 (Criminal Appeal No.1680 of 2013)
                         OCTOBER 07, 2013
B
           [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

           Criminal Trial - Remedy of appeal - Manipulation and
    misuse of, by convicts - Wilful withdrawal of the convict from
c   cippellate proceedings - Convicts taking recourse to the
    remedy of appeal with the objective of defeating the ends of
    justice by obtaining orders of bail or exemption from
    surrender, and thereupon escaping beyond the reach of the
    /c:iw - Held: This species of appeals should be consciously
0   dismissed on the ground of occasioning a gross abuse of the
    judicial process and an annihilation of justice - However,
     necessity of distinguishing dismissal of appeals in instances
     where steps have been taken by the Court for securing the
    presence of the appellant by coercive means on the one hand,
E    ;;ind those where the appellant may incidentally and unwittingly
     be absent when his appeal is called on for hearing.}_ Bounden
     duty cast upon the Judge not merely to ensure that an
     innocent person is not punished but equally not to become a
     mute spectator to the spectacle of convict circumventing his
F    conviction - It is necessary for the High Court confronted with
     the absence of the convict as well as his counsel to
     immediately proceed against the person who stood surety for
     bail - If this exercise fails to locate and bring forth convict,
     the Appellate Court is empowered uls. 482 Cr.P. C. to dismiss
     tl1e appeal without consideration on merits - In such cases,
G    none of the sections in Chapter XXIX Cr. P. C. dealing with
     ;;1ppeals, precludes or dissuades the Court from dismissing
     ;;1ppeals - Inherent powers of the High Court, poignantly
     preserved in s.482 CrPC, can be pressed into service but with
                                  452
H
     SURYA BAKSH SINGH v. STATE OF UTTAR                   453
                  PRADESH
care, caution and circumspection - In the present case, the        A
High Court while affirming the conviction of appellant had
considered the case in all its complexities - It had manifestly
discussed the evidence that was led, and finding it of probative
value, came to the conclusion that the conviction was above
appellate reproach correction and interference - The High          B
Court was not duty-bound to appoint an amicus curiae - No
fault in the approach of the High Court which had duly
undertaken the curial responsibility fastened upon the
Appellate Court - However, since request for remand is
rejected, and since appellant-convict was not represented          c
through counsel before the High Court, it is proper to permit
the appellant an opportunity to argue appeal before the
Supreme Court on merits- Code of Criminal Procedure, 1973
- s.482 - Abuse of Court.

   Code of Criminal Procedure, 1973 - s.482 - Inherent             D
powers of the High Court under - Discussed.

     Criminal Trial - Appeal - Non appearance of convict-
 appellant or his counsel - High Court decided the appeal ex-
parte - Contention that the High Court _was duty-bound to          E
'appoint an amicus curiae - Held: Not legally sound.

    In the instant criminal appeal, the issue pertaining to
wilful withdrawal of the convict from the appellate
proceedings initiated by him after he had succeeded in
                                                                   F
gaining his enlargement on bail or exemption from
surrender, came up for consideration.

     The contention on behalf of the convict-appellant
was that a miscarriage of justice had occurred since the
appellant had not been served with notice of the appeal            G
by the High Court, which decided the appeal ex parte and
affirmed his conviction. It was contended by the appellant
that the High Court was duty-bound to appoint an amicus
curiae.
                                                                   H
    454     SUPREME COURT REPORTS             [2013] 14 S.C.R.


A       Clranting leave and directing that the case be listed
    for Final hearing, the Court
       HELD:1.1. An ever increasing number of convicts are
  taking recourse to the remedy of appeal with the objective
  of defeating the ends of justice by obtaining orders of
8
  bail 1:>r exemption from surrender, and thereupon escape
  beyo1nd the reach of the law. Jural compulsions now
  dict;1te that this species of appeals should be
  consciously dismissed on the ground of occasioning a
C gross abuse of the judicial process and an annihilation
  of justice. The need to punish every transgressor of the
  ,law is ubiquitously accepted in all legal persuasions
  throughout the ages. [Para 1] [460-F-G]
         ·1.2. However, it is necessary to distinguish dismissal
D of appeals in instances where steps have been taken by
    the Court for securing the presence of the Appellant by
    coercive means, including the issuance of non-bailable
    warrants or initiation of proceedings for declaring the
    Appellant a proclaimed offender by recourse to Part C of
i:; Chapter VI of CrPC on the one hand, and those where
    the Appellant may incidentally and unwittingly be absent
    whein his appeal is called on for hearing. The malaisg
    whic:h this Court is perturbed about is the wilful
    withdrawal of the convict from the appellate proceedings
F initiated by him after he has succeeded in gaining his
    enlairgement on bail or exemption from surrender. [Para
    2] [461 ·E-F]
      1.3. Section 482 of the CrPC preserves the inherent
  power of the High Court. It enunciates that nothing in the
G CrPC shall be deemed to limit or affect the inherent
  powers of the High Court to make such orders as may
  be necessary, firstly, to 'give effect to any order under the
  CrPC', words which are not to be found in the CPC. Ergo,
  the High Court can, while exercising inherent powers in
H
     SURYA BAKSH SINGH v. STATE OF UTTAR               · 455
                  PRADESH
its criminal jurisdiction, take all necessary steps for        A
enforcing compliance of its orders. For salutary reason
Section 482 makes the criminal Court much more
effective and all pervasive than the civil Court insofar as
ensuring obedience of its orders is concerned. Secondly,
Section 482 clarifies that the CrPC does not circumscribe      B
the actions available to the High Court to prevent abuse
of its process, from the inception of proceedings till their
culmination. When the Court encounters a recalcitrant
Appellant/convict who shows negligible interest in
prosecuting his appeal, none of the Sections in Chapter        c
XXIX of the CrPC dealing with appeals, precludes or
dissuades it from dismissing the appeals. It seems that
passing such orders would eventually make it clear to all
that intentional and repeated failure to prosecute the
appeal would inexorably lead not merely to incarceration       D
but more importantly to the confirmation of the conviction
and sentence consequent on the dismissal of the appeal.
Thirdly, none of the provisions of the CrPC can possibly
limit the power of the High Court to otherwise secure the
ends of justice. While it is not possible to define the        E
concept of 'justice', it encompasses not just the rights of
the convict, but also of victims of crime as well as of the
law abiding section of society who look towards the
Courts as vital instruments for preservation of peace and
the curtailment or containment of crime by punishing
those who transgress the law. If convicts can circumvent       F
the .consequence of their conviction, peace, tranquility
and harmony in society will be reduced to a chimera.
Section 482 emblazons the difference between
preventing the abuse of the jural process on the one
hand and securing of the ends of justice on the other.         G
Section 482 of the CrPC has not been given due
importance in combating the rampant malpractice of filing
appeals only for scotching sentences imposed by
criminal Courts. [Para 6) [463-F-H; 464-A-G]
                                                               H
    456    SUPREME COURT REPORTS             [2013] 14 S.C.R.

A        1.4. The reality is that less than twenty per cent of
    prosecutions are successful; the rest are futile largely
    beci:tuse of inept, shoddy or substandard investigation
    and prosecution. Even in cases where the prosecution
    suc1:eeds in proving the guilt of the accused, punishment
B   is emasculated by convicts not because of their
    succeeding in having their conviction overturned and
    rev1ersed by the Appellate Court, but by going
    underground and disappearing from society after
    receiving reprieve from incarceration from the Appellate
c   Court. The interests of society at large are being
    repeatedly sacrificed for the exaggerated, if not
    misplaced concern for what is fashionably termed as
    'human rights' of convicts. Given the woeful success rate
    of the prosecution, if even the relatively niggard number
    of <:onvicts are permitted to circumvent their sentences,
0
    crime is certain to envelop society. Law is dynamic and
    not: immutable or static. It constantly adapts itself to
    critically changing compulsions of society. The criminal
    justice delivery system is being held to ransom by
    convicts who have developed the devious and dishonest
E   pra1ctice of escaping punishment or sentence by filing
    appeals, obtaining bail or suspension of sentence and
    the·reafter disappearing beyond the reach of the arms of
    thei law. The inherent powers under Section 482 of the
    CrPC, which the Supreme Court has on several
F   occasions expounded to have existed from time
    immemorial, predating the present as well as the previous
    CrPC; must be pressed into action lest the already fragile
    policing and prosecuting branches of governance are
    rendered redundant. [Para 11) [468-E-G; 469-B-E]
G
       1.5. Whereas Section 482 of the CrPC is available
  only to the High Courts, Section 151 CPC can be resorted
  to at any stage of civil judicial proceedings in any of the
  hil~rarchical tiers. The use of the word 'otherwise' in
H Se1ction 482 has the avowed effect of boundlessly
     SURYA BAKSH SINGH v. STATE OF UTIAR                457
                  PRADESH
broadening the boundaries of inherent powers of the            A
High Court in exercise of its criminal jurisdiction. Section
482 can be employed to ensure obedience of any order
passed by the Court because of the phrase "to give effect
to any order under this Code". [Para 13] [470-D-F]
                                                               B
     1.6. It is necessary for the Appellate Court which is
confronted with the absence of the convict as well as his
counsel, to immediately proceed against the persons who
stood surety at the time when the convict was granted
bail, as this may lead to his discovery and production in      C
Court. If even this exercise fails to locate and bring forth
the convict, the Appellate Court is empowered to dismiss
the appeal. [Para 14] [472-C-E]
     1.7. There is an alarming and sinister increase in
instances where convicts have filed appeals apparently         D
with a view to circumvent and escape undergoing the
sentences awarded against them. The routine is to file an
appeal, apply and get enlarged on bail or get exempted
from surrender, and thereafter wilfully to become
untraceable or u_nresponsive. It is the bounden duty cast      E
upon the Judge not merely to ensure that an innocent
person is not punished but equally not to become a mute
spectator to the spectacle of convict circumventing his
conviction. If the Court is derelict in doing its duty, the
social fabric will be rent asunder and anarchy will rule       F
everywhere. It is, therefore, imperative to put an end to
such practice by the expeditious disposal of appeals. The
inherent powers of the High Court, poignantly preserved
in Section 482 of the CrPC, can also be press.ed into
service but with care, caution and circumspection. [Para       G
15] [473-B-E]
    Kishan Singh v. State of U.P. (1992) Supp. 2 SCR 305
- relied on.
     Shyam Deo Pandey v. State of Bihar (1971) 1 SCC 855:      H
        458     SUPREME COURT REPORTS               (2013) 14 S.C.R.


    A 1971 (0) Suppl. SCR 133; AIR 1971 SC 1606 - stood
      approved.

             Ram Naresh Yadav v. State of Bihar AIR 1987 SC 1500
        -- stood overruled.
    B       Bani Singh v. State of U.P. 1996 (4) SCC 720: 1996 (3)
       Suppl. SCR 247: AIR 1996 SC 2439; Dharam Pal v. State
       of U.P., 2008 I AD (SC) 597 : AIR 2008 SC 920; Parasuram
       Patel. v. State of Orissa (1994) 4 SCC 664; Madan Lal Kapoor
     · v. Rajiv Thapar (2007) 7 SCC 623: 2007 (9) SCR 686; State
    C of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC
       26: 2003 (5) Suppl. SCR 930; State of Karnataka v. L.
       Muniswamy (1977) 2 SCC 699: 1977 (3) SCR 113; Krishnan
       v. Krishnaveni (1997) 4 SCC 241: 1997 (1) SCR 511; Raj
       Kapoor v. State (Delhi Administration) AIR 1980 SC 258:
    D 1980 (1) SCR 1081 and State of Punjab v. Kasturi Lal (2004)
       12 sec 195: 2004 (3) Suppl. SCR 158 and State of Punjab
       v. Kamai/ Singh (2003) 11 SCC 271: 2003 (2) Suppl. SCR
       593 - referred to.

           Emperor v. Balumal Hotchand AIR 1938 Sind 171 and
    E Stir/and v. Director of Public Prosecutions 1944 AC 315 -
      referred to.

            Kauti/ya's Arthasastra; Plato's treatise 'Laws'; 'A Theory
        of Justice' by Rawls and Advanced Law Lexicon by P.
    F   Ramanatha Aiyar - referred to.

           2.1. In the present case, the High Court has
      considered the case in all its complexities. The argument
      that the High Court was duty-bound to appoint an amicus
    G curiae is not legally sound. In the case in hand the High
      Court has manifestly discussed the evidence that have
      been led, and finding it of probative value, has come to
      the conclusion that the conviction is above Appellate
      reproach correction and interference. The High Court has
\   H duly undertaken the curial responsibility that fastens
     SURYA BAKSH SINGH v. STATE OF UTTAR               459
                  PRADESH
upon the Appellate Court, and cannot be faulted on the        A
approach adopted by it. In this respect, there is no error.
[Para 16] [473-F-H; 474-A-B]

    2.2. So far as the present appeal is concerned, since
a request for remand had been made which is rejected,
                                                              8
and since the convict was not represented through
counsel before the High Court, it is proper to permit the
Appellant an opportunity to argue the Appeal on its
merits. [Para 17] [474-C]

    K.S. Panduranga v. State of Karnataka (2013) 3 SCC        C
721 - relied on.

    Mohd. Sukur Ali v. State of Assam (1996) 4 SCC 729 -
held per incuriam
                     Case Law Reference:                      D

  1971 (0) Suppl. SCR 133      stood approved Para 7
  (1992) Supp. 2 SCR 305       relied on         Para 8
  Al~ 1938 Sind 171            referred to       Para 8       E
  AIR 1987 SC 1500             stood overruled Para 8
  1996 (3) Suppl. SCR 247      referred to       Para 8
  AIR 2008 SC 920              referred to       Para 10
                                                              F
  (1994) 4 sec 664             referred to       Para 11
  2007 (9) SCR 686             referred to       Para 11
  2003 (5) Suppl. SCR 930      referred to       Para 11
                                                              G
  1977 (3) SCR 113             referred to       Para 13
  1997 (1) SCR 511             referred to       Para 13
  1980 (1) SCR 1081 ·          referred to       Para 13
  2004 (3) Suppl. SCR 158      referred to       Para 13      H
    460      SUPREME COURT REPORTS               [2013] 14 S.C.R.


A     (2013) 3 sec 121               relied on          Para 14
      ·t944 AC 315                   referred to        Para 15
      :2003 (2) Suppl. SCR 593       referred to        Para 15
      (1996) 4 sec 129               held per           Para 16
B
                                     incuriam

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1680 of 2013

c       From the Judgment & Order dated 12.08.2004 of the High
    Court of Judicature at Allahabad in Criminal Appeal No. 362
    of 1981.

      S.R. Singh, Anurag Tomar, Ankur Prakash, Sushant K.
  Yadav, Sunit Pandit, Rameshwar Prasad Goyal for the
D Appellant.

          Pragati Neekhra, Rajiv Yadav for the Respondent.

          The Judgment of the Court was delivered by
E       VIKRAMAJIT SEN, J. 1. This appeal brings to the fore
  the rampant manipulation and misuse of the statutory right to
  appeal by an ever increasing number of convicts who take
  mcourse to this remedy with the objective of defeating the ends
  of justice by obtaining orders of bail or exemption from
F surrender, and thereupon escape beyond the reach of the law.
  Jural compulsions .now dictate that this species of appeals
  should be consciously dismissed on the ground of occasioning
  a gross abuse of the judicial process and an annihilation of
  justice. The need to punish every transgressor of the law is
G ubiquitously accepted in all legal persuasions throughout the
  ages. Kautilya's Arthasastra opines that - "By not punishing
  the guilty and punishing those not deserving to be punished,
  by arresting those who ought not to be a"ested and not
  arresting those who ought to be arrested; and by failing to
H protect subjects from thieves etc. through these causes -
     SURYA BAKSH SINGH v. STATE OF UTIAR                    461
         PRADESH [VIKRAMAJIT SEN, J.]
decline, greed and dis-affection are produced among the             A
subjects. It is punishment alone which maintains both this
world and the next." In similar antiquity it has been observed
by Plato in his celebrated treatise Laws ".... not that he is
punished because he did wrong, for that which is done can
never be undone, but in order that in future times, he, and         B
those who see him corrected, may utterly hate injustice, or at
any rate abate much of their evil-doing". In the present time,
and from another segment of the globe the necessity of
punishment has been articulated thus - "By enforcing a public
system of penalties government removes the grounds for              c
thinking that others are not complying with the rules. For this
reason alone, a coercive sovereign is presumably always
necessary, even though in a we/I-ordered society sanctions
are not severe and may never need to be imposed. Rather,
the existence of effective penal machinery serves as men's          0
security to one another' - A Theory of Justice by Rawls.

     2. It is necessary to distinguish dismissal of appeals in
instances where steps have been taken by the Court for
securing the presence of the Appellant by coe;cive means,
including the issuance of non-bail~ble warrants or initiation of    E
proceedings for declaring the Appellant a proclaimed offender
by recourse to Part C of Chapter VI of the Code of Criminal
Procedure, 1973 (CrPC for short) on the one hand, and those
where thl3 Appellant may incidentally and unwittingly be absent
when his appeal is called on for hearing. The malaise which         F
we are p~rturbed about is the wilful withdrawal of ~he convict
from the appellate proceedings initiated by him after he has
succeeded in gaining his enlargement on bail or exemption
from surrender.
                                                                    G
      3. The legal provisions on this subject are to be found
principally in Chapter XXIX of the CrPC. Section 372 reiterates
the general principle of law that an appeal is not a right unless
it is granted by a statute. This Section states that no appeal
shall lie from any judgment or order of a criminal Court except     H
    462     SUPREME COURT REPORTS                [2013] 14 S.C.R.


A as provided for by the CrPC or by any other law for the time
  being in force. Section 374(2) thereafter stipulates that any
  person convicted in a trial held by a Sessions Judge or an
  Additional Sessions Judge or in a trial held by any other Court
  in which a sentence of imprisonment for more than seven years
B r1as been passed against him or against any other person
  convicted at the same trial, may appeal to the High Court.
  These provisions must immediately be compared with the
  preceding Chapter XXVlll containing a fasciculus dealing with
  a Death Sentence which becomes efficacious only on its being
c confirmed by the High Court. The proviso to Section 368
  Emjoins that an order of confirmation shall not be made until the
  period allowed for preferring an appeal has expired, or, if an
  appeal is presented within such period, until such appeal is
  disposed of. The presence or absence of the accused/convict
D in the cases of Death References, makes little difference since
   High Courts are duty-bound to give the matter its utmost and
  undivided attention. Indubitably, the assistance of Counsel is
  very important and helpful to the Court in coming to its
  conclusion. Since it is conceivable that an appeal may not be
  filed in the High Court by a convict who is to undergo more than
E seven years imprisonment, the efficacy, legal correctness and
   propriety of such a sentence is not always dependent on
   receiving the imprimatur of the High Court.

       4. Section 378 of the CrPC inter alia declares that no
F appeal to the High Court against an order of acquittal shall be
  entert~ined except with its express leave. Accordi,ngly, appeals
  against acquittal are distinct from all others. Section 383
  prescribes that if the Appellant is in jail he may present his
  appeal to the officer in-charge of the jail who shall thereupon
G forward it to the appropriate Appellate Court. Section 384
  enables the dismissal of appeals summarily or in limine
  provided the Appellant or his pleader has received a
  reasonable opportunity of being heard. Where appeals are not
  dismissed summarily, Section 385 prescribes the issuance of
H notice to the Appellant or his pleader by the State Government
       SURYA BAKSH SINGH v. STATE OF UTTAR                        463
           PRADESH [VIKRAMAJIT SEN, J.]
 indicating the time and place when the appeal has been                   A
 scheduled to be heard. While the Appellate Court has the
 option to call for the records of the case at the stage of the initial
 hearing of an appeal under Section 384 by virtue of use of the
 word "may'', it becomes mandatory for it to do so at the time of
 the final hearing.                                                       B

        5. Section 386 of the CrPC is of importance for the
  purposes before us. It requires the Appellate Court to peruse
  the records, and hear the Appellant or his pleader if he appears;
  thereafter it may dismiss the appeal if it considers that there is      C
  insufficient ground for interference. In the case of an appeal
  from an order of acquittal (State Appeals in curial parlance) it
  may reverse the order and direct that further inquiry be carried
  out or that the accused be retried or committed for trial. Even
  in the case of an appeal from an order of acquittal the Appellate
  Court is competent to find him guilty and pass sentence on him          D
  according to law. The proviso to this Section prescribes that
· the sentence shall not be enhanced unless the accused has had
  an opportunity of showing cause against such a proposal,
  thereby mandating that an accused must be present and must
  be heard if an order o.f acquittal is to be upturned and reversed.      E
  It is thus significant, and so we reiterate, that the Legislature
  has cast an obligation on the Appellate Court to decide an
  appeal on its merits only in the case of Death References,
  regardless of whether or not an appeal has been preferred by
  the convict.                                                            F

        6. Last, but not least in our appreciation of the law, Section
 482 of the CrPC stands in solitary splendour. It preserves the
 inherent power of the High Court. It enunciates that nothing in
 the CrPC shall be deemed to limit or affect the inherent powers          G
 of the High Court to make such orders as may be necessary,
 firstly, to 'give effect to any order under the CrPC', words which
 are not to be found in the Code of Civil Procedure, 1908
 (hereafter referred to as 'CPC'). Ergo, the High Court can, while
 exercising inherent powers in its criminal ju;isdiction, take all
                                                                          H
    4134     SUPREME COURT REPORTS                  (2013] 14 S.C.R.

A   necessary steps for enforcing compliance of its orders. For
    salutary reason Section 482 makes the criminal Court much
    more effective and all pervasive than the civil Court insofar as
    ensuring obedience of its orders is concerned. Secondly,
    Section 482 clarifies that the CrPC does not circumscribe the
B   aGtions available to the High Court to prevent abuse of its
    process, from the inception of proceedings till their culmination.
    Judicial process includes compelling a respondent to appear
    b1~fore it. When the Court encounters a recalcitrant Appellant/
    ce>nvict who shows negligible interest in prosecuting his appeal,
c   none of the Sections in Chapter XXIX of the CrPC dealing with
    appeals, precludes or dissuades it from dismissing the appeals.
    It seems to us that passing such orders would eventually make
    it clear to all that intentional and repeated failure to prosecute
    the appeal would inexorably lead not merely to incarceration
    but more importantly to the confirmation of the conviction and
0
    sentence consequent on the dismissal of the appeal. Thirdly,
    n1Jne of the provisions of the CrPC can possibly limit the power
    olf the High Court to otherwise secure the ends of justice. While
    it is not possible to define the concept of 'justice', suffice it to
    say that it encompasses not just the rights of the convict, but
E   also of victims of crime as well as of the law abiding section of
    society who look towards the Courts as vital instruments for
    preservation of peace and the curtailment or containment of
    crime by punishing those who transgress the law. If convicts can
    circumvent the consequence of their conviction, peace,
F   tranquility and harmony in society will be reduced to a chimera.
    Section 482 emblazons the difference between preventing the
    abuse of the jural process on the one hand and securing of the
    ends of justice on the other. It appears to us that Section 482
    of the CrPC has not been given due importance in combating
G   the rampant malpractice of filing appeals only for scotching
    sientences imposed by criminal Courts.

       7. This Court was called upon to construe Section 423 of
  the old CrPC (which corresponds to Section 386 of the current
H CrPC) in the wake of the dismissal by the High Court of an
     SURYA BAKSH SINGH v. STATE OF UTIAR                       465
         PRADESH [VIKRAMAJIT SEN, J.]
Appeal on the very next date of hearing after the issuance of          A
notice. In Shyam Deo Pandey v. State of Bihar, (1971) 1 SCC
855: AIR 1971 SC 1606, the High Court had recorded - "No
one appears to press the appeal. On perusal of the judgment
under appeal, I find no merit in the case. It is accordingly
dismissed". An application for restoration of the appeal filed         B
on the same. day was also rejected for not disclosing sufficient
grounds for recalling the dismissal orders. The ratio decidendi
of this decision is that the records of the lower Court must be
available with the Appellate Court if the condition of 'perusal'
is to stand complied with, and therefore the High Court was            c
found to have erred.

     8. This conundrum thereafter engaged the attention of a
Three Judge Bench in Kishan Singh v. State of U.P. [1992]
Supp. 2 SCR 305: 1993 (3) SCALE 312: (1996) 9 sec 372
decided on November 2, 1992. The 'Bench overruled the                  D
observations in the dismissal order passed in Ram Naresh
Yadav v. State of Bihar AIR 1987 SC 1500 and approved
Shyam Deo Pandey; it also adverted to similar opinions
expressed in Emperor v. Balumal Hotchand AIR 1938 Sind
171. It noted the disparate language in Section 384 of the CrPC        E
and Order 41 Rule 17 of the CPC before quoting that it is the
duty of the Appellate Court to consider the appeal as well as
the judgment under challenge on its merits. However, it pithily
observed that "where the Appellant has been sentenced to
imprisonment and he is not in custody when the appeal is taken         F
up for preliminary hearing, the Appellate Court can require him
to surrender, and if he fails to obey the direction, other
considerations may arise, which may render the appeal liable
to be dismissed without consideration of the merits ..... " It is of
significance that the other Three Judge Bench in Bani Singh            G
v. State of U.P. 1996 (4) sec 720 : AIR 1996 SC 2439
adopted this very dialectic and approach, without reference to
Kishan Singh. It is unfortunate that Law Journals have now
adopted the practice of reporting almost every order passed
                                                                       H
    466      SUPREME COURT REPORTS                [2013) 14 S.C.R.


A   by this Court without caring to consider its precedential value.
    Ord1:irs, in contradistinction to Judgments, contain only the
    decision of the Court. The pronouncements of the Apex Court
    command adherence essentially when it is clear that the law
    has been considered in detail and that its articulation is,
B   theri:ifore, an elucidation and exposition of the law. Faciously,
    Ram Naresh Yadav does not fall in this category; in any event,
    it has been stoutly overruled by Three Judge Bench. The words
    in Kishan Singh quoted by us above are encouragement for
    applying Section 482 of the CrPC to cases where the
c   Appellant/convict chooses not to prosecute the appeal after
    being enlarged on bail or being exempted from surrender.

        9. Bani Singh, a Three Judge Bench decision, posits that
  if an appeal is not dismissed summarily, then the Appellate
  Court should, after perusing the records, hear the Appellant or
D his pleader. This Court clarified that "the law does not enjoin
  that the court shall adjourn the case if both the Appellant and
  his llawyer are absent. ..... It can dispose of the appeal after
  perusing the record and judgment of the Trial Court ...... if the
  accused is in jail and cannot, on his own, come to Court, it
E woul<:1 be advisable to hear the case and fix qnother 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,
  therie is nothing in the law to preclude it from doing so". Indeed,
F the Court was not confronted by the wilful abscondence of the
  concerned Appellant. It is noteworthy that the High Court had
  not taken steps calculated to secure the presence of the
  Appellant before it. On the contrary it had palpably adopted the
  less. tedious course of simply dismissing the appeal. Bani
G Singh overruled the Order in Ram Naresh Yadav which had
  prescribed that a criminal appeal could be disposed of on
  merits only after hearing the Appellant or his counsel. Signally,
  the Court had observed that in order to enforce discipline the
  appeal could be dismissed for non-prosecution. In both these
H cases it is apparent that the High Court had not taken any steps
     SURYA BAKSH SINGH v. STATE OF UTTAR                       467
         PRADESH [VIKRAMAJIT SEN, J.]
to secure the presence of the Appellant; in other words, t.hat         A
there was no material to manifest that the Appellant had
abandoned his appeal or had no intention to prosecute it. In
Bani Singh attention of the Court was not drawn to the views
of a Coordinate Bench in Kishan Singh decided four years
previously on 2.11.1992. Having carefully read through both the        B
opinions we think it important to clarify that Bani Singh does
not cogitate or reflect upon the options available to the Court
which is faced with a recalcitrant Appellant who is not
prosecuting his appeal, in flagrant violation and abuse of the
bail orders granted in his favour. Kishan Singh deals precisely        c
with the options open to the Appellate Court at the preliminary
hearing of an appeal.

      10. Any discourse on this aspect of the law would be
incomplete without appreciating and assimilating Dharam Pal
v. State of UP. 2008 I AD (SC) 597 : AIR 2008 SC 920 : JT              D
2008 (1) SC 172. The contention canvassed on behalf of the
accused was that a miscarriage of justice had occurred since
the Appellant had not been served with notice of the appeal by
the High Court, which nevertheless decided the appeal ex parte.
Reference was made to Bani Singh CilS also to CrPC's Chapter           E
XXIX in general, and Sections 385 and 386 in particular;
conspicuously Section 482 of the CrPC was not even
mentioned. The learned counsel for Dharam Pal had expressed
his inability to argue the case before the High Court. As in the
case in hand, this Court had perused the impugned Judgment             F
of the Hig~ Court and found it to be well-merited ,and duly
predicated on a careful consideration of the material on record.
It was observed that - "The position, of course,· would have
been different if the High Court had simply dismissed the
appeal without going into the merits ...... That being the position,   G
it cannot be said that the High Court had ignored the basic
principles of criminal justice while disposing of the appeal ex
pa rte". Dharam Pal and for that matter Bani Singh or Shyam
Deo Pandey neither proscribe the invocation of Section 482
of the CrPC nor opine that dismissal of an appeal under                H
    468      SUPREME COURT REPORTS                [2013] 14 S.C.R.


A Section 482, for good reasons which are lucidly spelt out, is
  improper. It has not hithertofore even been considered that
  Section 482 of the CrPC should be applied in circumstances
  of the wilful abscon·dence of the Appellant/convict in
  contumacious and deliberate disregard and disobedience of
B the terms and conditions on which he was enlarged on bail or
  e:xempted from surrender.

         11. The discussion would not be complete without noticing
    the Orders in Parasuram Patel v. State of Orissa, (1994) 4
    SCC 664 and Madan Lal Kapoor v. Rajiv Thapar, (2007) 7
C   sec 623. In neither of these cases had the Appellate Court
    taken steps available to it to ensure the attendance of the
    Appellant. Instead, it appears that the concerned High Court
    had adopted the obviously less tedious &;:>proach of dismissing
    the appeals only because neither the Appellant nor his counsel
D   were present when the case was called on for hearing. The
    Court did not ruminate upon the curial malpractice which has
    mow become endemic; viz. the filing of appeals by convicts with
    the obvious intent to frustrate and circumvent sentences passed
    by criminal Courts. We cannot close our eyes to the reality that
E   less than twenty per cent of prosecutions are successful; the
    rest are futile largely because of inept, shoddy or substandard
    investigation and prosecution. Even in cases where the
    prosecution succeeds in proving the guilt of the accused,
    punishment is emasculated by convicts not because of their
F   succeeding in having their conviction overturned and reversed
    by the ~ppellate Court, but by going unde:rg,round and
    disappearing from society after receiving reprieve from
    incarceration from the Appellate Court. We are convinced that
    the interests of society at large are being repeatedly sacrificed
G   for the exaggerated, if not misplaced concern for what is
    fashionably termed as 'human rights' of convicts. Recent
    judgments of the Court contain a perceptible dilution of legal
    principles such as the right of silence of the accused. The
    Supreme Court has, in several cases, departed from this rule
H
     SURYA BAKSH SINGH v. STATE OF UTTAR                     469
         PRADESH [VIKRAMAJIT SEN, J.]
in enunciating, inter alia, that the accused are duty bound to       A
give a valid explanation of facts within their specific and
personal knowledge in order to dispel doubts on their
complicity. Even half a century ago this would have been a jural
anathema. Given the woeful success rate of the prosecution, if
even the relatively niggard number of convicts are permitted to      B
circumvent their sentences, crime is certain to envelop society.
Law is dynamic and not immutable or static. It constantly adapts
itself to critically changing compulsions of society. (See State
of Punjab v. De vans Modern Breweries Ltd. (2004) 11 SCC
26). The criminal justice delivery system is being held to ransom    c
by convicts who have developed the devious and dishonest
practice of escaping punishment or sentence by filing appeals,
obtaining bail or suspension of sentence and thereafter
disappearing beyond the reach of the arms of the law. The
inherent powers under Section 482 of the CrPC, which the             0
Supreme Court has on several occasions expounded to have
existed from time immemorial, predating the present as well
as the previous CrPC, must be pressed into action iest the
already fragile policing and prosecuting branches of
governance are rendered redundant. Since Section 482 of the
                                                                     E
 CrPC was not considered by either of the Three Judge
 Benches of this Court, we have not found it necessary to resort
to recommending the matter for being laid before a Larger
 Bench. The facts and pronouncement in Bani Singh cannot be
 extrapolated to the factual matrix before us. On the contrary the
 opinion in Ram Naresh Yadav as well as in Kishan Singh are          F
 available to us to ensure that preventive action is devised to
 combat the abuse of Court process so that facilitative steps are
 taken to secure the ends of justice.

      12. Section 482 of the CrPC is of singular and seminal·        G
significance. The statutory provision which immediately comes
to mind is Section 151 of the CPC because to a great extent
the language is identical. We are juxtaposing the two Sections
for the facility of reference:-
                                                                     H
    470      SUPREME COURT REPORTS                 [2013) 14 S.C.R.


A          Section 482 of CrPC            Section 151 of CPC

      Saving of inherent power of       Saving of inherent
      High Court. - Nothing in this     powers of Court.        -
      Code shall be deemed to limit     Nothing in this Code
B     or affect the inherent powers     shall be deemed to limit
      of the High Court to make         or otherwise affect the
      such orders as may be             inherent power of the
      necessary to give effect to       Court to make such order
      any order under this Code, or     as may be necessary for
c     to prevent abuse of the           the ends of justice or to
      process of any Court or           prevent abuse of the
      otherwise to secure the ends      process of the Court.
      c1f justice.

        13. It is at once obvious that whereas Section 482 of the
D CrPC is available only to the High Courts, Section 151 can bd
   res.orted to at any stage of civil judicial proceedings in any of
  the' hierarchical tiers. Secondly, the use of the word 'otherwise'
   in Section 482 has the avowed effect of boundlessly
   broadening the boundaries of inherent powers of the High Court
E ·in 1axercise of its criminal jurisdiction. Thirdly, Section 482 can
   be employed to ensure obedience of any order passed by the
   Court because of the phrase "to give effect to any order under
   this Code". State of Karnataka v. L. Muniswamy, (1977) 2 SCC
  699 enunciates that in exercise of its inherent powers in criminal
F matters "the High Court is entitled to quash a proceeding if it
   comes to the conclusiori that allowing the proceeding to
   continue would be an abuse of the process of the Court or that
  the ends of justice require that the proceeding ought to be
   quashed .... .The ends of justice are higher than the ends of mere
G law though justice has got to be administered according to laws
   made by the Legislature. The compelling necessity for making
  these observations is that without a proper realisation of the
   object and purpose of the provision which seeks to save che
   inherent powers of the High Court to do justice between the
H State and its subjects, it would be impossible to appreciate the
     SURYA BAKSH SINGH v. STATE OF UTTAR                         471
         PRADESH [VIKRAMAJIT SEN, J.]
width and contours of that salient jurisdiction". A Three-Judge          A
Bench clarified in Krishnan v. Krishnaveni, {1997) 4 SCC 241
that although a second Revision before the High Court after
dismissal of the first one by the Court of Sessions is barred by
Section 397(3), the inherent powers of the High Court under
Section 482 are nevertheless available albeit with restraint so          B
as to avoid needless multiplicity of the proceedings. This Court
had opined that "when the High Court notices that there has
been failure of justice or misuse of judicial mechanism or
procedure, sentence or order is not correct, it is but the salutary
duty of the High Court to prevent the abuse of the process or            c
miscarriage of justice or to correct irregularities ..... The inherent
power of the High Court is not one conferred by the Code but
one which the High Court already has in it and it is preserved
by the Court". Raj Kapoor v. State (Delhi Administration), AIR
1980 SC 258 considered the question whether the inherent
                                                                         0
power of the High Court under Section 482 stand repelled when
the revisional power under Section 397 overlaps. The view was
that- "Section 482 contradicts this contention because nothing
in the Code, not even Section ·397 can affect the amplitude of
the inherent power preserved in so many terms by the language
of Section 482. Even so, a general principle pervades this               E
branch of law; when a specific provision is made, easy resort
to inherent power is not right except under compelling
circumstances. Not that there is absence of jurisdiction but that
inherent power should not invade areas set apart for specific
power under the same Code". In State of Punjab v. Kasturi Lal,           F
(2004) 12 SCC 195 : 2004 Crl. L.J. 3866, after cautioning
against reckless use of Section 482 this Court has observed-
"lnherent jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and only when
such exercise is justified by the tests specifically laid down in        G
the section itself. It is to be exercised ex debito justitiae to do
real and' substantial justice for the administration of which alone
Courts exists. Authority of the Courts exists for advancement
of justice and if any attempt is made to abuse that authority so
 as to produce injustice, the Court has power to prevent such            H
    472      SUPREME COURT REPORTS                  [2013] 14 S.C.R.


A abu:se. It would be an abuse of process of the Court to allow
  any action which would result in injustice and prevent promotion
  of justice. In exercise of the powers Court would be justified to
  quash any proceeding if it finds that initiation/continuance of it
  amounts to abuse of the process of Court or quashing of these
B proceedings would otherwise serve the ends of justice".
  Advanced Law Lexicon by P. Ramanatha Aiyar defines Justice
  as -- "The exercise of authority or power in maintenance of right;
  vindication of right by assignment of reward or punishment; the
  administration of law or the form and processes attending it;
c the principle of just dealing".

         14. It seems to us that it is necessary for the Appellate
    Court which is confronted with the absence of the convict as
    well as his counsel, to immediately proceed against the persons
    who stood surety at the time when the convict was granted bail,
D   as this may lead to his discovery and production in Court. If even
    this exercise fails to locate and bring forth the convict, the
    Appellate Court is empowered to dismiss the appeal. We fully
    ancl respectfully concur with the recent elucidation of the law,
    profound yet perspicuous, in K. S. Panduranga v. State of
E   Kamataka (2013) 3 sec 721. After a comprehensive analysis
    of previous decisions our learned Brother had distilled the legal
    position into six propositions:- (a) That the High Court cannot
    dismiss an appeal for non-prosecution simpliciter without
    examining the merits; (b) That the Court is not bound to adjourn
F   the matter if both the Appellant or his counsel/lawyer are absent;
    (c) That the Court may., as a matter of prudence or indulgence,
    adjourn the matter but it is not bound to do so; (d) That it can
    dispose of the appeal after perusing the record and judgment
    of the trial court. (e) That if the accused is in jail and cannot, on
G   his own, come to court, it would be advisable to adjourn the case
    and fix another date to facilitate the appearance of the
    Appellant-accused 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
H   pmclude the court from doing so; and (f) That if the case is
     SURYA BAKSH SINGH v. STATE OF UTTAR                     473
         PRADESH [VIKRAMAJIT SEN, J.]
decided on merits in the absence of the Appellant, the higher        A
court can remedy the situation.

      15. The enunciation of the inherent powers of the High
Court in exercise of its criminal jurisdiction already articulated
by this Court on several occasions motivates us to press             8
Section 482 into operation. We reiterate that there is an
alarming and sinister increase in instances where convicts have
filed appeals apparently with a view to circumvent and escape
undergoing the sentences awarded against them. The routine
is to file an appeal, apply and get enlarged on bail or get          C
exempted from surrender, and thereafter wilfully to become
untraceable or unresponsive. It is the bounden duty cast upon
the Judge not merely to ensure that an innocent person is not
punished but equally not to become a mute spectator to the
spectacle of convict circumventing his conviction. (See Stir/and
v. Director of Public Prosecutions, 1944 AC 315 quoted with          D
approval by Arijit Pasayat, J. in State of Punjab v. Kamai/
Singh {2003) 11 SCC 271). If the Court is derelict in doing its
duty, the social fabric will be rent asunder and anarchy will rule
everywhere. It is, therefore, imperative to put an end to such
practice by the expeditious disposal of appeals. The inherent        E
powers of the High Court, poignantly preserved in Section 482
of the CrPC, can also be pressed into service but with care,
caution and circumspection.

     16. Reverting back to the facts of the present case a           F
perusal of the impugned order makes it abundantly evident that
the High Court has considered the case in all its complexities.
The argument that the High Court was duty-bound to appoint
an amicus curiae is not legally sound. Panduranga correctly
considers Mohd. Sukur Ali v. State of Assam (1996) 4 SCC             G
729 as per incuriam, inasmuch as the latter mandates the
appointment of an amicus curiae and is thus irreconcilable with
Bani Singh. In the case in hand the High Court has manifestly
discussed the evidence that have been led, and finding it of
probative value, has come to the conclusion that the conviction
                                                                     H
    474       SUPREME COURT REPORTS              [2013] 14 S.C.R.

A is above Appellate reproach correction and interference. In view
  of the analysis of the law the contention raised before us that it
  was essential for the High Court to have appointed an amicus
  curiae is wholly untenable. The High Court has duly undertaken
  the curial responsibility that fastens upon the Appellate Court,
B and cannot be faulted on the approach adopted by it. In this
  naspect, we find no error.

          17. So far as the present Appeal is concerned, since a
  nequest for remand had been made which we stoutly reject, and
C since the convict was not represented through counsel before
  tine High Court, we think it proper to permit the Appellant an
  opportunity to argue the Appeal on its merits. We therefore
  ~1rant Leave and direct that the case be listed for Final hearing.

    Elibhuti Bhushan Bose                            Matter adjourned.