Case Note & Summary
The Supreme Court considered whether the Allahabad High Court could dismiss a criminal appeal for non-prosecution after it had admitted the appeal and issued notice. The appellants had been convicted by the VII Additional Sessions Judge, Bulandshahar on 13 June 1979 under Sections 366 and 368 of the Indian Penal Code and sentenced to three years rigorous imprisonment with a fine of Rs 100 each. They filed an appeal in the High Court of Allahabad, which was admitted on 18 June 1979, with notice issued, execution of sentence stayed, and bail granted. The appeal remained pending until 28 November 1990, when the High Court dismissed it for non-prosecution because no one appeared for the appellants, relying on Ram Naresh Yadav v. State of Bihar, without examining the merits. The appellants approached the Supreme Court, and on 19 January 1995 a Division Bench noticed a conflict between Shyam Deo Pandey v. State of Bihar and Ram Naresh Yadav v. State of Bihar, and referred the matter to a larger Bench. The larger Bench examined the scheme of Chapter XXIX of the Code of Criminal Procedure, 1973, particularly Sections 384, 385 and 386. Section 384 permits summary dismissal only before notice is issued; once the appeal is admitted and notice is issued under Section 385, Section 386 governs the final disposal. Section 385(2) mandates sending for the record unless the appeal is limited to sentence. Section 386 requires the appellate court to peruse the record and hear the appellant or his pleader if he appears, and the public prosecutor if he appears. The Court held that the absence of the appellant or counsel does not oblige the court to adjourn, but the appeal must be decided on merits after perusing the record. The Court approved the interpretation in Shyam Deo Pandey, which held that even if the appellant or counsel is absent, the court has jurisdiction to proceed with disposal of the appeal, but that disposal must be after consideration on merits. The Court found that Ram Naresh Yadav did not notice Shyam Deo Pandey and had stated a contrary proposition, though its ultimate direction was to remand the matter for hearing. The Court held that the correct legal position is that an appellate court cannot dismiss a criminal appeal for non-prosecution after admission due to non-appearance of the appellant or counsel; it must peruse the record and decide on merits. Accordingly, the Supreme Court set aside the High Court's order dated 28 November 1990 and remitted the appeal to the High Court for disposal on merits in accordance with law.
Headnote
A) Criminal Procedure - Appellate Jurisdiction - Dismissal for Non-Prosecution - Code of Criminal Procedure, 1973, Sections 384, 385, 386 - The High Court admitted the appeal and issued notice under Section 385, making Section 384 summary dismissal inapplicable; Section 386 governed. Held that once an appeal is admitted, the appellate court cannot dismiss it for non-prosecution merely because the appellant or counsel is absent; it must peruse the record and decide the appeal on merits (Paras not mentioned). B) Criminal Procedure - Interpretation of Section 386 CrPC - Duty to Peruse Record and Hear Parties - Code of Criminal Procedure, 1973, Section 386 - Section 386 requires the appellate court to peruse the record and hear the appellant or his pleader if he appears, and the public prosecutor if he appears, before dismissing the appeal for lack of sufficient ground. Absence of the appellant or counsel does not oblige the court to adjourn; it may proceed to decide the appeal on merits after examining the record. Shyam Deo Pandey v. State of Bihar correctly interpreted the corresponding Section 423 of the old Code and remains good law (Paras not mentioned). C) Precedent - Conflict Between Coordinate Benches - Correctness of Prior Decision - Code of Criminal Procedure, 1973, Sections 385, 386 - The Division Bench in Ram Naresh Yadav v. State of Bihar did not notice the earlier Shyam Deo Pandey decision and stated that an appeal could be dismissed for non-prosecution but not on merits; this view was inconsistent with Shyam Deo. The larger Bench held Shyam Deo's interpretation correct and that dismissal for non-prosecution after admission is impermissible; the matter must be considered on merits (Paras not mentioned). D) Criminal Procedure - Procedure on Non-Appearance - Option to Appoint Counsel - Code of Criminal Procedure, 1973, Sections 385, 386 - While the appeal must be decided on merits, if the appellant or counsel is absent, the court may appoint counsel at state cost to argue on behalf of the appellant, but cannot dismiss the appeal for non-prosecution without examining the record and merits (Paras not mentioned).
Issue of Consideration
Whether the High Court was justified in dismissing the appeal for non-prosecution when the appellant or counsel was absent, after the appeal had been admitted and notice issued, without going into the merits of the case.
Final Decision
The Supreme Court held that once an appeal is admitted, the appellate court cannot dismiss it for non-prosecution due to non-appearance of appellant or counsel; it must peruse the record and decide on merits. The Court resolved the conflict by holding Shyam Deo Pandey's interpretation to be correct and disapproved the contrary view in Ram Naresh Yadav. It accordingly set aside the High Court's order dated 28.11.1990 and remitted the appeal to the High Court for disposal on merits in accordance with law.
Law Points
- Once a criminal appeal is admitted
- the appellate court cannot dismiss it for non-prosecution solely due to absence of the appellant or counsel
- it must peruse the record and decide on merits
- Section 384 CrPC summary dismissal applies only before notice
- Section 386 CrPC requires perusal of record and hearing if present but absence does not preclude disposal on merits
- Section 385(2) mandatory to send for record unless appeal limited to sentence
- Shyam Deo Pandey lays down correct law
- Ram Naresh Yadav did not notice earlier precedent and is disapproved
