Ashim Kumar Roy, J.@mdashOn a complaint in writing made to the Court by the Petitioner PCS Industries Limited alleging commission of offences punishable under Sections 420/406/418/506/120B of the Indian Penal Code, a case being Complaint Case No. C-4350/2004 was registered. While the aforesaid case was pending for trial before the learned Metropolitan Magistrate, 3rd Court, Calcutta, on June 16, 2009 the complainant was absent in Court without taking any steps and the learned Magistrate dismissed the complaint u/s 256 of the Code of Criminal Procedure.
The Petitioner being aggrieved by such order preferred an appeal before the City Sessions Court, Calcutta being Criminal Appeal No. 62 of 2009. Such appeal was filed along with an application for condonation of delay u/s 5 of the Limitation Act. However, on the date fixed for hearing, since nobody appeared on behalf of the Petitioner to press such application, the learned Chief Judge, City Sessions Court, Calcutta, dismissed the application for condonation of delay and the appeal. The Petitioner in the instant criminal revision challenged the said order of dismissal before this Court.
2. At the time of hearing of the said criminal revision before a Single Bench, it was urged on behalf of the Petitioner that dismissal of a criminal appeal on default, without examining the merit of the case is illegal and without jurisdiction and in support of his argument the learned Counsel of the Petitioner relied on a decision of a co-ordinate Bench of this Court in the case of Samir Purkait @ Samir Kumar Purkait v. The State of West Bengal and Anr., reported in (2009) 1 Cr. L.R. 829 (Cal).
However the learned Single Judge observing as follows referred the matter for a decision by a larger Bench.
The factual matrix involved in the case of Samir Purkait (supra) and the one before me stand on different footing. In the case of Samir Purkait (supra) it was a conviction on merit. The convict was within his right to prefer an appeal before the Higher Court, which he did belatedly. His application for condonation was dismissed for default. There was no adjudication on merit. Hence, he preferred the second one. In the case in hand, the application in a complaint case initiated u/s 200 was dismissed as the complainant failed to proceed as he was absent on repeated occasions. He was not ordinarily entitled to prefer appeal and his status, as an Appellant could not be compared with the one as in the case of Samir Purkait (supra). His Lordship, in the case of Samir Purkait (supra), advanced an analogy that it would affect the personal liberty in case of dismissal of the appeal. I fully agree with His Lordship in a case of conviction. However, a lackadaisical approach of a complainant would not deserve adjudication of the controversy in his absence. In a complaint case, the complainant has to produce evidence before the Court in support of his complaint. If he is absent, there is no one to proceed with. In my view, the decision in the case of Samir Purkait (supra) could not be applied as an abstract proposition of law in all cases where the Appellant files an appeal or a belated appeal along with an application for condonation, as the case may be, and then disappears from the scene. Since it was a case of conviction learned Judge was perhaps right. However, in case of acquittal, such proposition of law, in my view, cannot be applied. Since I am not ad idem on the proposition of law per se I feel that instead of bypassing the issue, let the issue be decided by a Larger Bench once for all that would be a guiding factor for future.
3. The question of law formulated in the said order of reference for our decisions are as follows;
(i) Is the proposition of law decided in the case of Samir Purkait (supra) be also applicable in a case where an appeal is filed either against the order of acquittal or against the order of discharge?
(ii) If so, under what circumstance?
4. We have very carefully gone through the order of reference and considered the reasons which persuaded the learned Single Judge to refer this criminal revision for a decision by a larger Bench, the question of law formulated and also the decision of another Single Bench in the case of Samir Purkait (supra).
5. So far as the decision of the Single Judge of our High Court in the case of Samir Purkait (supra), is concerned, there is nothing wrong in it. The view taken in the said decision is quite sound and in consonance with the settled principle of law, governing the field. The Hon''ble Supreme Court in catena of decisions uniformly held, dismissal of appeal against conviction for nonprosecution simpliciter, without examining the case on merit, not being contemplated in CrPC, is bad in law. Although on this score decisions of the Apex Court are legion but in our opinion, it would be sufficient to refer a three Judges Bench decision, in the case of
It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a mater of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. The plain language of Ss. 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code 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.
14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in
15. Secondly, the law expects the Appellate Court to give a hearing to the Appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the Appellant or his pleader. Section 386 then provides that the appellate Court shall, after perusing the record, hear the Appellant or his pleader, if he appears. It will be noticed that S. 385 provides for a notice of the time and place of hearing of the appeal to be given to either the Appellant or his pleader and not to both presumably because notice to the Pleader was also considered sufficient since he was representing the Appellant. So also S. 386 provides for a hearing to be given to the Appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that 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 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, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav''s case (AIR 1987 SC 1500) did not apply the provisions of Ss. 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the Appellant or his lawyer remained absent.
6. Having regards to the reference before us, we find the learned referring Judge, in his conclusion, observed that the factual matrix in the case of Samir Purkait (supra) and the criminal revision before him stand on different footing and also recorded his agreement with the ratio of Samir Purkait (supra), but finally held since it was a case of conviction learned Judge was perhaps right, however in case of acquittal such proposition of law cannot be applied. So far as the aforesaid observation of the learned referring Judge that the ratio of Samir Purkait (supra), was perhaps right, we are of the opinion that the said decision cannot be said to be "perhaps" right (emphasis supplied), for the simple reason the ratio of the said decision is well-founded on the several judicial pronouncements of the highest Court of the land. One of such decision in the case of Bani singh and Ors. v. State of U.P. (supra) referred herein above. Therefore, there cannot be any pinch of doubt as to the correctness of the ratio of Samir Purkait (supra). However, in spite of our best efforts we are unable to discover the area of conflict between the decision of Samir Purkait (supra) and the conclusion arrived at by the referring Judge. The learned referring Judge having come to a definite finding that the factual matrix of the case of Samir Purkait (supra), and the case before him, i.e. the instant criminal revision stand on different footing, since the case of Samir Purkait (supra) arising out of an order of dismissal of a criminal appeal against conviction and the case before him is one of dismissal of criminal appeal against acquittal and having agreed with the ratio of Samir Purkait (supra) and then holding that in case of acquittal such proposition of law cannot be applied, the instant criminal revision could have been easily disposed of on merit by him without referring the same to a larger bench. We are of the opinion this reference is totally uncalled for.
Since the learned Judge was possibly little hesitant in dealing with the matter and referred the same to a Larger Bench for decision, despite the fact we do not find any conflict between the view expressed by the learned referring Judge and the decision of Samir Purkait (supra) which would have called for the reference, still on being insisted by the learned Counsel appearing on behalf of the parties and having regards to the fact that the final disposal of the instant criminal revision by this Bench, would not cause any prejudice to the parties, as there will be no loss of forum and no further remedy lies before this Court against disposal of a criminal revision either by a Single Bench or by a Division Bench, accordingly this criminal revision is taken up for final hearing by us instead of sending it back to the referring Bench.
7. Before adverting to the core issue it would be appropriate for us to notice the factual backgrounds of the case which gave rise to the instant criminal revision. It appears by an order passed on June 16, 2009 the learned Metropolitan Magistrate, 3rd Court, Calcutta dismissed a complaint case invoking Section 256 of the Code due to the fact no step was taken by the complainant. There cannot be any controversy that the order so passed amounts to an order of acquittal. Aggrieved by such order of acquittal the Petitioner, who happened to be the complainant of the said case, preferred an appeal before the learned Chief Judge, City Sessions Court, Calcutta, along with an application for condonation of delay u/s 5 of the Limitation Act. The said appeal along with the application for condonation of delay faced the same fate and both were dismissed as no step was taken on behalf of the Petitioner when the appeal was taken up for hearing. The aforesaid order of acquittal was passed on June 16, 2009 long before the Code of Criminal Procedure (Amendment) Act 2008, came into force with effect from December 31, 2009. Therefore as the law stands at that juncture in case of acquittal, in connection with a case instituted on a complaint, irrespective of the Court which passed such order of acquittal, may be a Court of Magistrate or be a Court of Sessions, according to the provisions of Sub-section (4) of Section 378 of the Code, appeal shall lie before the High Court, subject to grant of Special Leave to Appeal. When such an appeal only lies before the High Court, the Court of Chief Judge, City Sessions Court, Calcutta, an inferior Court is in inherent lack of jurisdiction to entertain such an appeal. Consequently, any order passed in connection with such an appeal is a nullity, be that an order allowing the appeal or an order of dismissal of appeal. For this reason alone the order impugned cannot be sustained and is liable to be quashed.
8. Coming to the core issue arises for decision in this criminal revision, whether an appeal against acquittal can be dismissed for default simpliciter or not, at this stage after concluding that the impugned order is manifestly illegal and erroneous and furthermore on the face of the conclusions of the learned referring Judge, we having found no area of conflict, we can very well close the matter, still we propose to adjudicate the issue for the sole reason, now by amending Section 272 of the Code of Criminal Procedure, with effect from December 31, 2009 by the Code of Criminal Procedure (Amendment) Act, 2008, a substantive right of appeal against an order of acquittal has been conferred on a victim and thus all future controversy over the selfsame question may be avoided. By virtue of the aforesaid amendment now a "victim" defined in Section 2(wa) of the Code can challenge the order of acquittal before a High Court when such order of acquittal has been passed by a Court of Sessions and before a Court of Sessions when such order is passed by any Judicial Magistrate. The provisions for obtaining leave to appeal before filing of substantive appeal in case of a victim has been dispensed with by the aforesaid amendment.
So far as the case in hand is concerned, we find that the appeal in question was preferred along with an application for condonation of delay and due to the fact no step was taken by the Appellant, the Appellate Court, the Chief Judge, City Sessions Court, Calcutta, first dismissed the application for condonation of delay and consequently the appeal. Therefore, in this case the appeal was dismissed even before its admission, although such appeal never lie before the City Sessions Court, Calcutta, and the same was only maintainable before the High Court, subject to grant of Special Leave. The Apex Court in innumerable decisions held against dismissal of petition for leave to appeal against acquittal in limine without a reasoned order and merit. Some of those decisions are as follows;
The Hon''ble Supreme Court, in the case of
The Apex Court in the following cases insisted that an order refusing to grant leave must always be a speaking order and no leave petition be dismissed without a reasoned order. The cases are, (i) State of Maharashtra v. V. Vithal Rao (supra), (ii) Jawahar v. Naresh (supra), (iii) The
In the case of Goyal Enterprises v. The State, reported in 2008 Cri LJ 1923 (SC), where the Leave Petition was dismissed summarily, the Apex Court held summary disposal of the application without assigning reasons is improper and unjust.
To sum up, according to the Apex Court, Leave Petition against an order of acquittal cannot be dismissed summarily, by a non-speaking order and without assigning any reason.
There is no controversy once leave to appeal against an order of acquittal is granted, the Admission of Appeal is almost automatic for the simple reason, both the petition for Leave to Appeal against acquittal and the appeal against acquittal are based on selfsame grounds.
9. If we now closely examine the scheme envisage by the Code of Criminal Procedure (hereinafter referred to as Code) we find, the Code makes no distinction between the power of the Appellate Court while dealing with an appeal arising out of an order of conviction or an order of acquittal. The procedure governs and regulates the hearing of appeal both against conviction and acquittal are identical and the power of the Appellate Court in dealing with both such appeals in essence are also same. Needless to mention, a Court while dealing with an appeal against acquittal possesses all the powers and nothing less than the power it possesses while hearing an appeal against an order of conviction. However, while dealing with an order of acquittal the Court consistently follows an unwritten rule of adjudication that order of acquittal shall not be interfered with and be upset unless the approach of the Trial Court in dealing with the evidence is manifestly erroneous, the material evidence clinching the issues are overlooked and the conclusion drawn are wholly unreasonable and perverse.
The provisions of Section 384 of the Code empowers an Appellate Court to dismiss an appeal summarily. A plain reading of the said provisions, it is abundantly clear no appeal can even be dismissed summarily unless the Appellant or his pleader has had a reasonable opportunity of being heard in support of the same and before the dismissal of the appeal the Lower Court Records be called for and examined. Similarly, the provisions of Sections 385 and 386 of the Code prescribe the procedure for hearing the appeals not dismissed summarily and the powers of Appellate Court. The said provisions clearly provides that both in case of appeal against conviction and appeal against acquittal, the appeal can only be disposed of after perusal of the records and hearing the Appellant or his pleader and the Public Prosecutor. The law therefore does not envisage the dismissal of the appeal for default simpliciter or for non-prosecution, be that an appeal against conviction or an acquittal but only contemplates disposal on merit after perusal of the records and hearing the parties. In our opinion even in case of an appeal against an order of acquittal, the law as laid down by the Hon''ble Apex Court in the case of Bani Singh and Ors. v. State of U.P. (supra) shall squarely apply.
Last but not the least, following the ratio of Bani Singh and Ors. v. State of U.P. (supra), the Apex Court in the case of Madan Lal Kapoor v. Rajiv Thapar and Ors. (supra), held the same reasoning applies to criminal revision and even no criminal revision can also be dismissed for default.
In the result, the impugned order of dismissal of appeal is set aside and this criminal revisional application is allowed. The Petitioner shall have the liberty to take steps in accordance with law within a week from the date of obtaining the certified copy of this Judgment.
Criminal Section is directed to deliver urgent Photostat certified copy of this judgment to the parties, if applied for, as early as possible.
J.N. Patel, C.J.
I agree
