Biju, S/o Sankaran v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2017-01-31
Court Decision / Holding: Revision petition allowed; setting aside the appellate court’s judgment; matter remitted to the appellate court for disposal of the appeal afresh in accordance with law, affording reasonable opportunity to be heard, with an order to dispose of the appeal within four months from the appearance date.
Final Disposition: Revision petition allowed; appellate judgment set aside; remitted for fresh disposal on merits in accordance with law; matter to be disposed within four months; appearance fixed for 10.03.2017.

Parties to the Case

Appellants / Petitioners

Biju, S/o Sankaran

Respondents

State of Kerala, rep by Public Prosecutor, High Court of Kerala Ernakulam-682 031

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri Zubair Pulikkool

Counsels for Respondents

• Public Prosecutor M.V. Anandan

Case Synopsis & Summary

This is a criminal revision petition before the Kerala High Court, heard by a single judge. The petitioner, Biju, was convicted by a trial court under sections 279 and 304A IPC and sentenced accordingly. The Sessions Court, in Crl. Appeal No. 298/2011, dismissed the appeal on 06-07-2012, not on merits, but on the ground that the accused failed to execute a bond to suspend the sentence and deposit the fine as directed. The petitioner challenged the appellate disposal, arguing that since the appellate court did not decide on the merits, the judgment cannot be sustained. The core legal question is whether an appellate court may dismiss an appeal for non-prosecution without following Sections 385 and 386 CrPC when not dismissing summarily under Section 384. The court cites Bani Singh and Harjinder Singh as authorities that the Code contemplates disposal of an appeal on merits and not dismissal for non-prosecution. It concludes that the appellate court had no power to dismiss the criminal appeal without following Sections 385 and 386, and that the sentence must be executed if bond is not executed. Accordingly, the revision petition is allowed, the appellate judgment is set aside, and the matter is remitted for fresh disposal on merits in accordance with law, with directions to expeditiously proceed within four months.

Provisions of Law Cited

Section 279 IPCSection 304A IPCSection 384 CrPCSection 385 CrPCSection 386 CrPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that since the appellate disposal was not on merits, the judgment of the appellate court cannot be sustained. The appellate court’s reliance on non-execution of the bond to suspend sentence to dismiss the appeal is contrary to the mandate of Sections 385 and 386 CrPC. If bond is not executed, the proper course is to dispose of the appeal on merits or remand for fresh disposal, rather than summarily dismissing the appeal.

Contentions of Respondents

Not explicitly stated in the document; the court addresses the petitioner’s arguments and the legal framework governing dismissal and disposal of appeals under CrPC.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Bani Singh and Others v. State of U.P.	AIR 1996 SC 2439; 1996 KHC 333	Positive	Cited with approval to support the proposition that Sections 385 and 386 CrPC do not contemplate dismissal of an appeal for non-prosecution and that disposal must be on merits.
Harjinder Singh v. State of Punjab	2010(13) SCC 533; 2010 KHC 4590	Positive	Quoted with approval to reaffirm the principle from Bani Singh that appeals should be disposed on merits and not dismissed for non-prosecution under CrPC.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 31ST DAY OF JANUARY 2017/11TH MAGHA, 1938** **Crl.Rev.Pet.No. 1640 of 2012 () --------------------------------** **AGAINST THE JUDGMENT IN CRA 298/2011 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 06-07-2012** **AGAINST THE ORDER/JUDGMENT IN CC 247/2006 of J.M.F.C.,VADAKARA DATED 06-04-2011** **-------------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------** **BIJU, S/O.SANKARAN, KUZHICHAL MALAYIL HOUSE, VILLIAPPALLY VATAKARA TALUK.** **BY ADV. SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **----------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI.M.V.ANANDHAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **STK** ## **Crl.R.P.No.1640 of 2012** -2- **B. SUDHEENDRAKUMAR, J. -------------------------------C.R.R.P. No.1640 of 2012** **----------------------------------** Dated this the 31[st] day of January, 2017 ## **ORDER** The revision petitioner was convicted and sentenced by the trial court under Sections 279 and 304(A) IPC. Against the said conviction and sentence, the revision petitioner filed appeal before the Sessions Court, Vatakara. The Sessions Court, as per judgment dated 06.07.2012 in Crl. Appeal 298/2011 dismissed the appeal without going into the merits of the case on the reason that the revision petitioner did not execute the bond to suspend the execution of sentence as directed by the Sessions Court. 2. Heard. 3. The learned counsel for the revision petitioner has argued that since the disposal of the appeal ## **Crl.R.P.No.1640 of 2012** -3- by the appellate court was not on merits, the judgment of the appellate court cannot be sustained. The appellate court observed that the revision petitioner was directed to execute the bond and deposit the fine amount as a condition precedent to suspend the execution of sentence awarded by the trial court. However, the revision petitioner did not execute the bond or deposit the amount as directed by the appellate court. In the said circumstances, the appellate court confirmed the conviction and sentence passed by the trial court without going into the merits of the case. 4. Now the question to be considered is to whether the appellate court has power to dismiss the appeal without complying with the mandates under Sections 385 and 386 of the Code, if the appellant fails to execute the bond for suspending the execution of sentence passed by the trial court, ignoring the direction of the appellate court in this regard. The power of the appellate court to dismiss the **Crl.R.P.No.1640 of 2012** appeal summarily is provided under Section 384 of the Code. Once the appeal is not dismissed summarily under Section 384 of the Code, the appellate court has to follow the procedure prescribed under Sections 385 and 386 of the Code. The plain language of Section 385 of the code makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it must call for the records from the lower court. Section 386 of the code mandates that after the records are received, the appellate court may dispose of the appeal after hearing the appellant or his counsel and the Public Prosecutor, if he appears. Therefore, the plain language of Sections 385 and 386 does not contemplate dismissal of the appeal without going into the merits of the case. On the contrary, the Code envisages the disposal of the appeal only on merits if the appeal is not dismissed summarily under Section 384 of the Code. The law clearly expects the appellate court to dispose of the appeal ## **Crl.R.P.No.1640 of 2012** -5- on merits. 5. Three Judge Bench of the Hon’ble Supreme Court in Bani Singh and Others. v. State of U.P. [AIR 1996 SC 2439: 1996 KHC 333] held that the plain language of Sections 385 and 386 does not contemplate dismissal of the appeal for non-prosecution simpliciter and on the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the records. The Apex Court in Harjinder Singh v. State of Punjab [2010(13) SCC 533: 2010 KHC 4590] quoted the decision in Bani Singh (supra) with approval and held that Sections 385 and 386 do not contemplate dismissal of the appeal for non-prosecution. 6. In this case, the appellate court noticed that the revision petitioner did not execute the bond for suspending the execution of sentence as directed by the appellate court. That does not empower the court to dismiss the appeal without going in to the merits of the case. Even if **Crl.R.P.No.1640 of 2012** the appellant ignores the direction of the appellate court in the matter of executing the bond for suspending the execution of the sentence awarded by the trial court, the appellate court has no power to dismiss the criminal appeal without following the mandates under Sections 385 and 386 of the Code, once the appeal is not dismissed summarily under Section 384 of the Code. If the party fails to execute the bond for suspending the execution of sentence as directed by the appellate court, the sentence awarded by the trial court will have to be executed immediately. In this case, the appellate court could have directed the trial court to execute the sentence, if the revision petitioner was not prepared to execute the bond as directed by the appellate court. However, instead of doing so, the appellate court disposed of the appeal without going into the merits of the case, which is not contemplated under Sections 385 and 386 of the Code. Since the disposal of the appeal in this case by ## **Crl.R.P.No.1640 of 2012** -7- the appellate court was not as envisaged under Sections 385 and 386 of the Code, the judgment of the appellate court cannot be said to be legal, proper and correct and consequently, the same cannot be sustained. 7. In the result, this revision petition stands allowed, setting aside the judgment of the appellate court and the matter is remitted to the appellate court for the disposal of the appeal afresh in accordance with law, affording reasonable opportunity to the learned counsel for the revision petitioner or the Amicus Curiae, as the case may be, of being heard. 8. This being a matter of the year 2006, the appellate court is directed to dispose of the appeal as expeditiously as possible and at any rate within four months from the date fixed for the appearance of the revision petitioner before the appellate court. The revision petitioner shall appear before the ## **Crl.R.P.No.1640 of 2012** -8- appellate court on 10.03.2017. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//