P. H. Salim v. Joji Jose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **Crl.Rev.Pet.No.1235 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRA 60/2017 DATED 28-01-2019 OF ADDITIONAL DISTRICT COURT, PALA IN ST 112/2011 DATED 1403-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, PALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **P.H.SALIM AGED 61 YEARS S/O.HAMEED RAWTHER, PADINJAREOTTATHU PUTHEN VEETTIL HOUSE, RAMAMANGALAM KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.SOJAN MICHEAL** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 JOJI JOSE, S/O.JOSE, AVIMOOTTIL HOUSE, PALA KARA, MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686575. 2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **R1 BY ADV. SRI.P.C.HARIDAS SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON 03.12.2019 PASSED THE FOLLOWING:** Crl.R.P.No.1235/2019 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1235 of 2019 ----------------------------------------------Dated this the 3[rd] day of December, 2019 ## **O R D E R** In law, as in life, a short cut may prove to be a wrong cut ( **Raj Kapoor v. State : AIR 1980 SC 258** ). 2. An appeal filed under Section 374(3)(a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') by an accused against conviction of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, stands dismissed by the learned Additional Sessions Judge in the following manner: _“Appellant seeks time for hearing. Listed matter. No other reasons stated. Appeal is dismissed for default.”_ 3. It is quite painful and disheartening to note that even experienced Sessions Judges dismiss appeals filed by accused Crl.R.P.No.1235/2019 3 against conviction in such fashion. 4. The appeal which stands dismissed had been filed by the petitioner, who is the accused, in the case S.T.No.112/2011 on the file of the Court of the Judicial First Class Magistrate-II, Pala. Learned Magistrate convicted the petitioner for the offence punishable under Section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.9,80,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 5. Learned counsel for the first respondent and the learned Public Prosecutor agree with the submission of the learned counsel for the petitioner that, the manner in which the appeal was dismissed by the learned Additional Sessions Judge, is illegal and improper. 6. The law on the point stands settled by a three Judge Bench of the Supreme court in **Bani Singh v. State of U.P : AIR 1996 SC 2439** . After a survey of the provisions contained in Chapter XXIX of the Code with regard to appeals, the Apex Court has held as follows: Crl.R.P.No.1235/2019 4 _“The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. 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. The law, therefore, does not envisage the dismissal of the appeal for default or non prosecution but only contemplates disposal on merits after perusal of the record”._ The Supreme Court proceeded further and held as follows: _“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._ Crl.R.P.No.1235/2019 5 _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 Section 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 Section 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 Sections 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,_ Crl.R.P.No.1235/2019 6 _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. ..... Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted”._ (emphasis supplied) 7. The principles laid down by the Apex Court in the aforesaid decision are : (1) When an appeal is not summarily dismissed under Section 384 of the Code, the appellate court shall not dismiss an appeal for non-prosecution simpliciter without examining the merits (2) The appellate court is not bound to adjourn the appeal if both the appellant and his counsel are absent (3) The appellate court may, as a matter of prudence Crl.R.P.No.1235/2019 7 or indulgence, adjourn the matter but it is not bound to do so (4) The appellate court can dispose of the appeal on merits after perusing the record and judgment of the trial court (5) If the accused is in jail and if his lawyer is absent, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused or his lawyer. If the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so (6) If the case is decided on merits in the absence of the appellant, the higher court can remedy the situation, if there has been a failure of justice. 8. In the case on hand, learned Additional Sessions Judge did not dispose of the appeal on merits and therefore, the impugned judgment is liable to be set aside. 9. In the result, the revision petition is allowed. The impugned judgment is set aside. The appeal is remitted to the appellate court for fresh disposal, in accordance with law, as expeditiously as possible, at any rate within a period of three months from today. The revision petitioner as well as the first Crl.R.P.No.1235/2019 8 respondent shall appear before the appellate court on 18/12/2019 without further notice. (sd/-) **R.NARAYANA PISHARADI, JUDGE** ## **jsr** True Copy PS to Judge