Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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, 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 to secure the presence of the Appellant; in other words, t.hat 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 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 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 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 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, 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 Sh yam Deo Pandey neither proscribe the invocation of Section 482 of the CrPC nor opine that dismissal of an appeal under 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 in enunciating, inter alia, that the accused are duty bound to 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 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 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 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 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:- [2013) 14 S.C.R. 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 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 width and contours of that salient jurisdiction".
A Three-Judge 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 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 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 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, (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 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 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 decided on merits in the absence of the Appellant, the higher 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 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 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 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 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 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 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.