SC: No ground to dismiss an appeal against conviction, already admitted for final hearing, for non-prosecution without adverting to merits

 

Read Judgment

The issue for consideration in this appeal was whether an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 can be dismissed on the ground that the accused is absconding.

Brief Facts:

The appellant was convicted for the offences punishable under Sections 302 and 120B of the Indian Penal Code (IPC) and Section 27(1) of the Arms Act, 1959. He filed an appeal before the High Court of Patna. On 29th October 2009, a Division Bench of the High Court admitted the appeal for hearing. When the application for suspension of sentence filed by the appellant came up before a Division Bench of the High Court, itwas brought to the notice of the Court that the appellant wasabsconding. Thereafter, a non-bailable warrant was issued against theappellant. As the appellant was absconding, the Director General ofPolice announced a reward to the informant who could report thewhereabouts of the appellant.By the impugned judgment and order dated 25th August 2015,a Division Bench of the High Court of Patna dismissed the appealwithout adverting to the merits of the appeal on the ground that theappellant was absconding. 

SC’s Observations:

The issue for consideration before the SC was whether the High Courtwas justified in dismissing an appeal against conviction for non-prosecution? 

SC observed that the High Court High Court relied upon its earlier decision in the case of Daya Shankar Singh &Anr. v. State of Biharwhich was based on Rule 8 of Chapter XII of the Patna High Court Rules which predicates that no appeal against conviction shall be heard for admission unless the accused has surrendered to the order of the Court below convicting him to a sentence of imprisonment except in a case where the appellant has been released on bail by the trial court after convicting him.

SC stated that the appeal was already admitted on 29th October 2009. Therefore, the said rule,which applies to the pre-admission stage, was not applicable in this case.

SC stated that “the anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits. Therefore, the impugned judgment will have to be set aside and the appeal will have to be remanded to the High Court for consideration on merits.” 

SC Held:

After evaluating submissions made by both the parties the SC held that“Considering the fact that the appeal against conviction under Section 302 of IPC is of the year 2009, necessary priority deserves to be given to the disposal of the appeal. We, therefore, request the High Court to ensure that appeal is disposed of as expeditiously as possible, preferably within a period of six months.”

Case Title: Dhananjay Rai v. State of Bihar 

Bench: J. Abhay S. Oka and J. M.M. Sundresh

Citation: CRIMINAL APPEAL NO.803 of 2017

Decided on: 14^th July, 2022 

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