[Resolved]  World Abacus Academy — IN THE HIGH COURT OF DELHI AT NEW DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Hearing : 15th July, 2008
Date of Decision : 01st August, 2008
MUKESH
Through Mr.P.K. Dey, Amicus Curiae
and Ms. Purnima Sethi, Adv.
Through Mr. Manoj Ohri, Adv.
2. Crl. A. 189/1992
SURESH
through Mr.P.K. Dey, Amicus Curiae
and Ms. Purnima Sethi, Adv.
through Mr. Manoj Ohri, Adv.
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE V.K. SHALI
VIKRAMAJIT SEN, J.
JUDGMENT
“By not punishing the guilty and punishing those not deserving to be
punished, by arresting those who ought not to be arrested and not arresting
those who ought to be arrested; and by failing to protect subjects from
thieves etc. through these causes “ decline, greed and dis-affection are
produced among the subjects. It is punishment alone which maintains both
this world and the next.” “ Kautiliya Arthasastra by Prof. V.K. Gupta “....not
that he is punished because he did wrong, for that which is done can never
be undone, but in order that in future times, he, and those who see him
corrected, may utterly hate injustice, or at any rate abate much of their evil-
doing”. “ Plato”s Laws “Crucify me, O judge, crucify me “ but pity me! And
then I will go of myself to be crucified, for it”s not merrymaking I seek but
tears and tribulation!” “ Crime and Punishment by Fyodor Dostoevsky “By
enforcing a public system of penalties government removes the grounds for
thinking that others are not complying with the rules. For this reason alone, a
coercive sovereign is presumably always necessary, even though in a well-
ordered society sanctions are not severe and may never need to be imposed.
Rather, the existence of effective penal machinery serves as men's security
to one another”. “ A Theory of Justice by Rawls 1. We are concerned with
the rampant manipulation and misuse of the statutory right to appeal by
convicts who quite palpably take recourse to filing of appeals with the sole
objective of defeating justice by obtaining bail and thereafter escaping out of
the reach of law. Jural compulsions dictate that this species of appeals
should be consciously dismissed on the ground of occasioning gross abuse
of judicial process and an annihilation of the ends of justice. This approach
has found favour with the High Courts of Bombay and Patna. It is necessary
to distinguish between dismissal of appeals in this set of circumstances,
namely, where steps have been taken for securing the presence of the
appellant by coercive means, including the issuance of non-bailable warrants
or proceedings for declaring the appellant a proclaimed offender by recourse
to Part C of Chapter VI of the Code of Criminal Procedure, 1973 (CrPC for
short) on the one hand, and instances where the appellant may incidently not
be present when the appeal is called on for hearing. In other words, the
malaise which we have in perspective is the wilful withdrawal of the convict
from the appellate proceedings initiated by him. Looking to the gravity and
general importance of this conundrum we have requested Mr. P.K. Dey,
Advocate to assist us as amicus curiae and supplement or oppose, as the case
may be, the arguments of Ms. Purnima Sethi and of Mr. Manoj Ohri, learned
counsel for the State.
2. We shall first deal with legal provisions on this subject which are to be
found principally in Chapter XIX of the CrPC. Section 372 reiterates the
general principle of law that an appeal is not a right unless it is granted by a
statute. This Section states that no appeal shall lie from any judgment or
order of a Criminal Court except as provided for by the CrPC or by any
other law for the time being in force. Section 374(2) thereafter stipulates that
any person convicted in a trial held by a Sessions Judge or an Additional
Sessions Judge or in a trial held by any other Court in which a sentence of
imprisonment for more than seven years has been passed against him or
against any other person convicted at the same trial, may appeal to the High
Court. Although it may be uncommon, there are instances where appeals are
not preferred by a convict who has received a sentence of incarceration of a
period of seven years or more than seven years. These provisions must
immediately be compared with the preceding Chapter-XVIII containing a
fasciculus dealing with death sentences which become efficacious only on
being confirmed by the High Court. The proviso to Section 368 enjoins that
an order of confirmation shall not be made until the period allowed for
preferring an appeal has expired, or, if an appeal is presented within such
period, until such appeal is disposed of. The presence or absence of the
accused/convict, in the cases of Death References, will make no material
difference since the High Courts would invariably be duty-bound to give the
matter its utmost and undivided attention. Since it is conceivable that an
appeal may not be filed in the High Court by a convict who is to undergo
more than seven years imprisonment, the efficacy, legal correctness and
propriety of such a sentence is not dependent on receiving the imprimatur of
the High Court.
3. Section 378 of the CrPC declares inter alia that no appeal to the High
Court against an order of acquittal shall be entertained except with the leave
of the High Court. Accordingly, appeals against acquittal are distinct from
all others. Section 383 prescribes that if the appellant is in jail he may
present his appeal to the officer in charge of the jail who shall thereupon
forward such a petition together with copies thereof to the appropriate
Appellate Court. Section 384 enables the dismissal of appeals summarily or
in limine provided the appellant or his pleader has had a reasonable
opportunity of being heard in support of the same. We shall revert to the use
of the words “reasonable opportunity of being heard” later in this Judgment.
Where appeals are not dismissed summarily, Section 385 prescribes the
issuance of notices to the appellant or his pleader by the State Government
indicating the time and place when the appeal will be heard. While it is
optional to the Appellate Court to call for the records of the case at the stage
of the initial hearing of an appeal under Section 384 by virtue o[censored]se of the
word “may”, it is mandatory for it to do so at the time of the final hearing on
4. Section 386 of the CrPC is of importance for the purposes before us. It
requires the Appellate Court to peruse the records, and hear the appellant or
his pleader if he appears and thereafter may, if it considers that there is no
sufficient ground for interfering, dismiss the appeal. In the case of an appeal
from an order of acquittal (State Appeals in jural parlance) it may reverse the
order and direct that further inquiry be made, or that the accused be retried
or committed for trial. Even in the case of an appeal from an order of
acquittal the Appellate Court is competent to find him guilty and pass
sentence on him according to law. The proviso to this Section prescribes that
the sentence shall not be enhanced unless the accused has had an opportunity
of showing cause against such an enhancement thereby mandating that an
accused must be present and be heard if an order of acquittal is to be
upturned. It appears to us that whilst the Legislature has cast an obligation
on the Appellate Court to decide an appeal on its merits only in the case of
Death References, regardless of whether an appeal is preferred by the
5. Last, but not least in our appreciation of the law, Section 482 of the CrPC
stands in solitary splendour. It saves the inherent power of the High Court. It
enunciates that nothing in the CrPC shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be necessary
firstly to (a) “give effect to any order under the CrPC”, words which are not
to be found in the Code of Civil Procedure, 1908 (“CPC”). While exercising
inherent powers, therefore, the High Court, in its criminal jurisdiction, can
take all necessary steps for compliance of its orders. The High Court need
not, therefore, resort to the tenets of Contempt of Court. Section 482,
therefore, makes the Criminal Court much more powerful than the Civil
Court so far as obedience to orders is concerned. Secondly, Section 482
clarifies that the CrPC does not circumscribe the actions available to the
High Court to prevent abuse of its process from the beginning of its
proceedings till their very end. Judicial process includes compelling a
respondent to appear before it. When the Court is faced with a recalcitrant
appellant/convict who shows no interest in his appeal, none of the Section in
Chapter-XXIX of the CrPC dealing with appeals would preclude it from
dismissing the appeals. Whenever such orders are passed, it would have the
effect of making it clear to all concerned that intentional and repeated failure
to prosecute the appeal would inexorably lead not merely to the cancellation
of bail but to the confirmation of the conviction and sentence because of the
dismissal of the appeal. Thirdly, none of the provisions of the CrPC can
possibly limit the power of the High Court to otherwise secure the ends of
justice. It is not possible to define the concept of “justice”. Suffice it to say
that it encompasses not just rights of the accused and the convict. It also
includes law abiding section of society who look towards the Courts as vital
instruments for preservation of peace and curtailment of crime by means of
imposing punishment on those who break the law. If convicts can
circumvent the rigors of their conviction, peace and harmony in society will
become an illusion. Section 482 emblazons the fact that there is a difference
between preventing the abuse of the jural process and the securing of the
ends of justice. In our analysis, Section 482 of the CrPC has not been given
its due regard and importance, and as a consequence, the rampant practice of
filing appeals only for frustrating a sentence given by a criminal court has
been fine- tuned. It has led not merely to an explosion of dockets in criminal
courts, already afflicted by an adverse ratio of judges to the population, but
has given fillip to the filing of appeals by convicts whose objective is not of
convincing the Appellate Court that they have been dealt with unfairly or
illegally, but to escape from the punishment that their crime has invited.
6. In Shyam Deo Pandey “vs- State of Bihar, 1971(1) SCC 859 : AIR 1971
SC 1606 the Apex Court was called upon to construe Section 423 of the old
CrPC in the wake of the dismissal by the High Court of an Appeal on the
very next date of hearing after the issuance of notice. The High Court had
recorded “ “No one appears to press the appeal. On perusal of the judgment
under appeal, I find no merit in the case. It is accordingly dismissed”.
7. An application for restoration of the appeal filed on the same day was also
rejected for not disclosing sufficient grounds for recalling the dismissal
orders. The facts before us, which are common to an ever increasing
multitude of appeals, are significantly different inasmuch as this Court has
employed every available method to secure the presence of the
convict/accused before it with the objective of giving content and meaning
to his right to be heard; and only thereafter has considered the propriety and
expediency of the dismissal of the appeal under Section 482 of the CrPC. It
is at least arguable that the right to be heard has meaning only if the person
concerned is actually given a full audience, or he is allowed to be heard
through his chosen representative. Theoretically, therefore, the right is
frustrated whenever the Court appoints an advocate as amicus curiae. It
needs to be underscored that the ratio decideni of Shyam is that the records
of the lower court must be before the Appellate Court if the condition of
“perusal” is to be complied with.
8. On this subject, the oft-quoted decision of the Supreme Court is that of
Bani Singh “vs- State o[censored].P., (1996) 4 SCC 720 : AIR 1996 SC 2439. Their
Lordships observed that the law posits that if the appeal is not dismissed
summarily, then the appellate court shall, after perusing the records, hear the
appellant or his pleader. The obvious pre-condition is that the notice shall be
issued to the appellant. The Supreme Court clarified that “the law does not
enjoin that the court shall adjourn the case if both the appellant and his
lawyer are absent. ..... It can dispose of the appeal after perusing the record
and 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 hear 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”. The Apex Court
was not seized of a matter of the wilful abscondance of the appellant. In
Bani Singh 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 Singh
overruled Ram Naresh Yadav “vs- State of Bihar, AIR 1987 SC 1500 which
had laid down that a criminal appeal could be disposed of on merits only
after hearing the accused. En passant, the Court had observed that in order to
enforce discipline the appeal could be dismissed for non-prosecution. In both
these cases it is apparent that the High Court had not taken any steps to
secure the presence of the appellant; in other words, that 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 Three-Judge Coordinate Bench in Kishan Singh “vs- State
o[censored].P., (1996) 9 SCC 372 decided four years previously on 2.11.1992.
Having carefully read through both the Judgments we think it important to
clarify that Bani Singh does not deal or reflect upon the problem before us,
namely, the options open to the Court which is faced with a recalcitrant
appellant who is not prosecuting the appeal, having already violated the bail
orders granted in his favour. Precisely, Kishan Singh deals with the options
open to the Appellate Court at the preliminary hearing of an appeal.
Nevertheless, the observations that have been highlighted by us in the
passage below are pithy so far as the present case is concerned: It will be
seen that the very opening words of the Section require the Appellate Court
to examine the petition of appeal and copy of the impugned judgment in
considering whether there is any sufficient ground for interfering with the
same. Sub-section (2) provides that the Court may call for the records of the
case even at the preliminary stage. It is, thus clear, that the duty of the
appellate court to examine the petition of appeal and the judgment under
challenge and to consider the merits of the case before dismissing the appeal
summarily is not dependent on the appellant or his counsel appearing before
the Court to press the appeal. As soon as a petition of appeal is presented
under Section 382 or 383 it becomes the duty of the appellate court to
consider the same on merits, even in the absence of the appellant and his
counsel before dismissing the same summarily. In a case where the appellant
has been sentenced to imprisonment and he is not in custody when the
appeal is taken up for preliminary hearing, the Appellate Court can require
him to surrender, and if the appellant fails to obey the direction, other
considerations may arise, which may render the appeal liable to be dismissed
without consideration of the merits, but that is altogether a different matter
with which we are not concerned in the present case. Here, the appellant's
advocate was not present to argue the appeal when the case was called out
and in the restoration application filed subsequently, attempt was made to
explain the default, which, of course, did not succeed. The question is,
whether in the circumstances, the High Court could have dismissed the
appeal for default, and if not, whether the prayer for restoration should have
been allowed. As is manifest from the provisions of Criminal Procedure
Code, referred to above, the High Court should have either examined the
appellant's petition of appeal and the judgment under challenge, itself or
appointed a counsel to assist the Court, but could not have proceeded to
dismiss the same on the ground that the Advocate for the appellant was not
present. The position of a criminal appeal is not the same as in a civil appeal
governed by the Civil Procedure Code. A comparison of the provisions of
Section 384 with those of Order 41, Rules 11 and 17 of the Civil Procedure
Code clearly brings out the difference. Rule 17, Order 41 of Civil Procedure
Code in express terms provides that an appeal may be dismissed on the
ground of absence of the appellant when the appeal is called out, and Rule
19 provides for its restoration on the appellant offering sufficient cause for
his non-appearance. In the case of a criminal appeal the corresponding
provisions are not to be found in the Code of Criminal Procedure. On the
other hand the Code in express terms requires the matter to be considered on
merits. Thus a criminal appeal cannot be dismissed for non-prosecution, and
this is the reason as to why the Criminal Procedure does not contain any
special provision like Order 41, Rule 19. The law was correctly laid down in
Shyam Deo Pandey and Ors. v. State of Bihar [1971] Suppl. SCR 133 a case
governed by the old Criminal Procedure Code. The position in this regard
remains the same under the new Code. Even earlier, the High Courts were
following this very principle is clear from the observations in Emperor v.
Balumal Hotchand and Ors. 39 Criminal Law Journal 890 and Ramesh Nanu
v. State of Gujarat 17 Gujarat Law Reporter 350. In Emperor v. Balumal
Hotchand and Ors. it was observed thus: ““.that the law requires that before
an Appellate Court dismisses an appeal summarily, it shall read a copy of
the judgment, and then, if there is no sufficient ground for interfering, it may
dismiss the appeal summarily. It was emphasized that the dismissal of the
appeal shall depend on the exercise by the Judge of his independent and
impartial mind after he has read a copy of the judgment, and not upon the
failure of the accused to press his appeal”.
9. Our research and analysis on this aspect of the law would be incomplete
without appreciating and assimilating the recent decision reported as
Dharam Pal “vs- State o[censored].P., 2008 I AD (SC) 597 : AIR 2008 SC 920 : JT
2008 (1) SC 172. The contention which was formulated on behalf of the
accused was whether a miscarriage of justice has been occasioned since the
Appellant was not served with a notice of the appeal by the High Court,
which nevertheless decided the appeal ex parte. Their Lordships referred to
and applied Bani Singh. Reference was also made to CrPC”s Chapter-XXIX
in general and Sections 385 and 386 in particular. It needs to be emphasised
that Section 482 of the CrPC was not even mentioned by learned counsel
before their Lordships. So far as the course of appellate hearings before the
High Court was concerned in Dharam Pal the learned counsel for the
Appellants had expressed their inability to argue the case before the High
Court. It was in those circumstances that their Lordships had perused the
impugned Judgment of the High Court, found it to be well-merited and
predicated on 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
parte”. Dharam Pal and for that matter Bani Singh or Shyam neither
proscribe the invocation of Section 482 of the CrPC nor opine that dismissal
of an appeal under Section 482, for good reasons which are lucidly spelt out,
is improper. It has not hitherto fore even been contended that Section 482 of
the CrPC should be applied to in circumstances of the wilful abscondance of
the appellant/convict in contumacious and deliberate disregard and violation
of the terms and conditions on which he was enlarged on bail. 10. The
discussion would not be complete without mentioning two Orders of the
Hon”ble Supreme Court, namely, Parasuram Patel “vs- State of Orissa,
(1994) 4 SCC 664 and Madan Lal Kapoor “vs- Rajiv Thapar, (2007) 7 SCC
623. However, 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
approach of dismissing the appeals only because the appellant or his counsel
were absent when the case was called on for hearing. Their Lordships were
not called upon to ruminate upon the curial malpractice which has now
become endemic in Criminal Courts, viz. the filing of appeals by convicts
with the obvious intent to frustrate and circumvent sentences passed by the
criminal courts. These appellants obtain orders from the Appellate Court,
enlarge themselves on bail and thereafter contumaciously and intentionally
abscond beyond the reach of justice. We cannot close our eyes to the reality
that less than 20 per cent prosecution are successful 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
avoided by convicts not by succeeding in having their conviction overturned
and reversed by the Appellate Court, but by going underground and
disappearing from society. We are convinced that the interests of society at
large are being repeatedly sacrificed for the exaggerated, if not misplaced
concern, for what is fashionably termed as “human right” of convicts.
Recent judgments of the Apex 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 and thereby 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
meagre numbers 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 societal needs. (See
State of Punjab “vs- Devans Modern Breweries Ltd., (2004) 11 SCC 26).
The criminal justice delivery system is being held to ransom by convicts
who have developed the devious and dishonest practice of escaping
punishment or sentence by filing appeals, obtaining bail and thereafter
disappearing beyond the reach of the arms of the law. They invariably
reappear only if the Appeal is decided in their favour. We are mindful of the
legal position that a reversal of a conviction by the Appellate Court even
enures to the benefit of a convict who has not chosen to file an appeal.(See
Arokia Thomas “vs- State of T.N., (2006) 10 SCC 542). Nobody should feel
discomfort in such an event, since the convict who has not filed an appeal is
legitimately deriving benefit from a fortuitous turn of events within the
judicial framework. The inherent powers under Section 482 of the CrPC,
which the Supreme Court has on several occasions expounded to have
existed from times immemorial, predating the present as well as the previous
CrPC, must be pressed into action lest the already fragile policing and
prosecuting branches of governance are made fully redundant.
11. In addition to the decisions of the Apex Court, we must also analyse
previous judgments of Coordinate Benches. In Appeals against acquittal
(which are commonly known as State Appeals) the respondents are required
to seek bail even though the presumption of their innocence stands fortified
by the failure of the prosecution to bring home their culpability. We do not
propose to ponder on all the possible jurisprudential complexities of
equating an acquitted person with an accused person facing trial.
Accordingly, the decision in State “vs- Ram Gopal,[protected] DLT
156(DB) does not cause us concern for the simple reason that it is not the
appellant who is the truant party. However, in Mohd. Tahir “vs- State, Crl.
A. 452/1997 it was the appellant who, subsequent to the suspension of his
sentence, failed to respond to the process of this Court. The concern of the
Division Bench was whether the Appeal could be taken up for hearing in his
absence or alternatively whether it could be dismissed for non- prosecution
as neither the appellant nor any counsel on his behalf had put in appearance.
Applying Bani Singh our learned Brothers concluded in the interlocutory
Orders dated 1.10.2004 that the prudent course would be to appoint an
amicus curiae to argue the appeal on behalf of the appellant. The Bench
briefly noted Lakshmandas Chaganlal Bhatia “vs- State, AIR 1968 Bombay
400 but did not cogitate upon the implications of Section 482 of the CrPC
and hence does not preclude or foreclose a wider consideration of the legal
nodus. Harbir Singh “vs- State,[protected] DLT 469(DB) and Ram Gopal
were decided by the Bench comprising Manmohan Sarin and Manju Goel,
JJ.. Even in Harbir Singh there is no discussion of the law, leave aside
Section 482 of the CrPC, as the Bench has recorded that “ “Before we end, it
is necessary to say that the appellant Harbir escaped prison by unlawful
means and has thereafter not been arrested. This Court in Mohd. Tahir has
held an appeal in circumstances where the accused in absconding, can be
decided by the Court in the absence of the appellant”. As in the case of
Mohd. Tahir the Bench hearing the State Appeal in Ram Gopal had only
discussed Shyam, Ram Naresh Yadav and Bani Singh. Section 482 of the
CrPC does not even find mention, even though it had been discussed by the
Division Bench of the Bombay High Court in Lakshmandas.
12. In the context of the decisions of the Supreme Court and of this Court we
would have avoided further cogitation had the matter been res integra. This
has necessitated a detailed study of the concept of stare decisis.
13. Bhavnagar University “vs- Palitana Sugar Mills Pvt. Ltd., 2003(2) SC
111 cautions that “ “a little difference in facts or additional facts may make a
lot of difference in the precedential value of a decision”. In Director of
Settlement, A.P. “vs- M.R. Apparao, (2002) 4 Supreme Court Cases 638, a
Three Judge Bench has opined that “Article 141 of the Constitution
unequivocally indicates that the law declared by the Supreme Court shall be
binding on all courts within the territory of India. The aforesaid Article
empowers the Supreme Court to declare the law. It is, therefore, an essential
function of the Court to interpret a legislation. The statements of the Court
on matters other than law like facts may have no binding force as the facts of
two cases may not be similar. But what is binding is the ratio of the decision
and not any finding of facts. It is the principle found out upon a reading of a
judgment as a whole, in the light of the questions before the Court that forms
the ratio and not any particular word or sentence. To determine whether a
decision has “declared law” it cannot be said to be a law when a point is
disposed of on concession and what is binding is the principle underlying a
decision. A judgment of the Court has to be read in the context of questions
which arose for consideration in the case in which the judgment was
delivered. An “obiter dictum” as distinguished from a ratio decidendi is an
observation by the Court on a legal question suggested in a case before it but
not arising in such manner as to require a decision. Such an obiter may not
have a binding precedent as the observation was unnecessary for the
decision pronounced, but even though an obiter may not have a binding
effect as a precedent, but it cannot be denied that it is of considerable
weight. The law which will be binding under Article 141 would, therefore,
extend to all observations of points raised and decided by the Court in a
given case”. The Constitution Bench has also reiterated this view in Islamic
Academy of Education “vs- State of Karnataka, (2003) 6 SCC 697 =
2003(6) Scale 325, viz. that the ratio decidendi of a judgment can be
obtained only from a reading of its entirety. The opinion of the Apex Court
in Bharat Petroleum Corporation Ltd. “vs- N.R. Vairamani, AIR 2004 SC
778 is in similar vein. Their Lordships observed that “ “Observations of
Courts are neither to be read as Euclid”s theorems nor as provisions of the
statute and that too taken out of their context. These observations must be
read in the context in which they appear to have been stated. Judgments of
Courts are not to be construed as statutes”. This is also the opinion of the
Court in Punjab National Bank “vs- R.L.Vaid, (2004) 7 SCC 698. In State of
Gujarat “vs- Akhil Gujarat Pravasi, AIR 2004 SCC 3894, the Hon'ble
Supreme Court has observed that “any observation made during the course
of reasoning in a judgment should not be read divorced from the context in
which they were used”. In Zee Tele Films “vs- Union of India, AIR SCW
2005 2985, the Apex Court has unequivocally declared that “a decision is
not an authority for the proposition which did not fall for its consideration.”
In M/s A-One Granites “vs- State o[censored].P., AIR 2001 SC 1203: (2001) 3 SCC
537 it had been contended that the controversy was covered on all fours by a
previous decision of the Court. The contention was rejected in these words-
This question was considered by the Court of Appeal in Lancaster Motor Co.
(London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, and it was laid down that
when no consideration was given to the question, the decision cannot be said
to be binding and precedents sub silentio and without arguments are of no
moment. Following the said decision, this Court in the case of Municipal
Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101: (AIR 1989 SC
38) observed thus (at p. 43 of AIR): “In Gerard v. Worth of Paris Ltd. (K),
(1936) 2 All ER 905 (CA), the only point argued was on the question of
priority of the claimant's debt, and on this argument being heard, the Court
granted the order. No consideration was given to the question whether a
garnishee order could properly be made on an account standing in the name
of the liquidator. When, therefore, this very point was argued in a
subsequent case before the Court of Appeal in Lancester Motor Co.
(London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, the Court held itself not
bound by its previous decisions. Sir Wilfrid Greene, M.R., said that he could
not help thinking that the point now raised had been deliberately passed sub
silentio by counsel in order that the point of substance might be decided. He
went on to say that the point had to be decided by the earlier Court before it
could make the order which it did; nevertheless, since it was decided
“without argument, without reference to the crucial words of the rule, and
without any citation of authority”, it was not binding and would not be
followed. Precedents sub silentio and without argument are of no moment.
This rule has ever since been followed.” In State o[censored].P. v. Synthetics and
Chemicals Ltd., (1991) 4 SCC 139, reiterating the same view, this Court laid
down that such a decision cannot be deemed to be a law declared to have
binding effect as is contemplated by Article 141 of the Constitution of India
and observed thus: “A decision which is not express and is not founded on
reasons nor it proceeds on consideration of issue cannot be deemed to be a
law declared to have a binding effect as is contemplated by Article 141.” In
the case of Arnit Das v. State of Bihar, 2000 (5) SCC 488 : (2000 AIR SCW
2037 : AIR 2000 SC 2264 : 2000 Cri LJ 2971), while examining the binding
effect of such a decision, this Court observed thus (Para20): “A decision not
expressed, not accompanied by reasons and not proceeding on a conscious
consideration of an issue cannot be deemed to be a law declared to have a
binding effect as is contemplated by Article 141. That which has escaped in
the judgment is not the ratio decidendi. This is the rule of sub silentio, in the
technical sense when a particular point of law was not consciously
determined.” Thus we have no difficulty in holding that as the question
regarding applicability of Rule 72 of the Rules having not been even referred
to, much less considered by this Court in the earlier appeals, it cannot be
said that the point is concluded by the same and no longer res integra and
accordingly this Court is called upon to decide the same.
14. The frequently quoted opinion of the House of Lords in Quinn “vs-
Leathem, 1901 AC 495 : (1900-3) All ER Rep 1 is to the effect that “every
judgment must be read as applicable to the particular facts proved or
assumed to be proved .... The other is that a case is only an authority for
what is actually decides”. These quotations have been reiterated in Goodyear
India Ltd. -vs- State of Haryana, (1990) 2 SCC 71 and State of Orissa -vs-
Sudhansu Sekhar Misra, AIR 1968 SC 647. In the latter case, the Court
explicitly opined that “a decision on a question which has not been argued
cannot be treated as a precedent”. Their Lordships, in turn, referred back to
the previous opinion in Rajput Ruda Meha -vs- State of Gujarat, 1980 SC
1707 in which it had similarly been stated that where an issue has neither
been raised nor argued any decision by the Court, even after 'pondering over
the issue in depth', would not be a binding precedent. Similar observations
have been made by the Constitution Bench in Padma Sundara Rao -vs- State
of T.N., 2002(3) SCC 533, as is evident from the following extract: “Courts
should not place reliance on decisions without discussing as to how the
factual situation fits in with the fact situation of the decision on which
reliance is placed. There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the facts of a
particular case, said Lord Morris in Herrington v. British Railways Board,
(1972) 2 WLR 537. Circumstantial flexibility, one additional or different
fact may make a world of difference between conclusions in two cases.
15. A profound and perspicuous analysis of the principle of stare decisis is to
be found in State of Gujarat “vs- Mirzapur Moti Kureshi Kassab Jamat, AIR
2006 SC 212. We cannot do better than to extract the relevant portions
thereof in order to buttress and justify the approach we propose to adopt:
Stare decisis is a Latin phrase which means ``to stand by decided cases; to
uphold precedents; to maintain former adjudication'`. This principle is
expressed in the maxim ``stare decisis et non quieta movers'` which means
to stand by decisions and not to disturb what is settled. This was aptly put by
Lord Coke in his classic English version as ``Those things which have been
so often adjudged ought to rest in peace'`. However, according to Justice
Frankfurter, the doctrine of stare decisis is not ``an imprisonment of reason'`
(Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4,
p. 4456). The underlying logic of the doctrine is to maintain consistency and
avoid uncertainty. The guiding philosophy is that a view which has held the
field for a long time should not be disturbed only because another view is
possible. The trend of judicial opinion, in our view, is that stare decisis is not
a dogmatic rule allergic to logic and reason; it is a flexible principle of law
operating in the province of precedents providing room to collaborate with
the demands of changing times dictated by social needs, State policy and
judicial conscience. According to Professor Lloyd concepts are good
servants but bad masters. Rules, which are originally designed to fit social
needs, develop into concepts, which then proceed to take on a life of their
own to the detriment of legal development. The resulting ``jurisprudence of
concepts'` produces a slot- machine approach to law whereby new points
posing questions of social policy are decided, not by reference to the
underlying social situation, but by reference to the meaning and definition of
the legal concepts involved. This formalistic a priori approach confines the
law in a strait-jacket instead of permitting it to expand to meet the new needs
and requirements of changing society (Salmond on Jurisprudence, Twelfth
Edition, at p. 187). In such cases Courts should examine not only the
existing laws and legal concepts, but also the broader underlying issues of
policy. In fact presently, judges are seen to be paying increasing attention to
the possible effects of their decision one way or the other. Such an approach
is to be welcomed, but it also warrants two comments. First, judicial inquiry
into the general effects of a proposed decision tends itself to be of a fairly
speculative nature. Secondly, too much regard for policy and too little for
legal consistency may result in a confusing and illogical complex of contrary
decisions. In such a situation it would be difficult to identify and respond to
generalized and determinable social needs. While it is true that ``the life of
the law has not been logic, it has been experience'` and that we should not
wish it otherwise, nevertheless we should remember that ``no system of law
can be workable if it has not got logic at the root of it'` (Salmond, ibid, pp.
187-188). Consequently, cases involving novel points of law, have to be
decided by reference to several factors. The judge must look at existing
laws, the practical social results of any decision he makes, and the
requirements of fairness and justice. Sometimes these will all point to the
same conclusion. At other times each will pull in a different direction; and
here the judge is required to weigh one factor against another and decide
between them. The rationality of the judicial process in such cases consists
of explicitly and consciously weighing the pros and cons in order to arrive at
a conclusion. (Salmond, ibid, pp. 188). In case of modern economic issues
which are posed for resolution in advancing society or developing country,
the court cannot afford to be static by simplistically taking shelter behind
principles such as stare decisis, and refuse to examine the issues in the light
of present facts and circumstances and thereby adopt the course of judicial
``hands off'`. Novelty unsettles existing attitudes and arrangements leading
to conflict situations which require judicial resolution. If necessary
adjustments in social controls are not put in place then it could result in the
collapse of social systems. Such novelty and consequent conflict resolution
and ``patterning'` is necessary for full human development. (See -The
Province and Function of Law, Julius Stone, at pp.588, 761and 762) Stare
decisis is not an inexorable command of the Constitution or jurisprudence. A
careful study of our legal system will discern that any deviation from the
straight path of stare decisis in our past history has occurred for articulable
reasons, and only when the Supreme Court has felt obliged to bring its
opinions in line with new ascertained fact, circumstances and experiences.
(Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8). Given
the progressive orientation of the Supreme Court, its creative role under
Article 141 and the creative elements implicit in the very process of
determining ratio decidendi, it is not surprising that judicial process has not
been crippled in the discharge of its duty to keep the law abreast of the
times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and
conditions change with changing society, and, ``every age should be
mistress of its own law'` - and era should not be hampered by outdated law.
``It is revolting'`, wrote Mr. Justice Holmes in characteristically forthright
language, ``to have no better reason for a rule of law than it was so laid
down in the time of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule simply
persists from blind imitation of the past'`. It is the readiness of the judges to
discard that which does not serve the public, which has contributed to the
growth and development of law. (ibid, p. 68) The doctrine of stare decisis is
generally to be adhered to, because well settled principles of law founded on
a series of authoritative pronouncements ought to be followed. Yet, the
demands of the changed facts and circumstances dictated by forceful factors
supported by logic, amply justify the need for a fresh look. Sir John
Salmond, while dealing with precedents and illustrating instances of
departure by the House of Lords from its own previous decisions, states it to
be desirable as 'it would permit the House (of Lords) to abrogate previous
decisions which were arrived at in different social conditions and which are
no longer adequate in present circumstances. (See - Salmond, ibid, at p.165).
This view has been succinctly advocated by Dr. Goodhart who said: ``There
is an obvious antithesis between rigidity and growth, and if all the emphasis
is placed on absolutely binding cases then the law looses the capacity to
adapt itself to the changing spirit of the times which has been described as
the life of the law'`. (ibid, p. 161) This very principle has been well stated by
William O' Douglas in the context of constitutional jurisprudence. He says:
``So far as constitutional law is concerned, stare decisis must give way
before the dynamic component of history. Once it does, the cycle starts
again'`. (See - Essays on Jurisprudence from the Columbia Law Review,
1964, at p.20)
16. In Municipal Corporation of Delhi “vs- Gurnam Kaur, AIR 1989 SC 38
the Three-Judge Bench had to decide the legal propriety of a High Court
order which applied Supreme Court direction, with the consent of parties, for
grant of alternate site to persons who had encroached on pavements. Their
Lordships observed that the High Court could not have passed similar orders
as it would have been contrary to the provisions contained in Sections 320
and 322 of the Delhi Municipal Corporation Act, 1957. In that context it was
observed thus- “Quotably as “law” applies to the principle of a case, its ratio
decideni. The only thing in a Judge”s decision binding as an authority upon
a subsequent Judge is the principle upon which the case was decided.
Statements which are not part of the ratio decidendi are distinguished as
obiter dicta and are not authoritative”. The Seven-Judge Bench in A.R.
Antulay “vs- R.S. Nayak, AIR 1988 SC 1531 defines per incuriam as “those
decisions given in ignorance or forgetfulness of some inconsistent statutory
provision or of some authority binding on the Court concerned, so that in
such cases some part of the decision or some step in the reasoning on which
it is based, is found, on that account to be demonstrably wrong”.
17. In Bharat Sanchar Nigam Ltd. “vs- UOI, (2006) 3 SCC 1 the Supreme
Court has clarified that a Bench can take a different view by distinguishing it
or where the earlier view is per incuriam. These fetters apply only to
Coordinate Benches which, if either of the gateways cannot be traversed,
must refer the point of controversy to a Bench of superior strength or of
superior jurisdiction. Similarly, exposition of the law can be found in Jindal
Vijaynagar Steel “vs- Jindal Praxair Oxygen Company Ltd., (2006) 11 SCC
521 where the Lordships have opined that a judgment will not be
reconsidered by a Coordinate Bench unless the latter believes that it has laid
down the wrong principle of law by ignoring a provision of law. Since
Section 482 of the CrPC was not considered by either of the Coordinate
Benches of this Court, we have not found it necessary to resort to
recommending the matter for being laid before the Full Bench.
18. It is our understanding that the facts and pronouncement in Bani Singh
cannot be extrapolated to the factual matrix before us. On the contrary the
obiter dictum 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 and facilitative steps are taken to secure the ends of justice. So far as
the views expressed by Coordinate Benches of this Court in Mohd. Tahir
and Harbir Singh are concerned, even though the latter merely follows the
former, the impact of Section 482 of the CrPC was not considered at all. In
our humble opinion the matter is, therefore, res nova.
19. In the course of arguments on the interesting aspect of law we had noted
the views of the Division Benches of the Bombay High Court in Nandkumar
Munnaswami Pilley “vs- State of Maharashtra, 2008 All MR(Crl.) 136
(Coram : D.G. Deshpande and S.R. Sathe, JJ) and Chapaya “vs- State of
Maharashtra (Coram : Naresh H. Patil and P.R. Borkar, JJ). With all respect
and with due humility we find that in Chapaya Bani Singh has been applied
without noticing the distinguishing fact situation. On the other hand, in Nand
Kumar the Division Bench did not lose sight of the fact that the appellants
were “not amenable and available to notices, non bailable warrants and
action under Sections 82 and 83 of the Cr.P.C. ..... Even otherwise i.e. even
if we appoint Advocate from the Legal Aid Panel to represent the accused in
these cases, the question will be if we dismiss the appeal, then how to secure
the presence of the accused so that they can be taken into custody and sent to
jail for undergoing the sentence”. The Division Bench then concluded that
“dismissal of the appeal is the only alternative left before us”.
20. Lakshmandas was decided by a Division Bench of the Bombay High
Court comprising Patel and Kantawala, JJ. It noted that the CrPC suggests
that even if the appellant does not appear to argue his appeal the Court could
have heard the appeal on merits; the appeal ought not to be dismissed for
default. Having said this, the Bench opined that this principle does not apply
to the case of an appellant who has obtained bail and thereafter jumped bail.
The Division Bench took recourse to the inherent powers of the High Court
and arrived at the conclusion that there can be no injustice in dismissing an
appeal where the appellant has jumped bail and had failed to appear in the
Court. Lakshmandas was not cited before the Division Benches of that very
Court either in Nandkumar or in Chapaya. Chapaya is per incuriam, whereas
Nandkumar is in sync with Lakshmandas.
21. This discussion reveals that at least two other High Courts, namely, High
Court of Bombay and High Court of Patna after due deliberation have
concluded that appeals filed by convicts who have thereafter absconded can
be dismissed on this short ground without entering upon the merits of the
appeal. We have also not found it necessary to refer to the Rules and Orders
applicable in different High Courts which prescribe the circumstances in
which an appellant is required to be present in Court. This is for the simple
reason that it is beyond cavil that the Court can, at any stage of the
proceedings, require the personal presence in Court of any of the parties
before it. The High Court Rules and Orders would indubitably be relevant if
the Court has not explicitly ordered the presence of the parties. Where
coercive steps such as issuance of non-bailable warrants have been ordered,
there can scarcely be any doubt that the appellant/convict or the
respondent/accused must attend the Court, or face the consequences of his
22. In Daya Shankar “vs- State of Bihar, 2004(3) BLJR 2330 : 2005
CriLJ482 the Division Bench presided over by Justice Aftab Alam (as his
Lordship then was) distinguished Bani Singh. Faced with the situation where
the appellant had rendered himsel[censored]ntraceable and non-responsive to
judicial process the Bench dismissed his appeal without reference to its
merits, clearly stating, however, that the dismissal of the appeal was not for
default or non-appearance but because of the conduct of the appellant.
23. We have endeavoured to digest the law pertaining to precedents for
myriad reasons. Firstly, to appreciate the point that the binding nature of a
precedent is only if the facts in the previous case can be substantially
extrapolated to those with which the Court is dealing. Secondly, that the
principles akin to per incuriam would render a decision irrelevant if a
binding judgment or a provision of law has not been considered. Thirdly,
that law is not immutable or static but on the other hand is expected to
respond to and adapt with the changing needs of society. With this
reiteration we shall discuss the views of Coordinate Benches of this Court on
interlocutory order in Mohd. Tahir and Harbir Singh. The factual matrix in
Harbir Singh is similar to what obtains before us. The other decision is Ram
Gopal by the same Bench as in Harbir Singh with the difference that it was a
State Appeal and, therefore, the Respondent was not a convict. Since we find
it difficult to reconcile with the views in Harbir Singh and Mohd. Tahir of
Coordinate Benches, our immediate reaction was to recommend and refer
the controversy to a Larger Bench. Had these Judgments been brought to our
notice at the commencement of the hearings, it is quite possible that we
would have adopted this course. After hearing counsel in great detail we
have not thought it necessary for the simple reason that these Benches did
not consider Section 482 of the CrPC and in fact decided the matter only on
Bani Singh.
24. Section 482 of the CrPC is of singular and seminal significance. The
statutory provision which immediately comes to mind is Section 151 of the
CPC because to a great extent the language employed therein appears to be
identical to Section 482 of the CrPC. There are, however, several
distinguishing features between these two Sections as is manifest from a
reading thereof. We are juxtaposing the two Sections for the facility of
reference:- Section 482 of CrPC Section 151 of CPC Saving of inherent
power of High Court.”Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the ends of justice. Saving of
inherent powers of Court.”Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such orders as may
be necessary for the ends of justice or to prevent abuse of the process of the
25. It is at once obvious that whereas Section 482 of the CrPC is available
only to the High Courts, Section 151 can be resorted 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 in exercise
of its criminal jurisdiction. Thirdly, it 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 “vs- L. Muniswamy, (1977) 2
SCC 699 enunciates that in exercise of its inherent powers in criminal
matters “the High Court is entitled to quash a proceeding if it comes to the
conclusion 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 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 the inherent powers of the High Court to
do justice between the 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 “vs- 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. Their
Lordships 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 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 “vs- State (Delhi Administration), AIR 1980 SC 258
considered the question whether the inherent power of the High Court under
Section 482 stands 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 S.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 “vs- Kasturi Lal, 2004 Crl. L.J. 3866 after
cautioning against reckless use of Section 482 their Lordships have observed
that “ “Inherent 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 abuse. 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 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; the principle of just dealing”.
26. The enunciation of the inherent powers of the High Court in exercise of
its criminal jurisdiction articulated on several occasions by the Apex Court
has emboldened 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 be enlarged on bail and thereafter to become untraceable. It is the
bounden and pious duty cast upon the Judge not merely to ensure that an
innocent person is not punished but equally not to be a mute spectator or an
instrument by which a convict escapes serving out his sentence. (See
Stirland v. Director of Public Prosecutions, 1944 AC 315 quoted with
approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh, (2003) 11
SCC 271). If the Court is derelict in doing its duty, the social framework will
be rent asunder and anarchy will rule everywhere. It is, therefore, imperative
to put an end to such practice by dismissing appeals, not in default or for
non-prosecution, but because the proceedings in the Appeal manifest an
abuse of the process of the Court and also an endangerment of the ends of
justice. The inherent powers of the High Court, as pointedly preserved in
Section 482 of the CrPC, are always to be used with care and caution.
Dismissal of an appeal by the High Court should be in exercise of its
inherent powers and should be exercised with the greatest circumspection
and restraint. There would be no justification to dismiss the Appeals, as in
Bani Singh, merely because the appellant or his advocate fails to appear or
prosecute the appeals on a date of hearing. Dismissal would be justified
where the Court has employed steps available to it to secure the presence of
the convict. It would be justified where non-bailable warrants have not had
the desired effect of ensuring the presence of the appellant/convict, or by
completion of steps for declaring the convict as a proclaimed offender.
Compliance with these provisions would leave no doubt in the mind of the
Court that the convict has no intention of pursuing his appeal; that the filing
of the appeal was only a charade and a strategem to frustrate the outcome of
a just trial. Tolerance is called for where the convict has expiated his crime.
The right to personal freedom, protected by Article 21 of the Constitution of
India, cannot be rendered nugatory by a pretentious or punctilious
performance of the motions of an appeal. In most cases the interests of a
convict may not be adequately safeguarded by the appointment of advocates
in legal aid schemes or by amicus curiae. The appellant would be satisfied
only if his appeal is argued by an advocate of his choice. On the other hand,
a party, which chooses not to participate in the hearing of his appeal, can
scarcely complain of violations of his Fundamental Right to remonstrate
against the curtailment of his personal freedom. A convict cannot abuse the
process and defeat criminal justice.
27. We now return to the proceedings in the Appeals before us. Mukesh,
Appellant in Crl. A.186/1992 and Suresh, Appellant in Crl. A. 189/1992,
were enlarged on bail on 9.7.1993 by Orders of this Court. Almost
immediately thereafter neither did the Appellants appear nor was any
representation made on their behalf. Bailable as well as non-bailable
warrants were issued. Connected Appeals are being duly prosecuted; in fact,
at one hearing their counsel had, on 25.9.2004, submitted that he would
endeavour to produce the Appellants. Although proceedings under Sections
82 and 83 of the CrPC have not