N Criminal Appeal No 183 of 1993
From the Judgment and order dated 1151992 of the Allahabad High Court in Criminal Appeal No 1791 of the 1979
Bahar U Bargi and Anis Suhrawardy for the Appellant
The following Order of the Court was delivered The petitioner was convicted by the Special Judge Mathura under Section 52 of the Prevention of Corruption Act and was sentenced to two years rigorous imprisonment and a fine of Rs 200
He filed an appeal before the Allahabad High Court which was dismissed for default of the appearance Or the petitioner and his counsel when the appeal was called out for preliminary hearing
An application for restoration of the appeal made thereafter has also dismissed by the order which has been challenged before this Court in the present special leave petition
The question which arises in this case is whether an appeal filed under Section 374 of the Criminal Procedure Code by an accused against his conviction and sentence could be dismissed for the default of the appellant in prosecuting the appeal either in person or through counsel
Notice was issued in the special leave petition indicating that the matter would be finally disposed of at the notice stage itself
The office report indicates that notice has been served but there is no appearance on behalf of the respondent State
Special leave is granted
The High Court in its order dated 14th November 1990 dismissing the appeal for non prosecution relied upon the observations of this Court in Ram Naresh Yadav and others vs State of Bihar AIR 1987 SC 1500 to the following effect The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view
But the matter can be disposed of on merits only after hearing the appellant or his counsel
The learned counsel for the appellant has contended that the appeal could not have been dismissed for default on the ground of absence of the appellant or his counsel to appear and press the appeal
The argument appears to be well founded
As enjoined by Section 382 of the Code of Criminal Procedure the appeal has to be filed in the form of a petition
Section 384 omitting sub sections 3 and 4 which are not relevant in the present context quoted below deals with summary disposal of appeal 384
Summary dismissal of appeal 1 If upon examining the petition of appeal and copy of the judgment received under Sec 382 or Sec
383 the Appellate Court considers that there is no sufficient ground for interfering it may dismiss the appeal summarily Provided that a no appeal presented under Sec 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same b no appeal presented under Sec
383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case c no appeal presented under Sec 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired
2 Before dismissing an appeal under this section the Court may call for the record of the case
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 dismissed 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
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 appellate 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  Ors
v State of Bihar 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 Emperor vs Balumal Hotchand and Others 39 Criminal law Journal 890 and Ramesh Nanu vs State of Gujarat 17 Gujarat Law Reporter 350
in Emperor vs Balumal Hotchand and others it was observed thus That the law requires that before an Appellate Court dismisses and 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 judgment and not upon the failure of the accused to press his appeal
In view of the clear language of the Code of Criminal Procedure and the other reasons mentioned above we are constrained to hold that the observations of this Court in AIR 1987 Supreme Court page 1500 relied Upon by the High Court in the case before us cannot be treated as having laid down the law correctly
The High Court was therefore not right in dismissing the appeal on the ground of non appearance of the appellant or his counsel and it should have therefore allowed the prayer of restoration of the criminal appeal under its inherent power
In the result the present appeal is allowed the orders of the High Court are set aside the Criminal Appeal No 1791 of 1979 before the High Court is restored and the matter is remitted to the High Court for consideration and decision on merits in accordance with law
TNA Appeal allowed


Summary:
A residential house was let out to the petitioner by the respondent
The respondent was initially employed as Accounts Officer with the Finance Department of the Government
In 1969 he went on deputation with the Haryana Agricultural University
While he was employed on the post of Comptroller in the University he retired from service with effect from February 28 1991
Claiming to be a specified landlord within the meaning of Section 2hh of the East Punjab Urban Rent Restriction Act 1949 the respondent moved a petition seeking eviction of the petitioner under section 13A of the Act before the Rent Controller
The petition was dismissed by the Rent Controller on the view that the respondent did not fall within the ambit of the definition of specified landlord since he failed to show that he was holding or had held an appointment in a public service or post in connection with the affairs of the Union or of the State
The respondent filed a revision petition before the High Court under section 18 A8 of the Act which was allowed by the High Court on March 1992
The High Court held that the respondent at the time of his retirement from the post of Comptroller in the University was holding an appointment in connection with the affairs of the State and hence he was a specified landlord within the meaning of section 2hh of the Act and that the respondent had fully satisfied the conditions as contained in section 13 A of the Act and he was entitled to recover the possession of the premises in dispute from the petitioner
The High Court allowed one month s time for the petitioner to vacate the premises subject to his paying the entire arrears of rent within 15 days from the date of the order and filing an undertaking that he would hand over the vacant possession of the premises on the expiry of the aforesaid period
On March 16 1992 the petitioner moved a petition in the High Court under section 151 CPC seeking three months  time to vacate the house and for waiving the requirement of filing of an undertaking
The High Court rejected the petition
Thereafter the petitioner submitted an undertaking dated March 20 1992 before the Rent Controller wherein the petitioner referred to the direction contained in the order of the High Court dated March 6 1992
On March 21 1992 the petitioner filed the special leave petition under Article 136 of the Constitution in this Court and succeeded to get an order staying dispossession on March 26 1992
In response to the notice issued on the Special Leave Petition the respondent filed a counter affidavit raising an objection that in view of the undertaking given by the petitioner the jurisdiction of this Court under Article 136 of the Constitution could not be invoked
The respondent landlord submitted that in view of petitioner tenant s having taken the benefit of direction contained to the order of the High Court allowing him one month s time to vacate the premises on his filing an undertaking that vacant possession of the premises would be handed over on the expiry of the period and his having submitted a written undertaking in accordance with the direction the petitioner was precluded from assailing the judgment of the High Court by invoking the jurisdiction of this Court under Article 136 of the Constitution
The petitioner tenant submitted that he did not take any undue advantage by giving the undertaking that prior to the undertaking he had moved an application for extension of time before the High Court wherein he had clearly indicated that he intended to file a special leave petition in this Court against the order of the High Court dated March 6 1992 and that it was also expressly stated in the undertaking filed in the Court wherein it is mentioned that the undertaking was subject to his right to file the special leave petition in this Court against the order of eviction
Dismissing the special leave petition this Court HELD 101 Law does not permit a person to both approbate and reprobate
This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument
263 F 102 The petitioner having given an undertaking in pursuance to the directions given by the High Court in the judgment dated March 6 1992 and having availed the protection from eviction on the basis of the said undertaking cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court
264 H 103 The statement in the undertaking that it was subject to the rights of the petitioner to file special leave petition in this Court against the order of eviction does not have any effect on the legal consequencew flowing as a result of the filing of the undertaking by the petitioner
263 D Verschures Creameries Ltd vs Hull and Netherlands Steamship Co E Ltd at p 612 Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker  Ors 1989 Supp
2 SCC 655 and Vidhi Shanker vs Heera Lal 1987 Supp
SCC 200 Ramchandra Jai Ram Randive vs Chandanmal Rupshand  Ors 1987 Supp
SCC 254 referred to
Halsbuly s Laws of England 4th Edn
16 para 1508 referred to