IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.Rev.Pet.No. 1152 of 2000() ------------------------------ CRA NO.185/2000 OF SESSIONS JUDGE, PATHANAMTHITTA. CC.471/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA. .................... REVN. PETITIONER(S)/RESPONDENT/COMPLAINANT: --------------------- SAMUL PHILIPOSE S/O.PHILIPOSE, THEKKEKKARA VEEDU, POOVANPARA, MANGARAM MURI, KONNI VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S)/APPELLANT/ACCUSED : --------------- KOSHY THOMAS S/O.K.T.THOMAS, KADAKKETHU VEEDU, CHENGARA MUKKU, KUMPLAMPOIKA, PUTHUSSERRIMALA MURI, RANNY VILLAGE, RANNY TALUK. ADV. SRI.V.PHILIP MATHEW THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/08/2009, ALONG WITH CRL.R.P.NO.1153/2000 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R. THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.Nos.1152, 1153 and 1155 of 2000 & Crl.R.C.Nos.7, 8 and 9 of 2009 -------------------------------------- Dated this the 19th day of August, 2009. ORDER These Criminal Revision Petitions and Criminal Revision Cases raise common question of law and fact and hence, are disposed of by a common order. The question involved is whether a Criminal Appeal preferred by the accused against his conviction and sentence after it is duly lodged could be dismissed as not pressed without entering findings on merit. 2. Petitioner who is common in all these revision petitions filed complaints against respondent No.1, common in all the cases for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Amount covered by the cheques is Rs.60,000/- Rs.46,000/- and Rs.40,000/-, respectively. All those cheques being dishonoured for insufficiency of funds, petitioner served statutory notice on respondent No.1 intimating dishonour and demanding payment of the amount. Since there was no positive response, petitioner preferred complaints. Learned Judicial First Class Magistrate-II, Pathanamthitta before whom the cases came up for trial found respondent No.1 guilty, convicted and sentenced him to pay fine of Rs.5,000/- each and in default of payment to undergo simple imprisonment for Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 2 three months each under Section 138 of the Act. Respondent No.1 preferred Criminal Appeals against his conviction and sentence in the court of learned Sessions Judge, Pathanamthitta. Criminal Appeals were admitted. Notice was given to the learned Public Prosecutor and ordered to the petitioner(who was respondent in those appeals). On 4.11.2000 it was represented on behalf of respondent No.1 (appellant in those appeals) that the appeals are not pressed and thereon learned Sessions Judge dismissed the Criminal Appeals and confirmed conviction and sentence passed by learned magistrate. On 12.12.2000 petitioner has preferred these revision petitions challenging legality and extent of the sentence imposed on respondent No.1 by learned magistrate. When these revision petitions came before me for hearing it was noticed that the Criminal Appeals which were admitted for hearing were dismissed by learned Sessions Judge as not pressed without perusing the records and deciding the matter on merit and the conviction and sentence were confirmed. Noting that prima facie there appeared to be an illegality in the procedure adopted by learned Sessions Judge suo motu revisions were registered in each case against disposal of the Criminal Appeals. Notice of Criminal Revision Cases was given to the counsel on both sides and the Public Prosecutor. I have heard learned counsel on both sides and learned Public Prosecutor appearing for the State. 3. It is contended by learned counsel for petitioner that sentence awarded by learned magistrate is not proper and legal and that the sentence Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 3 was confined to payment of fine of Rs.5,000/- each even after concluding that the cheques issued by respondent No.1 for discharge of liability to the tune of Rs.60,000/-, Rs.46,000/- and 40,000/- respectively were dishonoured for insufficiency of funds. Learned magistrate has not adverted to the provisions of Section 357(3) of the Code of Criminal Procedure (for short, “the Code”) which provides for awarding compensation to the victim who suffered loss at the hands of offender. Learned counsel contended that after fighting the case for several years petitioner has suffered loss on account of the nature of sentence imposed by learned magistrate. Even out of the fine awarded, there is no direction for payment of any amount to the petitioner by way compensation under Section 357(1) of the Code. Learned counsel for respondent No.1 in response contend that these revision petitions are not maintainable in so far as judgments of the trial court have merged in the common judgment of the appellate court and hence judgments of the trial court are no more in existence for this Court to exercise the power of revision on the sentence imposed by the learned magistrate. Petitioner has not chosen to file revision against the common judgment of the appellate court confirming the conviction and sentence. Learned counsel has placed reliance on the decision in Kunhayammed and others v. State of Kerala ((2000) 6 SCC 359). It is also contended by learned counsel that after nine years, this Court is not justified in exercising the power of suo motu revision against the dismissal of the Criminal Appeals. Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 4 4. I have gone through the common judgment of learned Sessions Judge dated 04.11.2000 disposing of the Criminal Appeals. Learned Sessions Judge after stating that the appeals arose from conviction and sentence of fine of Rs.5,000/- each and in default to undergo simple imprisonment for three months each held, “Today when the matter came up for consideration the learned counsel for appellant submitted that the appeal is not pressed as the appellant intends to pay the fine imposed by the court. The conviction and sentence passed by the lower court in the circumstances are only to be confirmed in the light of submission made by appellant's counsel. The appeals are accordingly dismissed and the conviction and sentence passed by the lower court are confirmed.” (emphasis supplied) The common judgment shows the learned Sessions Judge dismissed the Criminal Appeals against conviction and sentence solely for the reason that counsel for respondent No.1 (appellant before learned Sessions Judge) submitted that the Criminal Appeals are not pressed. There was no consideration of the Criminal Appeals on merit. Learned Judicial Magistrate of First Class-II, Pathanamthitta in his letter No.D-943/08 dated 02.08.2008 has informed this Court that the case records were not called for from his court for the purpose of Criminal Appeal Nos.184 of 2000, 185 of 2000 and 186 of 2000. Thus it is clear that when learned Sessions Judge dismissed the Criminal Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 5 Appeals as not pressed, case records had not been called for by learned Sessions Judge. Question is whether Criminal Appeals which were duly admitted could have been dismissed as not pressed without perusing the records of the case and deciding the appeals on merit. 5. 'Conviction' means condemnation; finding of guilt; the finding of a person guilty of an offence; the judgment of guilty pronounced against the accused by the proper tribunal, and the mode prescribed by law. The word 'convict' (as noun) is defined in Tomlin's Law Dictionary as one who is found guilty of an offence by verdict of a jury. A conviction under the penal law is followed by sentence as the law provides. A conviction by itself can bring about disqualification in certain cases. Chapter XXIX of the Code deals with appeals. Appeal “is the right of entering a superior court and invoking its aid and interpositions to redress the error of the court below” (per Lord Westbury in Attorney General v. Sillem, 10 HLC 704 = 33 LJ Ex.209). In Oxford Dictionary, Volume I, page 398 “appeal” is defined as the transference of a case from an inferior to a higher court or Tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweet, the term “appeal” is defined as a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court or court of appeal. In the Law Dictionary by Bouvier 'appeal' is defined as the removal of a case from a court of inferior to one of superior jurisdiction for the purpose of obtaining a review and Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 6 re-trial. Section 374 of the Code provides for appeals to the court of Session. Section 382 of the Code provides the mode of preferring an appeal - in the form of a petition in writing presented by the appellant or his pleader and unless otherwise directed by the court, it shall be accompanied by a copy of the judgment or order appealed against. Section 384 of the Code subject to the proviso provided therein enables the court of appeal to summarily dismiss the appeal if such court considers that there is no ground for interference. Appellate court may, before summarily dismissing the appeal call for records of the case. 6. Section 385 of the Code provides the procedure for hearing appeals which are not dismissed summarily (under Section 384) . The Section reads, “385. Procedure for hearing appeals not dismissed summarily - 1. If the Appellate court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeals will be heard to be given - i. to the appellant or his pleader; ii. to such officer as the State Government may appoint in this behalf; iii. if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant; iv. if the appeal is under Section 377 or Section 378, to the accused and shall also furnish such officer, complainant and accused with a copy of Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 7 the grounds of appeal. 2. The appellate court shall then send for the records of the case, if such record is not already available in that court and hear the parties. Provided that if the appeal is only as to the extent or the legality of the sentence, the court may dispose of the appeal without sending for the record. 3. Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not except with the leave of the court urge or be heard in support of any other ground.” (emphasis supplied) Section 386 of the Code requires the appellate court after perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears if it considers that there is no sufficient ground for interfering to dismiss the appeal or to exercise any of the powers provided therein. 7. Thus a reading of Sections 384, 385 and 386 of the Code shows that if an appeal is not dismissed summarily for which it is not essential that the record of the case has to be called for, appellate court has to give notice to the parties concerned about the date and time of hearing and such appeals could be disposed of only on merit after perusing the records. If on such perusal of records and hearing the party/counsel/Public Prosecutor if he appears the court considers that there is no sufficient ground to interfere, the court shall dismiss the appeal or it may, depending on the facts and evidence in the case exercise Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 8 any of the powers mentioned in Section 386 (a) to (d) of the Code. To be precise, if the appeal is not summarily dismissed under Section 384 of the Code, appellate court is bound to call for the records (except when challenge is only as to the extent or legality of sentence alone), peruse the same and decide the appeal on merit. 8. Then, could an appeal which is not summarily dismissed under Section 384 of the Code be dismissed for default, as withdrawn or as not pressed without perusing the record of the case and without deciding the appeal on merit? In the wordings of Sections 384 to 386 of the Code, such a course is not permissible. Order XXIII of the Code of Civil Procedure provides for withdrawal or abandonment of a suit and since an appeal is a continuation of the lis, the said provision could apply to appeals from decrees or orders as well. Such an enabling provision is not available in the Code. Section 321 of the Code permits the Public Prosecutor or the Assistant Public Prosecutor in charge of a case with the consent of the court to withdraw from the prosecution of any person but that power has to be exercised before judgment is pronounced. A Division Bench of the Madhya Pradesh High Court considered the question whether an appeal against acquittal could be withdrawn by the Public Prosecutor invoking Section 494 (of the old Code corresponding to Section 321 of the Code) treating the appeal as a continuation of the trial. The Division Bench held (State of Madhya Pradesh v. Mooratsingh and others - 1975 Cri.L.J. 989) that Section 494 (of the old Code) is available only upto Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 9 the pronouncement of judgment and not when an appeal against acquittal is pending. According to the Division Bench the analogy of the Code of Civil Procedure that an appeal is a continuation of the suit cannot be applied in the case of Criminal Appeals in the absence of provision in the Code like Section 107(2) of the Code of Civil Procedure. Therefore, it was held that invoking Section 494 of the old Code (Section 321 of the present Code) an appeal against acquittal (once it is not summarily dismissed) cannot be withdrawn. 9. Lord Thankerton held in King - Emperor v. Dahu (AIR 1935 PC 89), “where the appeal is not dismissed summarily, the court is bound, in order to the disposal of the appeal, to comply with the provisions of S. 422 as to notice, and with the provisions of S.423 as to sending for the record, if such record is not already in court.......................” (Sections 422 and 423 of the old Code corresponds to Sections 385 and 386 of the present Code). The issue came up for consideration before a Full Bench of Lahore High Court in Emperor v. Ghulam Mohammed (AIR (29) 1942 Lahore 296). Dalip Singh, J. speaking for the Full Bench held, “................ From all these considerations, it appears to me that the Legislature have never contemplated any withdrawal of an appeal once lodged whether by the accused or by the crown and that once the appeal has been lodged and admitted, it Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 10 is not in the power of any court nor in the power of the appellant to allow the appeal to be withdrawn. The court is bound once the appeal is admitted to proceed under S.421 or under Ss.422 and 423 to decide the appeal on merits. .....................” N.K.Sen, J. held in Biswanath Chakravarty v. Haripada De Dhara and others (AIR 1959 Calcutta 443), “ Once an appeal is admitted, it cannot be dismissed for non-prosecution nor can it be allowed to be withdrawn. The appellate court is to proceed in accordance with the provisions contained in section 423. In this connection it makes no difference whether the appeal is against an order of acquittal or conviction.” C.A.Vaidialingam, J. stated in Shyam Deo Pandey and others v. State of Bihar (AIR 1971 SC 1606) that requirement as to perusal of the record is a condition precedent for a proper disposal of appeal either by dismissing the same or in any other manner contemplated in the section. 10. The Supreme Court in Bani Singh v. State of U.P.(1996 (2) KLT 424) said that if the appeal is not dismissed summarily under Section 384 of the Code, appellate court must call for the record and dispose of the appeal on merit. Even when the appeal is dismissed summarily under Section 384, if the appellate court dismissing the appeal is a Court of Session or the Chief Judicial Magistrate, it has to record its reasons for such dismissal. It is stated Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 11 that Sections 385 and 386 of the Code contemplate disposal of the appeal on merit after perusal and scrutiny of the record. The appellate court has to dispose of the appeal on merits not merely by perusing the reasoning of the trial court in the judgment, but by cross checking the reasoning with the evidence on record with a view to satisfy itself that the reasoning is correct. In view of Sections 354 and 387 of the Code, it is a statutory requirement that the judgment, be it of the trial court or of the appellate court shall contain points for determination and reasons for the decisions on each point (See Velayudhan v. State of Kerala - 1993 (2) KLT 935). 11. In the light of the provisions of law and precedents stated above, once a criminal appeal is duly lodged, appellate court has to dispose of the appeal either as provided under Section 384 or following the procedure under Sections 385 and 386 of the Code. If the appeal is not dismissed summarily under Section 384 of the Code (for which appellate court may call for the record of the case), appellate court is bound to call for the records, if it is not already before it, peruse the same and decide the appeal on merit. The Code does not contemplate a dismissal of the appeal as withdrawn or as not pressed once it is duly lodged. Even when the counsel or party reports that he is not proceeding with the appeal which is duly lodged, appellate court has to follow the procedure prescribed under Section 384 or under Sections 385 and 386 of the Code, as the case may be. 12. Article 21 of the Constitution of India mandates that no person shall Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 12 be deprived of his life or personal liberty except according to the procedure established by law. It is the duty of every court to zealously guard that fundamental right of every person. An illegal conviction and sentence and the consequent deprival of life and liberty of the convict is a violation of Article 21. When a grievance that his conviction and sentence are illegal is brought before the superior forum and it is duly lodged, it is the duty of that forum whether or not the convict is pursuing his petition to consider whether his life and personal liberty has been deprived in accordance with the procedure established by law. Viewed in that line, dismissal of the Criminal Appeals which were duly lodged and not summarily dismissed, without calling for and perusing the records of the case and otherwise than on merit merely for the reason that the appeals were not pressed is illegal being in violation of the mandatory provisions of the Code. 13. Learned counsel for respondent No.1 contends that the Criminal Appeals were disposed of on November 4, 2000, almost nine (9) years have now passed by, petitioner has not challenged the disposal of the Criminal Appeals and hence at this stage this Court may not exercise its suo motu power on the disposal of the Criminal Appeals. 14. On going through the common judgment in the Criminal Appeals it appears that there was no appearance for petitioner (respondent No.1 in the Criminal Appeals). Only the State was represented by the Public Prosecutor. If petitioner had entered appearance in the Criminal Appeals through counsel, necessarily the name of the counsel would have been mentioned in the common Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 13 judgment. Learned magistrate disposed of the cases on August 31, 2000. Petitioner filed Criminal Revision Petitions in this Court challenging inadequacy of sentence on December 12,2000. Criminal Appeals were disposed of by learned Sessions Judge on November 4, 2000. It is seen from the order of this Court dated August 27, 2008 that this Court took note of disposal of the Criminal Appeals from the report received from learned Sessions Judge. Counsel for petitioner then submitted that he is not aware of any such appeals or its disposal. There is nothing on record to show that Criminal Revision Petitions challenging the judgments of learned magistrate were filed with the knowledge of disposal of the Criminal Appeals. The High Court, under Section 401 of the Code can exercise suo motu power of revision even when the records of the case has not been called for by itself. Article 227 of the Constitution of India confers on the High Court power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. Power of revision conferred on the superior criminal court is supervisory in character. It is to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted in injury or undeserved hardship. It is the function, nay, duty of the superior court exercising supervisory jurisdiction to correct the illegality, irregularity or mistake committed by the Subordinate Criminal Court in its proceeding, judgment or order. The superior court cannot keep its hands off when it is brought to its notice that an illegality, irregularity or impropriety has Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 14 been committed by the Subordinate Criminal Court, no matter whether party aggrieved has moved the superior court or not and set right the illegality, irregularity or impropriety by passing appropriate orders. Nor is lapse of time by itself a reason not to exercise the revisional jurisdiction. In this case party aggrieved is before this Court in revision though he challenged the judgment of learned magistrate, may be because he was unaware of the disposal of the Criminal Appeals. This Court on being informed by the learned magistrate that learned Sessions Judge before disposing of the Criminal Appeals had not called for the records of the case directed the Registry to register Criminal Revision Cases in exercise of its power under Section 401 of the Code notice of which has been given to counsel on both sides and the learned Public Prosecutor. On the facts and circumstances of the case I am satisfied that learned Sessions Judge has committed an illegality in the matter of disposal of the Criminal Appeals and hence this Court is required, in exercise of its power under Sections 397 and 401 of the Code to interfere and set right that illegality. 15. Learned counsel for respondent No.1 contends that the Criminal Revision Petitions directed against the judgment of learned magistrate are not maintainable as the judgment of learned magistrate has merged in the common judgment in the Criminal Appeals. No doubt, the principle of merger of judgment of lower court in the judgment of superior court would apply in the matter of criminal proceedings also. But in view of the order I am proposing to pass in these Criminal Revision Petitions and Criminal Revision Cases the Crl.R.P.Nos.1152,1153 & 1155/2000 & Crl.R.C. Nos.7, 8 and 9/2009 15 issue of merger is of no relevance. Therefore, it is unnecessary to go into that question in these proceedings. 16. Petitioner has a contention that sentence awarded by the learned magistrate is not proper and the loss caused to the petitioner was not compensated. I am not going to that issue at this stage since that is a matter required to be decided by learned Sessions Judge in view of the manner in which I propose to dispose of these proceedings. Having regard to the facts and circumstances which I have stated above, common judgment of the learned Sessions Judge dismissing the Criminal Appeals as not pressed is liable to be set aside and the