1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1197 OF 2008 IN CRIMINAL APPEAL NO. 162 OF 2001 ANIL KOTHARI S/O NARENDER ) SINGH presently confined at ) Central Jail No.4, Tihar, New Delhi. ).. ... Applicant (Orig.Appellant) Versus The State ) through Central Bureau of ) Investigation, (at the instance of ) CBI, EOW Case No. RC-4/E/98, ) CBI, EOW, Mumbai. ).. ... Respondent. Mr. Niteen Pradhan with Ms. S. D. Khot and Ms.Ameeta Kuttikrishnan for the Applicant. Mr. J. C. Satpute for Respondent No.1. Mr. P. S. Hingorani, APP for the State. CORAM : BILAL NAZKI and ANOOP V. MOHTA, JJ. RESERVED ON: 29TH JANUARY, 2009. PRONOUNCED ON : 9TH APRIL, 2009. (At 4.45 p.m. in Court) 2 O R D E R (Per Bilal Nazki, J.) : This is an application for restoration of an Appeal No.162 of 2001. This application came to be listed before the Court on the first occasion on 21st November, 2008. The applicant has sent this application from Jail for restoring Criminal Appeal. The Court, by its order dated 21st November, 2008 noted the facts. But brief facts are needed to be mentioned again. 2. The applicant suffered conviction under various offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) and was sentenced to under to rigorous imprisonment for 12 years and to pay fine of Rs.2 lacs, in default to under go further rigorous imprisonment for one year. Being aggrieved of conviction and sentence, he filed an appeal being Appeal No. 162 of 2001 on 14th March, 2001. He filed the bail application along with the appeal, which was rejected. During the pendency of appeal, he filed certain applications. The purpose of all applications was to come out of the jail, which were, however, rejected. Thereafter on 17th April, 2006 he was able to get parole. Time to time he got parole and he contended that parole was ordered to be given by the Deputy Chief Minister or the Minister of Prisons and according to him he was granted parole from 13th February, 2003 to 12th May, 2005 continuously. The court took notice of this even if his parole which was 3 unusually granted for a period of almost three years, he did not surrender before the Jail Authority when this parole period came to an end. 3. The Central Bureau of Investigation also filed a criminal application bearing Criminal Application No. 961 of 2006 praying that the appeal filed by the applicant/appellant be dismissed since the applicant was absconding. When the appeal was listed along with the application, learned Counsel Mr. Sait, appearing for the accused, reported that he had no instructions and the appeal was dismissed. 4. The applicant was involved in one more NDPS case and was arrested by the Directorate of Revenue Intelligence, Delhi and was in judicial custody in respect of that case from 26th April, 2008. The High Court after discussing the matter elaborately passed the following order: "(a) We take a cognizance of the continuous parole granted by the State Authorities from 19th November, 2002 till 12th May, 2005, and for the said purpose the State of Maharashtra is hereby directed to produce the files granting parole to the petitioner for the above referred to period and the orders passed. After perusal of that, we will decide to issue notices to the persons who were holding the respective posts at the particular time. (b) We direct the Central Bureau of Investigation to obtain the custody of the present applicant – accused from the Delhi Court and produce him on transfer warrant for receiving the conviction which is imposed upon him by the judgment and order dated 22nd / 23rd January, 2001 passed by the Special Court, Mumbai in Special Case No. 279 of 1999. 4 (c) Respondent – Central Bureau of Investigation to file its reply within four weeks from today. (d) S. O. to 12th December, 2008.” The matter relating to grant of parole is pending in this Court and Chief Secretary of the State has also filed an affidavit. But the question in this application is whether this Court can restore the appeal or not. 5. The order dismissing the appeal reads as under: “In this case, Criminal Application No. 961 of 2006 was filed by the prosecution agency i.e. CBI stating that the accused/appellant is absconding and therefore his appeal is liable to be dismissed. On 3rd October, 2006 this court made an order granting time to the advocate for the appellant to seek instructions and keep the accused present in the court The learned advocate for the applicant / appellant submits that he has no instructions in the matter. Consequently, the claim of the State CBI that the applicant/appellant is absconding goes unchallenged. In such circumstances, we have no other alternative but to dismiss the appeal No.162 of 2001. It is accordingly disposed of.” 6. Learned Senior Counsel appearing for the applicant submits that the criminal appeal cannot be dismissed in default without going into the merits and as a necessary sequel to such a proposition of law would be that if an appeal is dismissed in default it could be restored so that it can be decided on merits. He referred to various judgements and further states that as a matter of fact order of dismissal of an appeal is not a judgment and therefore there would not be any impediment for the Court of appeal to restore a criminal appeal and the 5 bar that the court has no power of review would not apply. 7. In Ibrahim and anr. v/s Emperor, reported in AIR 1928 Rangoon 288, the Court was interpreting Section of the Criminal Procedure Code as it existed then, was of the view that the provision would apply to the judgment only. It quoted the provision, which was as under: “Save as otherwise provided by this Code or by any other law for the time being in force or in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court when it has signed his judgment, shall alter or review the same, except to correct a clerical error.” While interpreting this provision the Court held: "...... However, I am of opinion that what has been stated above is only applicable to a `judgment' . The term `judgment' is not defined in the Code. In my view the `judgment' contemplated by S.369 is only a decision on the merits.” The view of the Lahore High Court in the case of Raju & Anr. V/s Emperor, reported in AIR 1928 Lahore 462, while considering the power under Section 561-A in the earlier Criminal Procedure code which is now available to the High Court in Section 482 and also considering the provision under Section 369 of the earlier Code which is now available under Section 362, the Court held as under : "As there never has been an inherent power in the High Court to alter or review its own judgement in a criminal case once it has been pronounced and signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits.” The same view was expressed by the High Court of Mysore in Madiah v/s State 6 of Mysore, reported in AIR 1963 Mysore 191. Gujarat High Court in Ayubbhai Abdulbhai Shah v/s Gabha Bebhar & Ors., reported in 1994(3) Crimes 476, while considering a restoration of a criminal application was of the view that Section 362 of the Criminal Procedure Code contemplated only final order and not an interlocutory order and therefore held that the High Court should restore the criminal application dismissed in default. A Division Bench of the Bombay High Court in Mahendrakumar Shantilal Shah & Ors. V/s State of Maharashtra, reported in 1994 Cri.L.J. 2667, held in paragraph 11 as under: "11. We are thus inclined to hold that while a High Court may dismiss a criminal appeal for default of appearance, as held in Ram Naresh Yadav (1987 Cri.L.J.1856) (SC) (supra) and may also restore the same to file on sufficient grounds, the criminal appellate courts subordinate to the High Court, exclusively governed by Section 386 and having no inherent powers, cannot, in view of the mandate in the section, do so, but must dispose of the appeal on the merits on perusal of the records, even when the appellant or his Counsel does not appear to press or prosecute the appeal.” Similar was the view of the Kerala High Court in the case of Keralakumaran v/s State of Kerala, reported in 1995(4) Crimes 835. 8. There is another aspect of the matter which the learned Counsel has drawn our attention to, which relates to Section 384 of the Criminal Procedure Code. It is contended by the learned Senior Counsel that under Section 384 the Court has no power to dismiss a criminal appeal for default. Section 384(1) of the Criminal Procedure Code reads thus: 7 "384. Summary dismissal of appeal--- (1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 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 section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being hard in support of the same; (b) no appeal presented under section 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 a would be disproportionate in the circumstances of the case; (c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.” Bare perusal of the Section shows that the Appellate Court can dismiss an appeal only if there is a finding that there is no sufficient ground for interference and it is contended that in order to come to a conclusion that there was no sufficient ground for interference before the appeal was dismissed, the High Court was duty bound to go into the merits of the case. It is contended that such was the opinion expressed by the Gauhati High Court in Md. Sauman Ali & Anr. V/s State of Assam, reported in 1994 Cri.L.J. 2809, by the Supreme Court in the case of Jeewan & Ors. V/s State of Rajasthan, reported in JT 2000(8) SC 80 and also by the Bombay High Court in the case of Mahendrakumar Shantilal Shah & ors. V/s State of Maharashtra, reported in 1994 Cri.L.J. 2667. It is also contended that in Sankatha Singh & Ors. v/s State of Uttar Pradesh, reported in AIR 1962 SC 1208, the Supreme Court held as under: 8 "A criminal appeal cannot be dismissed for the default of appearance of the appellants or their Counsel and the Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order”. Learned Counsel contends that the matter is finally concluded by the three Judge Bench judgment of the Supreme Court in the case of Bani Singh and Ors. V/s State of U.P., reported in (1996) 4 SCC 720. Though the question in this case was not, whether the High Court could restore an appeal dismissed in default and the question was whether the High Court was justified in dismissing an appeal by accused against the order of conviction for non-prosecution. The Supreme Court dealt with Section 384 to Section 386 of the Criminal Procedure Code and found that after an appeal is admitted to hearing the only option with the High Court was to decide the appeal on merits. The matter had gone to the Supreme Court on a reference by a two Judge Bench and it reiterated the view of the Supreme Court in Shyam Deo Pandey v/s State of Bihar, reported in AIR 1971 SC 1606. In paragraph 19 of the Judgment, which was quoted with the approval by the three Judge Bench, it was held as under: “The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the Court and the appeal is set down for hearing, it is essential that the appellate court should: (a) peruse such record; (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the appellate court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present it is not 9 obligatory on the appellate court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor or both, are not present, the appellate court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the appellate court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.” Approving the view the three Judge Bench of the Supreme Court said that the earlier view was in consonance with the spirit and language of Section 386 and is a correct interpretation of the law and as such must be followed. 9. In our view, Section 392 read with Section 384 Cr. P. C. Contemplates a final order or a Judgment disposing off the matter on merits. The parties, are thereafter, disentitled to reagitate a fresh prayer for the same relief except to the extent of correcting a clerical or arithmetical error. The order of dismissal for default or for want of prosecution cannot be termed as a disposal on merit of the matter. The Apex Court in the case of Madan Lal Kapoor v/s Rajiv Thapar and Others, reported in (2007) 7 SCC 623, reiterated the view already expressed in Bani Singh (Supra) and held that any Criminal Appeal or revision should be disposed of only on merits. The disposal of such Criminal matter for default or non-prosecution is again deprecated. 10. Since in the present case, we have seen, no order on merits has 10 been passed and the appeal was dismissed only on an application made by the respondent that the accused / appellant was absconding. Though a notice had been issued to him he had not appeared in the Court. Yet, it was incumbent upon the Court to decide the appeal on merits. Therefore, in such exceptional circumstances, we are of the view that the appeal can be restored to file so that it can be decided on merits. 11. For the reasons aforesaid, the criminal application for restoration of Criminal Appeal No. 162 of 2001 is allowed. The order dismissing the appeal is recalled. The Criminal Appeal No. 162 of 2001 be restored to file and be listed for final hearing. Sd/- (BILAL NAZKI, J.) Sd/- (ANOOP V. MOHTA, J.)