CR.A/1131/1997 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1131 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MAHENDRA BHOGILAL TADVI - Appellant Versus STATE OF GUJARAT - Opponent ========================================================= Appearance : MS BANNA S DUTTA for the Appellant. MR HL JANI, APP for the Opponent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 23/10/2008 CR.A/1131/1997 2/12 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE DN PATEL) 1. The present appeal has been preferred under Section 374 of the Code of Criminal Procedure, against the judgement and order of conviction and sentence dated 26th October,1993 passed by learned Additional Sessions Judge, Bharuch in Sessions Case No.11 of 1993, whereby the present appellant has been convicted for an offence punishable under Section 302 of the Indian Penal Code, whereby the appellant was ordered to undergo rigorous imprisonment for life and to pay a fine of Rs.250/-, in default, further simple imprisonment of one month. The appellant has also been convicted for an offence punishable under Section 498(A) of the Indian Penal Code and ordered to undergo simple imprisonment for six months and to pay a fine of Rs.250/, in default, further simple imprisonment of one month has been awarded. Both the Sentences were ordered to be run concurrently. 2. Brief facts of the present case are as under: On 8th June,1992 at about 2:00 p.m., there was a hot altercation between the appellant husband with his wife Revaben. Accused poured kerosene on her and set her ablazed. Upon hearing screaming, neighbours came and she was taken to Civil Hospital, Bharuch, where, she was examined by Doctor and as she was certified to be conscious, dying declaration was recorded, wherein, she had clearly stated that appellant poured kerosene upon her and set her ablazed. FIR was also filed by her. A case history recorded by the Doctor, P.W.No.1 also involves the present appellant. On the basis of evidence collected during investigation, charge-sheet was filed against the appellant and Sessions Case No.11 of 1993 CR.A/1131/1997 3/12 JUDGMENT was registered against him. Upon recording evidence, he was mainly convicted for an offence punishable under Section 302 of the Indian Penal Code for life imprisonment. Against this judgment and order of conviction and sentence, the present appeal has been preferred. 3. Learned counsel for the appellant submitted that the appellant is absconding since 6 th December,2000. An application was preferred in the pending criminal appeal for temporary suspension of sentence under Section 389 of the Code of Criminal Procedure,1973, and Division Bench of this Court vide order dated 16th October,2000 had suspended sentence for a period of 45 days running from 22nd October,2000 to 5th December,2000 and enlarged the appellant on bail upon his executing personal bond in sum of Rs.2,000/-. The appellant was also directed to report at Chanod Police Station on every 1st and 15th day of every English calendar month between 11 a.m. to 5.00 p.m. Thus, the appellant had to surrender before the jail authority on 6th December,2000, but, he is absconding since then. Jail remarks of the appellant, tendered by learned Additional Public Prosecutor, is taken on record of the case. Learned Additional Public Prosecutor Mr.Jani submitted that initially also, the appellant was granted furlough leave for a period of 14 days from 24th April,1996. At that time also, he was absconding and he was arrested by the police after 30 days, after completion of period of furlough leave of 14 days. 4. Initially the appellant had engaged his private lawyer Mr.M.A.Kalathil. As Mr.Kalathil has expired, we gave a legal aid vide order dated 13th October,2008 and learned advocate Ms.Banna Datta is appointed on his CR.A/1131/1997 4/12 JUDGMENT behalf. Despite this appointment, the appellant has not been available and is still absconding. 5. Learned Additional Public Prosecutor further submitted that when accused is absconding and he has no faith in justice delivery system and he has no faith in the Institution, constituted under the Constitution of India, his appeal may be dismissed. Upon his surrendering to the jail authority or upon his arrest by police, he can prefer an application for revival of the Criminal Appeal. 6. Learned Additional Public Prosecutor submitted that it is fundamental duty vested in the appellant, as enshrined in Sub-Article (a) of Article 51-A of the Constitution of India, to abide by the Constitution and to respect its ideals and the institutions. It is submitted by learned Additional Public Prosecutor that there are several decisions rendered by the Hon'ble Court that the Criminal Appeal cannot be dismissed for default. He has relied upon the following decisions for the aforesaid ratio decendi. (i) In the case of Amratbhai Lilabhai Desai V/s. State of Gujarat reported in 2002(3) GLR 1993 (ii) In the case of Dr.Jainendrakumar Vijaykumar Badjate V/s. State of Maharashtra reported in AIR 1990 SC 1224. 7. Learned Additional Public Prosecutor submitted that in none of the aforesaid judgements, a proposition of law has been established that when the accused is absconding, his Criminal Appeal cannot be dismissed and, therefore, present Criminal Appeal deserves to be CR.A/1131/1997 5/12 JUDGMENT dismissed as accused is absconding. He has relied upon several provisions of Code of Criminal Procedure,1973, especially Sections 374, 384, 385 and 386 and Section 85 and pointed out that if the accused is absconding, his property can be seized, but, as per Sub-Section (3) of Section 85 of the Code of Criminal Procedure,1973, if the absconding accused voluntarily remains present before the Court or arrested by the police and brought before the Court, then, such property can be released or restored. From this sub-section also, if such an absconding accused remains present before the Court or arrested by the police, then, he can prefer an application for revival of the appeal and the appeal may be restored, as a matter of rule, provided that there is no unreasonably excessive lapse of period. 8. Having heard the learned counsel for both the sides and looking to the facts and circumstances of the present case, it appears that : (i) the present appeal has been preferred against the judgement and order passed by learned Additional Sessions Judge, Bharuch, mainly for an offence punishable under Section 302 of the Indian Penal Code for committing murder of wife by pouring kerosene and by ablazing her, on the basis of dying declaration, evidence given by the Doctor and by Executive Magistrate, who has recorded dying declaration and on the basis of evidence given by the police, who has recorded the FIR and on the basis of the evidence of the other prosecution witnesses. (ii) The appellant is absconding since 6 th December,2000. Criminal Misc. Application was preferred for suspension of sentence awarded by the Trial Court CR.A/1131/1997 6/12 JUDGMENT under Section 389 of the Code of Criminal Procedure, pending Criminal Appeal. The Division Bench of this Court vide order dated 16th October,2000 suspended the sentence for 45 days running from 22nd October,2000 on condition of his executing personal bond of Rs.2,000/- before the jail authority and on further condition that the appellant shall report to Chanod Police Station on every 1st and 15th day of every English Calendar month between 11 a.m. to 5 p.m. (iii) Thus, the appellant had to surrender before the jail authority on 6th December,2000, but, he has remained absconding till this date and has not surrendered. He had engaged a private lawyer Mr.Kalathil in the present appeal, who has expired. Thereafter, for much longer period, the present appellant has not engaged another lawyer mainly because of the fact that he was enjoying freedom of remaining absconding and was not taking any care of his criminal appeal. His attitude for not engaging lawyer, after death of his private lawyer Mr.Kalathil, shows his negligence to proceed further with this Criminal Appeal. We have, therefore, passed an order on 13th October,2008 and directed the Registry to supply legal aid and engage another lawyer. Thus, legal aid has been provided to the appellant, in pursuance of the directive principle enshrined in Article 39-A of Part IV of the Constitution of India. Despite this appointment, the appellant has not remained present and he is still absconding. It is fundamental duty vested in the appellant, as per Article 51-A of the Constitution of India to abide by the Constitution of India and to respect to its ideas and Institutions. (iv) Learned Additional Public Prosecutor submitted CR.A/1131/1997 7/12 JUDGMENT that even on previous occasion also, when he was enlarged on furlough leave for 14 days, he has not surrendered within time and he was arrested by the police lately by 38 days. (v) Looking to the tendency of the present appellant to flee away and that the appellant has no faith in justice delivery system, after filing appeal, deliberately he has ignored the entire system. This appeal deserves to be dismissed only on this ground. The appellant cannot watch the proceedings by remaining underground. Thus, if he is acquitted, it will encourage such absconding accused and if there is conviction, then, he will continue to remain absconding so as to avoid the conviction. In both these situation, the hearing of this Criminal Appeal will encourage those, who are in jail to flee away or jump the bail or furlough leave. We do not want to encourage absconding accused by taking such type of criminal appeal for final hearing on merits and we reiterate that when any accused disrespects the Constitution of India or justice delivery system and also thereby disobeys fundamental duty vested in him, as per Sub-Article (a) of Article 51-A of the Constitution of India, his Criminal Appeal deserves to be dismissed only on this ground. (vi) There two major circumstances, in which appellant – convict is not proceeding with his criminal appeal (a) due to the ignorance or sickness of the appellant or his lawyer; or (b) due to the fact that accused is absconding. CR.A/1131/1997 8/12 JUDGMENT There is a vast difference between these two circumstances. The decisions cited by learned counsel for the appellant that criminal appeal cannot be dismissed for default, are having their genesis in the ignorance, in conducting any criminal appeal either by appellant himself or by his lawyer. Some times, lawyer remains absent as he is busy with other matter or for other work or some times he is not aware of listing of the criminal appeal or some time he is genuinely sick and if no lawyer is engaged, the appellant, who is not absconding is not engaging the lawyer due to poverty or sickness, etc. In all these cases, there is ignorance of the party or a lawyer and in such cases, criminal appeal cannot be dismissed for default and it ought to be heard on its own merits, but, diagonally opposite are the facts of the present case. Accused in the present case is absconding. Deliberately, he has not surrendered after period of 45 days from 22nd October,2000, i.e. period for which, the sentence was suspended under Section 389 of the Code of Criminal Procedure. Thus, deliberate action or positive action reveals the intention of the appellant which shows that he has no respect to the Constitution of India and he has committed breach of the fundamental duty enshrined under Sub-article (a) of Article 51-A of the Constitution of India or it also reveals intention of the appellant that he has no faith in justice delivery system. On one hand, he remains absconding and on other hand, he expects that his appeal ought to be disposed of on its merits. Those, who are expecting their criminal appeals against conviction, to be heard on merits, cannot remain absconding. Therefore, the judgements cited by learned counsel for the appellant that criminal appeal cannot be dismissed for default are not helpful, looking to the CR.A/1131/1997 9/12 JUDGMENT peculiar facts of the present case. (vii) It has been rightly pointed out by learned Additional Public Prosecutor that in case decided by Hon'ble Patna High Court, reported in 2005 Cri.L.J. 482, especially in para 10, 23 and 24, read as under : “10. The rule which is statutory in nature uses negative language that forbids the hearing of an appeal (for admission) in the absence of intimation of surrender except in case where the appellant has been released on bail by the trial Court. It would be futile to argue that the prohibition that applies at the stage of admission would not apply to the hearing of the appeal and once the appeal is admitted, it is open to the appellant to merrily break the jail and escape from custody. This Court does not have the slightest doubt that the intimation of surrender which is a pre-condition and sine qua non for hearing of the appeal at the stage of admission is equally the pre-condition and sine qua non for hearing of the appeal for its final disposal on merits. The appeal preferred by the appellant Maya Shankar Singh does not comply with the legal requirement and his appeal, therefore, is not fit to be heard, unless the intimation of surrender is filed on his behalf. 23. The Court took the view that unless an intimation of his surrender was filed the appeal on his behalf was not competent to be heard on merits on two grounds; one, that his act in escaping from jail, though his prayers for bail was repeatedly rejected by this Court, was a wilful, deliberate and gross violation of the judicial process and it amounted to a defiance of the system of criminal administration of justice and he was, therefore, not entitled to any indulgence from the Court. The second ground was that the appeal on his behalf was not competent to be heard in terms of Rule 8 under Chapter XII of the Patna High Court Rules, that lays down in mandatory terms that in case the appellant had not been released on bail the appeal could not be heard in the absence of intimation of surrender. Both the aforesaid reasons are discussed in CR.A/1131/1997 10/12 JUDGMENT detail in the previous order dated 17-3-2004. 24. On 17-3-2004 the Court allowed Maya Shankar Singh three weeks time to surrender. The case was again called out for hearing on 16-7-2004. From the office note dated 7-4-2004 it appears that no intimation of his surrender was filed within the time allowed by the Court. Today though more than four months has expired both the counsel appearing for the appellants and the counsel appearing on behalf of the informant informed the Court that Maya Shankar Singh has not cared to surrender. In these circumstances Criminal Appeal No. 187 of 1998 in so far as it is on behalf of Maya Shankar Singh, appellant No. 2 stands dismissed. It shall now proceed only in respect of appellant No. 1 Daya Shankar Singh who continues to remain in jail.” (Emphasis supplied) Thus, sine qua non for hearing of the Criminal Appeal or precondition of hearing of the appeal, against order of conviction, on merits, for final disposal, is that the accused is not absconding and the accused must be available, either before Court or before the jail. As per Sub-section (3) of Section 85 of the Code of Criminal Procedure,1973, it is rightly pointed out that even when the property of absconding accused is seized, it can be restored to the accused, upon his appearance and surrender before the jail and there cannot be restoration of property, when the accused is absconding. As and when accused surrenders or is arrested, he can prefer an application for restoration of the present Criminal Appeal. We are of the opinion that this submission made by learned Additional Public Prosecutor is absolutely correct. This appeal is hereby dismissed only on the ground that the appellant-accused is absconding and is not available to the Court, nor is present in the Court. As and when he surrenders or is arrested by the police, CR.A/1131/1997 11/12 JUDGMENT he may prefer an application for restoration of the appeal. We do not want to encourage the absconding accused for remaining absconding by hearing his criminal appeal on merits. It also encourages, who are in jail to jump the bail or furlough. Leniency shown towards criminals is a threat to innocent persons. Those, who are in jail or those, who are absconding accused, must know that their criminal appeal shall not be decided on merits, if they are absconding. 'Dismissed for default' of Criminal Appeal of absconding accused, will discourage, an idea, if at all running in the mind of accused, that if he succeeds in appeal and if order of conviction is set aside, he will move freely in the society otherwise, he will continue absconding. This tendency of, taking chance, in hearing of Criminal Appeal will be minimize by dismissing criminal appeal of absconding accused, with condition that upon his surrendering or arrest by police, he can prefer an application for restoration of criminal appeal, which will be restored as a matter of rule in ordinary circumstances, except where there is unreasonably excessive delay. Only upon their surrendering or arrest by the police, their appeal can be heard on merits, if they prefer an application for restoration of dismissed Criminal Appeal. We have left the question open what will happen after unreasonably excessive length of period, such restoration application is preferred, but, normally, such criminal appeal should be restored upon application of restoration by surrendered or arrested accused, but, all depends upon facts and circumstances of the case and the said question is left open for the decision based upon facts of each case. 9. We are conscious that the accused has remained CR.A/1131/1997 12/12 JUDGMENT in jail for approximately considerable length of period of conviction, but, it is not a ground for absconding accused that his criminal appeal ought to be heard on merits, even if he is absconding. The appellant cannot expect that if the criminal appeal is not heard for longer time, he can jump the bail and furlough and get result on merits in his criminal appeal against conviction. Such practice of convict ought to be deprecated. Suffice it to say that this criminal appeal is hereby dismissed only on the ground that the present appellant is absconding. 10. We hereby direct the Registry to enlist all such criminal appeals, in which, the appellants are absconding at the earliest. (C.K.BUCH,J) (D.N.PATEL,J) *dipti