1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.9 OF 1997 1. Kishore Kamlakar Patil, Age  21 Years, 2. Abhay Parshuram Bhagat Age  21 Years, Both R/o At Bhendkhal, Post Navghar, Taluka Uran, District Raigad. .... Appellants - Versus - The State of Maharashtra .... Respondent Shri Niteen Pradhan with Ms S.D. Khot & Ms Ameeta Kuttikrishnan for the Appellants. Shri J.P. Kharge, Additional Public Prosecutor for the Respondent-State. CORAM : R.C. CHAVAN, J. RESERVED ON : OCTOBER 12, 2011 PRONOUNCED ON: NOVEMBER 9, 2011 JUDGMENT: 1. This is an appeal against the conviction of the appellants for the offence 2 punishable under Section 307 r/w Section 34 of the Indian Penal Code (for short, IPC ) and sentence of RI for five years and fine of `500/-, or in default RI for three months, inflicted by the learned Additional Sessions Judge, Raigad in Sessions Case No.111 of 1993. 2. The appeal was dismissed by Judgment dated 15-11-2010 after perusing the record, as the learned counsel for the appellants stated that the appellants had taken away the brief. One of the appellants carried the matter to Hon ble Supreme Court. The Hon ble Supreme Court allowed the appeal by Order dated 15-4-2011 to the following effect: Leave granted. We have learned senior counsel appearing for the appellant as well as standing counsel appearing for the State. The High Court vide its impugned order dated 15.11.2010 disposed of the Criminal Appeal 3 preferred by the appellant herein against his conviction for the offence punishable under Section 307 of the Indian Penal Code without hearing any counsel on behalf of the appellant. It was specifically represented by the learned counsel for the appellant that the appellants have taken away the papers from her office long back and therefore, she was not in a position to assist the Court. In spite of such representation, the High Court proceeded to dispose of the appeal with the help of the Additional Public Prosecutor. Needless to observe that the High Court, in such a situation, at least ought to have arranged the services of an Amicus Curiae on behalf of the appellant but the High Court had chosen to dispose of the appeal after hearing the Public Prosecutor, which, in our consideration opinion, is not the correct way of disposing of the Criminal Appeal. For the aforesaid reasons, the impugned judgment of the High Court is set aside. Criminal Appeal No.9 of 1997 shall stand restored to its file for its disposal on merits after hearing counsel for the appellant. Learned senior counsel appearing on behalf of the appellant submits that the appellant will engage an advocate and proper appearance shall be filed within four 4 weeks from today. The appellant is directed to be released on bail to the satisfaction of the Trial Court. The appeal is accordingly, disposed of. This is how the appeal was heard again and is being disposed of by this Judgment. 3. Rehearing this appeal by spending precious judicial time on account of probably improper understanding of legal requirements in this behalf by me necessitates an apology and an explanation. In the era when law makers talk of judicial accountability and objective evaluation of performance of Judges, where one of the parameters suggested is number of cases in which a Judge was reversed, reversal of a Judgment, not because the superior Court took a different view, but because the superior Court found the Judge wanting in following the procedure is, if not a stigma, at least, 5 disapproval of the manner in which the appeal was dealt with. Therefore, I feel that it would be appropriate to place on the record the reasons which prevailed upon me to hear the appeal in the first place without the assistance of an Advocate and which has resulted in loss of scarce judicial time, since there would be no other occasion for a Judge to speak otherwise than through a Judgment. 4. Incidentally, after the matter came back from the Supreme Court, the very same learned Advocate who had filed the Vakalatnama on behalf of the appellants even in the trial Court argued the matter extensively and the matter is now being decided. 5. With a heavy backlog of cases it would be the paramount duty of a Judge to dispose of cases as fast as possible and to ensure that there is no wastage of precious judicial time. 6 Yet it is possibly this very thought that has resulted in my spending double the time for disposal of this case. When the appeal came up first for hearing, the counsel for the appellant stated that the appellant had taken back the papers. Since the appellant had not made any arrangement for having his matter argued, I proceeded to decide the appeal after considering the record, as is required under Section 386 of the Code of Criminal Procedure, corresponding to Section 423 of the old 1898 Code. Section 386 reads as under: 386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or 7 committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction - (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any order, alter or reverse such order; 8 (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. (emphasis supplied) In view of the words and hearing the appellant or his pleader, if he appears, in Section 386, it was felt that if the appellant or his pleader did not appear, it did not really matter and the only obligation under Section 386 was to peruse the record. 6. In fact, in Shyam Deo Pandey and others v. The State of Bihar, reported in AIR 1971 SC 1606, the Supreme Court had considered 9 the provisions of Section 423 of the 1898 Code. In para 19 of the Judgment, the Court observed as under: 19. A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. 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 obligatory on the Appellate Court to postpone the 10 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 facts 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. Under Section 421 the Appellate Court has to decide whether the appeal is to be taken on file or dismissed summarily. The obligation of the court at that stage is only to peruse the petition of appeal and the copy of the order or judgment appealed against. A summary dismissal of the appeal will then be legal if the Appellate Court considers that there is no sufficient ground for interference. But even in such circumstances it has been held that a summary decision is a judicial decision which vitally affects the convicted appellant and in a fit case, it is also open to be challenged on an appeal before this Court. Though a summary rejection, without giving any reasons, is not violative of any statutory provisions, such a manner of disposal removes every opportunity for detection of errors in the order. It has been further held that when an appeal in the High 11 Court raises a serious and substantial point, which is prima facie arguable, it is improper for an Appellate Court to dismiss the appeal summarily without giving some indication of its view on the point. The interest of justice and fair play require that in such cases an indication must be given by the Appellate Court of its views on the point argued before it. The earliest decision on this aspect is the one reported in Mushtak Hussein v. The State of Bombay, 1953 SCR 809 = (AIR 1953 SC 282). The entire case law has been referred to and reiterated in Govinda Kadtuji Kadam v. The State of Maharashtra, AIR 1970 SC 1033. The recent decision on this aspect is of Challappa Ramaswami v. State of Maharashtra, AIR 1971 SC 64. We have referred to the above decisions to show that though a summary rejection by an Appellate Court under Section 421 may not be violative of the section, nevertheless when an arguable or substantial question arises for consideration, the Appellate Court in its order should indicate its views on such point. If the position is as indicated above that even under Section 421, which contemplates dismissal of an appeal summarily, under Section 423, in our opinion, a very rigorous test must be applied to find out whether the Appellate Court has complied with the provisions contained therein. There is no emphasis on the perusal of the record in Section 421, whereas under Section 423 one of the 12 essential requirement is that the Appellate Court should peruse the record. There cannot be any controversy that Section 423 applies to cases in which appeals have been presented and admitted. Though Section 423 does not provide any limitation on the power of the Appellate Court that it is incompetent to dispose of the appeal, if the appellant or his pleader is not present, nevertheless there is a limitation. That limitation, which is provided by the section is that the Appellate Court, before disposing of the appeal, must peruse the record. No doubt if the appellant or his pleader is present, he must be heard. Similarly, if the public prosecutor is present, he too must be heard. The Legislature in Section 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing the appellant or any one on his behalf or the public prosecutor. The expression "after perusing such record" in the section is, in our opinion, a condition precedent to a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the said section. The powers which the Appellate Court in criminal appeals possesses are depicted in Section 423. It has power not only to dismiss the appeal but also pass any one of the orders enumerated in clauses (a), (b), (c) and (d) and sub-section (l-A). These provisions show the enormous powers which the Appellate Court possesses in regard 13 to a criminal appeal. These powers, it cannot be gainsaid are very vast. Any one of the orders mentioned above, could be passed by the Appellate Court whether the appeal is disposed of on hearing or without hearing the Appellant or his pleader. These provisions, in our opinion, clearly indicate the nature of a judgment or order that is expected of the Appellate Court in its judgment. It is in this context that the expression "after perusing such record" assumes great importance. Absence of those words in Section 421, brings out in bold contrast the difference in the nature of jurisdiction exercised under the two sections. (emphasis supplied) In view of this, there was no doubt in my mind that it is not necessary to wait for the appellant or his pleader or even the Prosecutor for deciding the appeal on merits. 7. Incidentally, there is also a Judgment of the Supreme Court in Ram Naresh Yadav and others v. State of Bihar, reported in AIR 1987 SC 1500, which considers the provisions of 14 Section 386 of the new Code. The Judgment does not refer to the previous decision of the Supreme Court in Shyam Deo Pandey s case (supra) and comes to an exactly opposite conclusion that, where the appellant or his Advocate does not appear, the Court could dismiss the appeal for non-prosecution and enforce discipline, whereas the Judgment in Shyam Deo Pandey s case clearly rules out such a course of action. In Ram Naresh Yadav s case (supra), the Supreme Court set aside the order of conviction and sentence, since the sentence had been confirmed without hearing the appellant or the counsel. The Court had also referred to the possibility of initiating disciplinary action against the erring Advocate. 8. Two more Judgments of the Supreme Court may also be noticed. In Mangat Singh v. State of Punjab, reported in (2005) 11 SCC 185, 15 the Supreme Court was considering non- appearance of counsel for the accused before the High Court in an appeal against conviction for the offence punishable under Section 302 of the IPC. The Court held that though the High Court had considered the matter elaborately, it was not a substitute for the Judgment rendered after hearing the counsel, especially in a case in which the appellant is convicted under Section 302. Therefore, the Judgment of the High Court was set aside and the matter was remanded to the High Court for fresh disposal expeditiously after appointing an Advocate as amicus curiae. 9. In Bapu Limbaji Kamble v. State of Maharashtra, reported in (2005) 11 SCC 413, the same Bench held in respect of an appeal against conviction for an offence punishable under Section 302 of the IPC that the High Court may again hear the matter after appointing an 16 Advocate as amicus curiae. Both the Judgments do not refer to the Judgment in Shyam Deo Pandey s case. 10. In Khaili and others v. State of Uttar Pradesh, reported in 1981 (Supp) SCC 75, when the appeal was called out before the High Court, the Advocate appearing on behalf of the appellants stated that he had no instructions in the case and he would, therefore, not argue the case. He stated that he had addressed a communication to the appellants asking them to reach him immediately with fees and expenses. In this background the Hon ble Judge went through the record of the case and decided the appeal. The Supreme Court observed that, it must be remembered by every Advocate that he owes a duty to the Court, particularly in a criminal case involving the liberty of the citizens, and even if he has not been paid his fees or expenses, he must argue the case and 17 assist the Court in reaching the correct decision. The Court also observed that, one thing was clear that howsoever diligent the learned Judge might have been and however careful and anxious to protect the interests of the appellants, his effort could not take the place of an argument by an Advocate appearing on behalf of the appellants. Therefore, the Court felt that the Judge should have appointed an amicus curiae and then proceed to dispose of the appeal. Therefore, the appeal was again remanded back to the High Court. The Judgment in Shyam Deo Pandey s case does not appear to have been noticed by the Supreme Court while deciding this case. The provisions of Section 386, particularly the expression if he appears too have not been considered while deciding that appeal. 11. While deciding the appeal, I had considered the question as to whether an 18 amicus curiae could be appointed and had ruled out appointment of an amicus curiae because it would have entailed adjourning the hearing. Again if the requirement of law was that appellant had to be heard, the question of the appellant being represented by a lawyer of his choice would also arise and it could always be argued that hearing an amicus curiae was just a farcical compliance to the requirement of hearing the appellant. 12. In this context, the question as to what is a binding precedent and how law evolves by judicial precedent arises. In the absence of statute law, common law evolved from precedent to precedent. But when there is a statute, the role of judicial precedent would be only to interpret and explain the provisions of the relevant statute, should there be any ambiguity, or to elucidate the manner in which the statute is to be applied to a fact 19 situation. In this case, Section 386 of the Code does not present any difficulty as to interpretation. The words used in the Section are very clear. If the Legislature wanted that appellant must be heard, the Legislature would not have used the expression, if he appears . The object was very clear that, whether the parties or their Advocates appear or not, an Appellate Court would be obliged to decide the appeal after perusing the record. This had been confirmed by the Supreme Court in its Judgment in Shyam Deo Pandey s case. The doctrine of precedent itself implies that Judgments given earlier would bind successive Courts. Therefore, ordinarily, the Judgment in Shyam Deo Pandey s case would bind successive Benches, unless it is expressly over-ruled. It does not appear that at any point of time the Judgment in Shyam Deo Pandey s case has been considered and over-ruled. While judicial law making is a reality, Judges make law when the 20 Legislature leaves a gap, when there is a vacuum. Nullifying words in a statute can occur only if they affect the validity of the legislation or if the statute becomes unworkable without deleting those words. No such difficulty is presented by the words, if he appears . In the light of this, the necessity of hearing a party who had chosen to take away the brief from the Lawyer had to be considered. 13. I may also refer to the Bombay High Court Appellate Side Rules, 1960. Rule 31 in Chapter XXVI provides for appointment of Advocate for undefended accused at Government cost. The appellant s case does not fall under this category. Rule 8 about engaging Advocates, in Chapter XXXII of the Rules reads as under: 8. (1) In Civil Cases, the appointment of an Advocate, shall be deemed to be in force to the extent provided in that behalf by Rule 4 of 21 Order 3 of the Code of Civil Procedure, 1908. (2) In Criminal Cases, the appointment of an Advocate, shall be deemed to be in force until determined with the leave of the Court by writing signed by the client or the Advocate, as the case may be and filed in Court or until the client or the Advocate dies, or until all proceedings in the case are ended so far as regards the client. (3) For the purposes of sub-rule (2), a case shall be deemed to mean every kind of enquiry, trial or proceeding before a Criminal Court whether instituted on a police report or otherwise. The following shall be deemed to be proceedings in the case:- (i) an application for bail or reduction, enhancement or cancellation of bail in the case. (ii) an application for transfer of the case from one Court to another; (iii) an application for stay of the case pending disposal of a civil proceeding in respect of the same transaction out of which the case arises; (iv) an application for suspension, postponement or stay of the execution of the order of sentence passed in this case; 22 (v) an application for the return, restoration or restitution of the property as per the order of disposal of property passed in the case; (vi) an application for leave to appeal against an order of acquittal passed in the case; (vii) any appeal or application for revision against any order or sentence passed in the case; (viii) a reference arising out of the case; (ix) an application for review of an order or sentence passed in the case or in an appeal, reference or revision arising out of the case; (x) an application for making concurrent sentences awarded in the case or in an appeal, reference, revision or review arising out of the case; (xi) an application relating to or incidental to or arising in or out of any appeal, reference, revision or review arising in or out of the case (including an application for leave to appeal to the Supreme Court); (xii) any application or act for obtaining copies of documents or for the return of articles or documents produced or filed in the case or in any of the proceedings mentioned herebefore; 23 (xiii) any application or act for obtaining the withdrawal or the refund or payment of or out of the moneys paid or deposited in the Court in connection with the case or any of the proceedings mentioned hereinbefore (including moneys paid or deposited for covering the costs of the preparation, printing and transmission of the transcript record of appeal to the Supreme Court); (xiv) any application for the refund of or out of the moneys paid or recovered as fine or for the return, restitution or restoration of the property forfeited or confiscated in the case or in any appeal, reference, revision or review arising out of the case as per final orders passed in that behalf; (xv) any application for expunging remarks or observations on the record of or made in the judgment in