Harjinder Singh vs State Of Punjab

1 Substances Act imposed by the Special Court, Hoshiarpur.

The Special Court sentenced him to 10 years rigorous

imprisonment and imposed a fine a Rs. 1 lakh. Though the

High Court has considered the grounds raised in the

memorandum of appeal, considering the fact that the

appellant-accused was behind the bar and could not make

alternative arrangement and the Court has also not arranged a

counsel at the State expense and in view of sentence, i.e. 10

years rigorous imprisonment and a fine of Rs. 1 lakh, we

intend to give one more opportunity to the appellant-accused

to put forth his case through a lawyer in the High Court.

It is useful to refer a three Judge Bench decision of this

Court in Bani Singh & Ors. Vs. State of U.P. , (1996) 4 SCC

720. The question that was posed before the three Judge

Bench was that where the accused-appellant is represented

by a pleader and latter fails to appear when the appeal is

called on for hearing, is the appellate Court empowers to

dispose of the appeal after perusing the record on its own or,

must it adjourn the appeal to a future date and intimate the

accused to be present on the next date of hearing? After

2 finding difference of opinion in Shyam Deo Pandey vs. State

of Bihar, (1971) 1 SCC 855 and Ram Naresh Yadav vs.

State of Bihar, AIR 1987 SC 1500, the matter was referred to

a large Bench. The following conclusions emerge from the said

decision :

(i) The plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-

prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record.

(ii) Even in the absence of lawyer, the Court is competent to dispose of the appeal but only on perusing the record and after appreciation of grounds raised.

(iii) Even in the absence of a lawyer though the appellate Court is competent to decide the appeal on merits, if the accused is in jail and cannot, on his own come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent and the Court deems it appropriate to appoint a lawyer at State expense

3 to assist it, there is nothing in the law to preclude it from doing so.

In view of the legal position with regard to the disposal of

the appeals with reference to Sections 385-386 of the Code

and taking note of the special circumstances that the accused

was behind the bar and had no opportunity to make

alternative arrangement, we set aside the impugned judgment

and remit the matter to the High Court. We request the High

Court to restore the appeal to its original number i.e., Criminal

Appeal No. 1440-SB of 2001 and dispose of the same after

affording opportunity to both sides particularly, to the

appellant. Since the appellant is in jail, we request the High

Court to give priority and dispose of the matter within a period

of four months from the date of the receipt of the copy of this

order.

The appeal is disposed of accordingly.

..........................................J. (P. SATHASIVAM)

..........................................J.

4 (DR. B.S.CHAUHAN) NEW DELHI;

AUGUST 16, 2010.

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