SURYA BAKSH SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal brings to the fore the rampant manipulation and misuse of the statutory right to appeal by an ever increasing number of convicts who take recourse to this remedy with the objective of defeating the ends of justice by obtaining orders of bail or exemption from surrender, and thereupon escape beyond the reach of the law. Jural compulsions now dictate that this species of appeals should be consciously dismissed on the ground of occasioning a gross abuse of the judicial process and an annihilation of justice. The need to punish every transgressor of the law is ubiquitously accepted in all legal persuasions throughout the ages. Kautilya's Arthasastra opines that - "By not punishing the guilty and punishing those not deserving to be punished, by arresting those who ought not to be arrested and not arresting those who ought to be arrested; and by failing to protect subjects from thieves etc. through these causes - decline, greed and dis-affection are produced among the subjects. It is punishment alone which maintains both this world and the next." In similar antiquity it has been observed by Plato in his celebrated treatise Laws "....not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evil-doing". In the present time, and from another segment of the globe the necessity of punishment has been articulated thus - "By enforcing a public system of penalties government removes the grounds for thinking that others are not complying with the rules. For this reason alone, a coercive sovereign is presumably always necessary, even though in a well-ordered society sanctions are not severe and may never need to be imposed. Rather, the existence of effective penal machinery serves as men's security to one another" - A Theory of Justice by Rawls.

(2.) It is necessary to distinguish dismissal of appeals in instances where steps have been taken by the Court for securing the presence of the Appellant by coercive means, including the issuance of non-bailable warrants or initiation of proceedings for declaring the Appellant a proclaimed offender by recourse to Part C of Chapter VI of the Code of Criminal Procedure, 1973 (CrPC for short) on the one hand, and those where the Appellant may incidentally and unwittingly be absent when his appeal is called on for hearing. The malaise which we are perturbed about is the wilful withdrawal of the convict from the appellate proceedings initiated by him after he has succeeded in gaining his enlargement on bail or exemption from surrender.

(3.) The legal provisions on this subject are to be found principally in Chapter XXIX of the CrPC. Section 372 reiterates the general principle of law that an appeal is not a right unless it is granted by a statute. This Section states that no appeal shall lie from any judgment or order of a criminal Court except as provided for by the CrPC or by any other law for the time being in force. Section 374(2) thereafter stipulates that any person convicted in a trial held by a Sessions Judge or an Additional Sessions Judge or in a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court. These provisions must immediately be compared with the preceding Chapter XXVIII containing a fasciculus dealing with a Death Sentence which becomes efficacious only on its being confirmed by the High Court. The proviso to Section 368 enjoins that an order of confirmation shall not be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of. The presence or absence of the accused/convict in the cases of Death References, makes little difference since High Courts are duty-bound to give the matter its utmost and undivided attention.