MUKESH Vs. STATE

JUDGEMENT

(1.) WE are concerned with the rampant manipulation and misuse of the statutory right to appeal by convicts who quite palpably take recourse to filing of appeals with the sole objective of defeating justice by obtaining bail and thereafter escaping out of the reach of law. Jural compulsions dictate that this species of appeals should be consciously dismissed on the ground of occasioning gross abuse of judicial process and an annihilation of the ends of justice. This approach has found favour with the High Courts of Bombay and patna. It is necessary to distinguish between dismissal of appeals in this set of circumstances, namely, where steps have been taken for securing the presence of the appellant by coercive means, including the issuance of non-bailable warrants or 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 instances where the appellant may incidently not be present when the appeal is called on for hearing. In other words, the malaise which we have in perspective is the wilful withdrawal of the convict from the appellate proceedings initiated by him. Looking to the gravity and general importance of this conundrum we have requested Mr. P. K. Dey, Advocate to assist us as amicus curiae and supplement or oppose, as the case may be, the arguments of Ms. Purnima Sethi and of Mr. Manoj Ohri, learned counsel for the state.

(2.) WE shall first deal with legal provisions on this subject which are to be found principally in Chapter XIX 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. Although it may be uncommon, there are instances where appeals are not preferred by a convict who has received a sentence of incarceration of a period of seven years or more than seven years. These provisions must immediately be compared with the preceding chapter-XVIII containing a fasciculus dealing with death sentences which become efficacious only on 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, will make no material difference since the High Courts would invariably be duty-bound to give the matter its utmost and undivided attention. Since it is conceivable that an appeal may not be filed in the High Court by a convict who is to undergo more than seven years imprisonment, the efficacy, legal correctness and propriety of such a sentence is not dependent on receiving the imprimatur of the High Court.

(3.) SECTION 378 of the Crpc declares inter alia that no appeal to the High court against an order of acquittal shall be entertained except with the leave of the High Court. Accordingly, appeals against acquittal are distinct from all others. Section 383 prescribes that if the appellant is in jail he may present his appeal to the officer in charge of the jail who shall thereupon forward such a petition together with copies thereof to the appropriate Appellate Court. Section 384 enables the dismissal of appeals summarily or in limine provided the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. We shall revert to the use of the words "reasonable opportunity of being heard" later in this Judgment. Where appeals are not dismissed summarily, Section 385 prescribes the issuance of notices to the appellant or his pleader by the State Government indicating the time and place when the appeal will be heard. While it is optional to the Appellate Court to call for the records of the case at the stage of the initial hearing of an appeal under Section 384 by virtue of use of the word "may", it is mandatory for it to do so at the time of the final hearing on merits.