K G KERALAKUMARAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) When the appeal came up for hearing on 1-2-1995, counsel for the appellant as well as appellant were absent. There was no representation also. The appeal was therefore adjourned to 3-2-1995 to consider whether the appeal can be dismissed for default. On this point arguments were heard. Notice was given to Director General of Prosecutions.

(2.) Heard Director General of Prosecutions and Senior Advocates Sri. M.N. Sukumaran Nayar and Sri .T.R. Raman Pillai and Senior Counsel Sri. T.V. Prabhakaran, apart from other counsel who had also contributed their views on this aspect.

(3.) The Director General of Prosecutions and all the counsel who expressed views in the matter are unanimously of the view that a criminal appeal cannot be dismissed for default. The powers of the appellate court to hear appeals are contained in Chapter XXIX of the Code of Criminal Procedure. In this proceeding we are mainly concerned with Ss.384, 385 and 386. S.384 empowers the court to dismiss the appeal summarily if upon examining the petition of appeal and copy of the judgment received, the appellate court considers that there is no sufficient ground for interfering. The restrictions imposed by the section are that no appeal presented under S.382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same and no appeal presented under S.383 (appeal presented by an appellant in jail) shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the appellate court considers that the appeal is frivolous or that the production of the accused in custody before the court would involve such inconvenience as would be disproportionate in the circumstances of the case. No appeal presented under S.383 shall be dismissed summarily until the period allowed for preferring such appeal has expired. It is also provided that the court may call for the record of the case before dismissing an appeal. The reasons for dismissal under the Section are to be recorded by a Court of Session or a Chief Judicial Magistrate when an appeal is dismissed under S.384. In case an appeal is not dismissed summarily under S.384 of the Code notice shall be given regarding the time and place at which the appeal will be heard. Such notice has to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf. If the appeal is from a judgment of conviction in a case instituted upon complaint notice has to go to the complainant. It is thereafter that the appeal is heard under S.386 of the Code. The Section provides that the appellate court may dismiss an appeal if it considers that there is no sufficient ground for interfering. But this can be done after perusing such record and hearing the appellant or his pleader, if he appears, and Public Prosecutor if he appears, and in case of an appeal under S.377 or S.378 after hearing the accused, if he appears. The other powers conferred on appellate court by the Section are not relevant for the purpose of considering the question formulated in this appeal.