BANI SINGH AND OTHERS versus STATE OF U.P.

Citation: [1996] SUPP. 3 S.C.R. 247 · Decided: 09-07-1996 · Supreme Court of India · Bench: A.M. AHMADI

Judgment (excerpt)

BANI SINGH AND OTHERS 
v. 
STATE OF U.P. 
JULY 9, 1996 
[AM. AHMADI. C.J., N.P. SINGH AND 
SUJATA V. MANOHAR, JJ.] 
Oiminal Law : 
Criminal Procedure Code, 1973 : Sections 384 to 386. 
Appeal-Dismissal of-For default or non-prosecutio11 without going 
into merits of casH!eld : Illegal-Appellate Cowt must dispose of appeal 
A 
B 
c 
on me1its after pentsal of record-Appellate Cowt must give a hearing to the 
panies, if present, before disposal of appeal on merits-Notice of hearing of 
appeal must be given either to appellant or his pleader and not to botlr-Ap-
D 
pellate Cowt not obliged to adjown matter if appellant and his lawyer were 
absent-It can dispose of appeal after pe1usal of ffCord and judgment of Ilia/ 
coun-But if the appellant was in jail and his lawyer not present, coun should 
adjoum case to facilitate appearance of accused/appe/lant-111 a suitable case 
cowt could appoint lawyer at State expense to. assist it-T7iis would apply E 
equally if accused was respondent. 
The appellants were convicted under Sections 366 and 368 of the 
Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment 
for three years with a fine of Rs. 100 each. The appellants filed an appeal 
which was admitted by the High Court and notice was issued. The High F 
Court also issued an interim stay on the execution of the sentence and the 
realisation of fine while granting bail to the appellants. When the matter 
came up for hearing the High Court dismissed the appeal for non-
prosecution without going into the merits of the case. Being aggrieved by 
the High Court's judgment the appellants preferred the present appeal. 
G 
Allowing the appeal, this Court 
HELD : 1. The plain language of Section 385 of the Criminal Proce-
dure Code, 1973 makes it clear that if the Appellate Court does not 
consider the appeal fit for summary dismissal, it 'must' call for the record H 
247 
248 
SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R. 
A and Section 386 mandates that after the record is received, the Appellate 
Court may dispose of the appeal after hearing the accused or his counsel. 
Therefore, 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 
B scrutiny of the record. The law clearly expects the Appellate Court to 
dispose of the appeal on merits, not merely by perusing the reasoning of 
the trial court in the judgment, but by cross-checking the reasoning with 
the evidence on record llith a view to satisfying itself that the reasoning 
and findings recorded by the trial court are consistent with the material 
on record. The law, therefore, does not envisage the dismissal of the appeal 
C for default or non-prosecution but only contemplates disposal on merits 
after perusal .of the record. (255-D-~'l 
2.1. The law expects the AJipellate Court to give a hearing to the 
appellant or his counsel, if he is present, and to the public prosecutor if 
D he is present, before disposal of the appeal on merits. Section 385 posits 
that if the appeal is not dismissed summarily, the Appellate Court shall 
cause notice, of the time and place at which the appeal will be heard, to be 
given to the appellant or his pleader. Section 386 then provides that the 
Appellate Court shall, after perusing the record, hear the appellant or his 
pleader, if he appears. It will be noticed that Section 385 provides for a 
E notice of the time and place of hearing of the appeal to be given to either 
the appellant or his pleader and not to both presumably because notice to 
the pleader was also considered sufficient since he was representing the 
appellant. So also Section 386 provides for a hearing to be given to the 
appellant or his lawyer, if he is present, and both need not be heard. It is 
p the duty of the appellant and his lawyer to remain present on the appointed 
day, time and place when the appeal is posted for hearing. This is the 
requirement of the Code on a plain reading of Sections 385-386 of the 
Code. The law does not enjoin that the Court shall adjourn the case if both 
the appellant and his lawyer are absent. If the Court does so as a matter 
of prudence or indulgence, it is a d.ifferent n1atter, but it is not bound to 
G adjourn the matter. It can dispose of the appeal afrer perusing the record 
and the judgment of the trial Court. If the accused is in jail and cannot, 
on his own, come 

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