DHANANJAY RAI @ GUDDU RAI versus STATE OF BIHAR

Citation: [2022] 6 S.C.R. 763 · Decided: 14-07-2022 · Supreme Court of India · Bench: ABHAY S. OKA

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Judgment (excerpt)

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DHANANJAY RAI @ GUDDU RAI
v.
STATE OF BIHAR
(Criminal Appeal No.803 of 2017)
JULY 14, 2022
[ABHAY S. OKA AND M.M. SUNDRESH, JJ.]
Code of Criminal Procedure, 1973 – s.374(2) – Appellant
convicted u/ss.302 and 120B of IPC and s.27(1) of the Arms Act,
1959 – He preferred appeal – High Court of Patna admitted the
appeal for hearing – Meanwhile, appellant went absconding – High
Court dismissed the appeal without adverting to merits on ground
that appellant was absconding – Whether an appeal against
conviction filed by an accused u/sub-section (2) of s.374 CrPC can
be dismissed on ground that the accused was absconding – Held:
The law does not envisage dismissal of appeal for default or non-
prosecution but only contemplates disposal on merits after perusal
of the record –  In the present case, the High Court had relied upon
an earlier High Court decision based on r.8 of Chapter XII of the
Patna High Court Rules which predicates that no appeal against
conviction shall be heard for admission unless the accused has
surrendered to the order of the Court below convicting him to a
sentence of imprisonment except in a case where the appellant has
been released on bail by the trial court after convicting him – In the
case in hand, a non-bailable warrant was issued against the
appellant and his appeal was already admitted – Therefore, the
said rule, which applies to pre-admission stage, was not applicable
in this case – Anguish expressed by High Court about the brazen
action of the appellant of absconding and defeating the
administration of justice can be well understood – However, that is
no ground to dismiss an appeal against conviction, which was
already admitted for final hearing, for non-prosecution without
adverting to merits – Appeal remanded to High Court for
consideration on merits – Patna High Court Rules – Chapter XII,
Rule 8.
[2022] 6 S.C.R. 763
763
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SUPREME COURT REPORTS
[2022] 6 S.C.R.
Remanding the matter to High Court, the Court
HELD:1. In the impugned judgment, the Division Bench
of the Patna High Court has itself recorded that it is deviating
from the settled position of law. Such an approach cannot be
countenanced. The well settled law can be found in the decision
of this Court of a Bench consisting of three Hon’ble Judges in
the case of Bani Singh & Ors. v. State of U.P. It was held that the
plain language of Sections 385-386 CrPC does not contemplate
dismissal of the appeal for non-prosecution simpliciter. On the
contrary, the CrPC envisages disposal of the appeal on merits
after perusal and 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
with 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 for default or non-prosecution but only contemplates
disposal on merits after perusal of the record. [Para 6][767-D;
768-E-G]
2. In the instant case, the High Court relied upon its earlier
decision in the case of Daya Shankar Singh which was based on
Rule 8 of Chapter XII of the Patna High Court Rules which
predicates that no appeal against conviction shall be heard for
admission unless the accused has surrendered to the order of
the Court below convicting him to a sentence of imprisonment
except in a case where the appellant has been released on bail by
the trial court after convicting him. In the case in hand, the appeal
was already admitted. Therefore, the said rule, which applies to
the pre-admission stage, was not applicable in this case. [Para
7][770-B-C]
3. The anguish expressed by the Division Bench about the
brazen action of the appellant of absconding and defeating the
administration of justice can be well understood. However, that
is no ground to dismiss an appeal against conviction, which was
already admitted for final hearing, for non-prosecution without
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adverting to merits. Therefore, the impugned judgment will have
to be set aside and the appeal will have to be remanded to the
High Court for consideration on merits. [Para 8][770-D-E]
Bani Singh & Ors. v. State of U.P. (1996) 4 SCC 720
: [1996] 3 Suppl. SCR 247 – relied on.
Daya Shankar Singh & Anr. v. State of Bihar (2004)
SCC Online Pat 1189 – held inapplicable.
S

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