KISHAN SINGH versus STATE OF UTTAR PRADESH

Citation: [1992] SUPP. 2 S.C.R. 305 · Decided: 02-11-1992 · Supreme Court of India · Bench: L.M. SHARMA, K. RAMASWAMY, N. VENKATACHALA · Disposal: Appeal(s) allowed

Judgment (excerpt)

KISHAN SINGH 
v. 
STATE OF UTTAR PRADESH 
NOVEMBER 2, 1992 
[LAUT MOHAN SHARMA, K. RAMASWAMY AND 
N. VENKATACHALA, JJ.] 
Code of Criminal Procedure, 1973 : Sections 374, 382, 383, 384. 
Criminal appeal-Non-prosecution-Power of Court to dismiss-Heid 
a criminal appeal cannot be dismissed for non-prosecution-Appel/ate court 
should examine the petition of appeal and judgment under challenge and 
consider the merits of the case before dismissing the appeal summarily-Dis-
tinction between crinlina/ and civil appeal di,1:cussed. 
Civil Procedure Code, 1908 : Order 47 Rule 11, 17 and 19. 
The appellant was convicted under Section 5(2) of the Prevention of 
Corruption Act and was sentenced to two years rigorous imprisonment 
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and a fine of Rs. 200. He filed an appeal under Section 374 of the Criminal 
Procedure Code before the Allahabad High Court which was dismissed for 
default of the appearance of the appellant and his counsel. An application E 
for restoration of the appeal made thereafter was also dismissed. In 
appeal to this Court it was contended on behalf of the appellant that the 
appeal could not have been dismissed for default on the ground of absence 
of the appellant or his counsel to appear and press the appeal. 
Allowing the appeal and setting aside the orders of the High Court, 
this Court, 
HELD: 1. The High Court was not right in dismissing the appeal on 
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the ground of non-appearance of the appellant or his counsel and it 
Should have allowed the prayer of restoration of the criminal appeal under G 
its inherent power. [310-C] 
2. Under Section 384 of the Criminal Procedure Code it is the duty 
of the appellant court to examine the petition of appeal and the judgment 
under challenge and to consider the merits of the case before dismissing 
the appeal summarily. The said duty is not dependent on the appellant or H 
305 
3()(, 
SllPHEME COURT REPORTS [J992J SL:PP. 2 S.C.R. 
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hi; counsel appearing before the Court to press the appeal. As soon as a 
petition of appeal is presented under Section 382 or 383 it becomes the 
dut~' of the appellate court to consider the san1e on merits, even in the 
absence of the apprllant and his counsel before dismissing the same 
summarily. Therefore, the High Court should have either examined the 
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appellant"; petition of appeal and the judgment under challenge, itself or 
appointed a counsel to assist the Court! but could not have proceeded to 
dismiss the same on the ground that the advocate for the appellant was 
not present. [308-G, H; 309-A, CJ 
3. The position of a crhninal appeal is not be same as that of a civil 
appeal. A comparison of the provisions of Section 384 of the Criminal 
Procedure Code with those of Order 41, Rules 11 and 17 of the Civil 
Procedure Code clearly brings out the difference. Rule 17, Order 41 of 
Civil Procedure Code in expres; terms provides that an appeal may be 
dismissed on the ground of absence of the appellant when the appeal is 
called out, and Rule 19 provides for its restoration on the appellant 
offering sufficient cause for his non-appearance. However, in the case of a 
cri1ninal appea! the corresponding provisio~s are not to be found in the 
Code of Criminal Procedure. On the other hand the Code in express terms 
requires the matter to be considered on merits. Thus a criminal appeal 
cannot he dismissed for non-prosecution. [309-D, EJ 
Ram Naresl1 Yadav & Ors. v. State of Bihar, A.l.R. 1987 S.C. 1500, 
dissented form. 
S/lyam Dea Pandey & Or5. v. State of Bihar, [1971] Suppl. S.C.R. 133, 
relied on. 
Emperor v. Baiumai Hotchand and Ors., 39 Criminal Law Journal 
890 and Ramesh Nonu v. State of Gujarat, 17 Gujarat Law Reporter 350, 
referred to. 
CRIMINAL AP PELLA TE JURISDICTION: Criminal Appeal No. 
183 of 1993. 
From the Judgment and Order dated 11.5.1992 of the Allahabad 
High Court in Criminal Appeal No. 1791 of the 1979. 
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Bahar U. Bargi and Anis Suhrawardy for the Appellant. 
KISI IAN SINGH v. ST,\TE OF !J.P. 
307 
The following Order of the Court was delivered: 
The petitioner was convicted by the Special Judge, Mathura under 
Section 5(2) of the Prevention of Corruption Act and was sentenced to t\vo 
years' rigorous imprisonment and a fine of Rs. 200. He filed an appeal 
hcforc the Allahabad High Court which was dismissed for default of the 
appearance of the petitioner and his counsel, when the appeal was called 
out for preliminary hearing. An application for restoration of the appeal 
mad

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