In Criminal Law, The Remedy Of Appeal Can't Be Allowed To Be Defeated On Technical Grounds: Punjab & Haryana High Court [Read Order]

The Bench of Justice Manoj Bajaj was hearing a criminal revision, against the orders dated 11.01.2017 and 16.01.2019 passed by the appellate court (Nawanshahr), whereby, firstly the appellant's application for condonation of two days delay in filing the criminal appeal against the the judgment of his conviction was permitted to be withdrawn, and later the appeal was also dismissed qua the petitioner.

In fact, it was contended by the Petitioner, that the petitioner, along with his co-accused was put to trial in the above FIR and the same ended in his conviction and a sentence of three years rigorous imprisonment was imposed upon the convicts.

Aggrieved against the said judgment of conviction, an appeal was filed by both the convicts jointly which carried a delay of two days and a separate application for its condonation was also filed.

Thereafter, only on the statement of his counsel, the application for the condonation of delay was permitted to be withdrawn by the Court below, and at the same time, the notice of the appeal qua co-convict was issued to the State.

It was further submitted before the Court that since his application for delay condonation stood withdrawn, therefore, subsequently, his appeal was also dismissed by the appellate court.

It was argued that his counsel (before the Appellate court below) withdrew the application on the ground that he (accused/appellant) did not contact him.

It was argued that the appellate court ought to have issued notice to the appellant before accepting the prayer of the Counsel.

It was also pointed out that the acceptance of the request of the counsel for the appellant adversely affected the petitioner as the appeal was finally dismissed without hearing the appellant.

Court's Observations

The Court took into account the fact that, every day, counsel make prayers before the Courts for withdrawal of applications or petitions and such authority is conferred upon them by their clients by execution of power of attorney,

But at the same time, the Court remarked, the Courts have to be careful before accepting such a prayer and must examine the consequences of the withdrawal, keeping in mind the nature of the petition and the prayer made therein.

In this context, the Court said,

"In cases, where the acceptance of the request for withdrawal of the application or the petition would cause prejudice to the litigant by leaving him without redress, in that eventuality, the Court must not only seek an explanation from the counsel, who makes the prayer, but should itself mention the reasons for acceptance in the order."

In context of the present matter, the Court remarked,

"This adversely affected the statutory right of the convict and, therefore, the appellate court ought to have issued notice to the convict. Appellate Court without considering the impact of the withdrawal of the application for condonation of delay, accepted the prayer made by his counsel and proceeded with the appeal of the co-convict."

Further, the Court also observed,

"Merely because the appellant failed to contact his lawyer, it would not offer a ground for the counsel to extinguish convict's right to appeal, as alternatively, the counsel could have requested for withdrawal of the power of attorney, for no instructions. Apparently, the prayer made by the counsel for the appellant for withdrawal of application for condonation of delay was against the interest of the appellant, as it attached finality to the judgment of conviction, thereby leaving no remedy for him, but to serve the sentence."

Importantly, the Court noted that it does not appeal to common sense that once the convict has chosen to challenge the the judgment of conviction, why he would abandon his statutory right abruptly to embrace the punishment recorded by the trial Court.

Resultantly, the revision petition was allowed and the impugned orders were set-aside and it was ordered that the appeal filed by the petitioner be decided on merits in accordance with law after hearing the convict or his pleader.