Already Admitted Criminal Appeal Against Conviction Cannot Be Dismissed On The Ground That Accused Is Absconding : Supreme Court

The Supreme Court observed that an already admitted appeal against conviction cannot be dismissed on the ground that the accused is absconding.

In this case, the accused was convicted by the Trial Court under Sections 302 and 120B of the Indian Penal Code (IPC) and Section 27(1) of the Arms Act, 1959. He filed appeal before the High Court under under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973. On 29th October 2009, a Division Bench of the High Court admitted the appeal for hearing. When the application for suspension of sentence filed by the accused-appellant came up before it, it was brought to the notice of the Court that the accused was absconding. Thereafter, a non-bailable warrant was issued against the accused. Later, the High Court dismissed the appeal observing that though the remedy of an appeal is a valuable right, the appellant - accused forfeited his right to prefer an appeal the moment he escaped from the custody and flagrantly abused the process of law. The High Court also said that it is deviate from the settled principle of law that once the appellate court has refused to dismiss the appeal summarily, the same must be heard on merits.

In appeal, the Apex Court bench noted that the High Court relied upon its earlier decision in Daya Shankar Singh & Anr. v. State of Bihar which was based on Rule 8 of Chapter XII of the Patna High Court Rules.

The said Rule provides 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 on 29th October 2009. Therefore, the said rule, which applies to the pre-admission stage, was not applicable in this case", the bench noted. While allowing the appeal, the bench observed:

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 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.

Case details

Dhananjay Rai @ Guddu Rai vs State of Bihar  | 2022 LiveLaw (SC) 597 | CrA 803 of 2017 | 14 July 2022

Coram: Justices Abhay S. Oka and MM Sundresh

Headnotes

Code of Criminal Procedure, 1973 ; Section 374 (2) - Already admitted appeal against conviction cannot be dismissed on the ground that the accused is absconding. (Para 8) 

Patna High Court Rules - Rule 8 of Chapter XII - 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 - This Rule applies to the pre-admission stage, not applicable after admission. (Para 7)

Summary : Patna HC dismissed an appeal filed against conviction on the ground that appellant accused was absconding - Allowing appeal, Supreme Court observed: 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 adverting to merits -The impugned judgment set aside and the appeal remanded to the High Court for consideration on merits.

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