TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 1139
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.... to two years' rigorous imprisonment from four years as far as the imposition of sentence for the offence under Section 13(1)(d) read with Section 13(2) of the Act is concerned and maintained the sentence in respect of the offence under Section 7 of the Act. 4. The accusations which led to the trial of the accusedappellant are that H.R. Prakash, PW-1, the owner of Prakash Transport, was having a contract for the transport of transformers belonging to Karnataka Vidyuth Karkhane (KAVIKA), Bangalore, and the said agreement was for the period 15.9.2000 to 14.9.2001. Under the said agreement, the transporter was required to transport transformers from Bangalore to various places all over Karnataka. Despite the agreement for transportation, three months prior to the lodgment of the complaint, the transport operator did not get adequate transport work. The appellant, who was working as Superintendent of KAVIKA, Bangalore, was incharge of the dispatch department and, therefore, PW-1 approached him. At that juncture, a demand of Rs. 10,000/- was made as illegal gratification to give him more transport loads. The accused-appellant categorically told PW-1 that unless the amount was paid, no ....
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....represented the State. 10. The first plank of submission of the learned counsel for the appellant is that the High Court could not have heard the appeal in the absence of the counsel for the accused and proceeded to deliver the judgment. It is urged by him that though at a later stage, the counsel appeared and put forth his contention, yet the fundamental defect in proceeding to deal with the appeal vitiates the verdict. To bolster the said submission, he has commended us to the decision in Mohd. Sukur Ali v. State of Assam (2011) 4 SCC 729. In the said case, the Division Bench held as follows: - "5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty ....
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....s Court stated thus:- "We are of the view that the High Court should have appointed another advocate as amicus curiae before proceeding to dispose of the appeal. We say so especially for the reason that there are arguable points in the appeal such as the delay in giving the report to the police, the material discrepancy between the version in the FIR and the deposition of PW 4 and the nondisclosure by PW 3 of the alleged confession made by the accused after PW 4 came to the house. The question whether there is clinching circumstantial evidence to convict the appellant also deserves fuller consideration. Without expressing any view on the merits of the case, we set aside the impugned order of the High Court and remand the matter for fresh disposal by the High Court expeditiously, after nominating an amicus to assist the Court." 12. From the aforesaid passage, it is demonstrable that this Court has not stated as a principle that whenever the counsel does not appear, the court has no other option but to appoint an amicus curiae and, thereafter, proceed with the case. What has been stated above is that as there were arguable points in appeal and further whether there was clinching ci....
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.... Attorney for the Damned, Harper Lee's famous novel To Kill a Mocking Bird and Chapter II of the Rules framed by the Bar Council of India, opined thus: - "24. Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the rightminded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of The Gita." Be ....
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.... that it is obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment rendered by the High Court would be absolutely unsustainable. 19. At this juncture, it is apt to survey the earlier decisions of this Court in the field. In Shyam Deo Pandey and others v. The State of Bihar AIR 1971 SC 1606, a two- Judge Bench of this Court was dealing with a criminal appeal which had arisen from the order of the High Court whereby the High Court, on perusal of the judgment under appeal, had dismissed the criminal appeal challenging the conviction. The Court referred to Section 423 of the Old Code and came to hold that the criminal appeal could not be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal or it should consider the appeal on merits and pass final orders. It is further observed that the consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and pass final orders will not be possible unless the reasoning and findings recorded in the judgment und....
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.....It is 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 Ss. 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 different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav's case (AIR 1987 SC 1500) did not apply the provisions of Ss. 385-386 of the Code correctly when it indicat....
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....hat the pronouncement in A.S. Mohammed Rafi (supra), dealt with a different situation altogether and, in fact, emphasis was on the professional ethics, counsel's duty, a lawyer's obligation to accept the brief and the role of the Bar Associations. The principle laid down in Sham Deo Pandey (supra), relying on Siddanna Apparao Patil (supra), was slightly modified in Bani Singh (supra). The two-Judge Bench in Mohd. Sukur Ali (supra), had not noticed the binding precedent in Bani Singh (supra). 24. In Union of India and another v. Raghubir Singh (Dead) by LRs etc. (1989) 2 SCC 754, the question arose with regard to the effect of the law pronounced by the Division Bench in relation to a case relating to the same point subsequently before a Division Bench or a smaller number of Judges. Answering the said issue, the Constitution Bench has ruled thus: - "It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Div....
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....nstitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available." 26. Another Constitution Bench in Pradip Chandra Parija and others v. Pramod Chandra Patnaik and others (2002) 1 SCC 1 has laid down that judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, the reasons why it could not agree with the earlier judgment. 27. In Chandra Prakash and others v. State of U.P. and another (2002) 4 SCC 234, the Constitution Bench referred to the view expressed in Raghubir Singh's case and Parija's case and opined that in Parija's case it has been held that judicial discipline and propriety demanded a Bench of two learned ....
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....e appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. With great respect, we are disposed to think, had the decision in Bani Singh (supra) been brought to the notice of the learned Judges, the view would have been different. 30. Presently, we shall proceed to deal with the concept of per incuriam. In A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602, Sabyasachi Mukharji, J. (as His Lordship then was), while dealing with the said concept, had observed thus: - "42. ... 'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong." 31. Again, in the said decision, at a later stage, the Court observed: - "47. ... It is a settled rule that if a decision has been given per incuriam the court can ignore it." 32. In Pu....
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.... court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. 36. In view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali (supra) to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh (supra), is per incuriam. We may hasten to clarify that barring the said aspect, we do not intend to say anything on the said judgment as far as engagement of amicus curiae or the decision rendered regard being had to the obtaining factual matrix therein or the role of the Bar Association or the lawyers. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance. That apart, it is noticeable that after the judgment was dictated in open court, the counsel appeared and he was allowed to p....
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.... to make his story credible, has also gone to the extent of stating that he had accompanied the accused to his office where the accused took PW-1 to one side of the room and paid the money. The testimony of this witness has to be discarded as it is obvious that he has put forth a concocted and totally improbable version. The learned Sessions Judge as well as the High Court is correct in holding that the testimony of this witness does not inspire confidence and we accept the same. 40. The next limb of the said submission is that the accused was not in-charge of allotment of work and, hence, could not have granted any benefit to the complainant and the allegation of the prosecution that he had shown an official favour to the complainant has no legs to stand upon. On a scrutiny of the testimony of PW-2, it is demonstrable that there had been demand of money from PW-2 and acceptance of the same. As far as the official favour is concerned, though the allotment of work was done by the Manager, it has come out in the evidence of PW-4 that the immediate assignment of the loads of contractors was the responsibility of the accused. He had the responsibility for assignment of loads and in th....