TaxTMI 
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2015 (9) TMI 118
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....cline, greed and dis-affection are produced among the subjects. It is punishment alone which maintains both this world and the next." In similar antiquity it has been observed by Plato in his celebrated treatise Laws "....not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evil-doing". In the present time, and from another segment of the globe the necessity of punishment has been articulated thus - "By enforcing a public system of penalties government removes the grounds for thinking that others are not complying with the rules. For this reason alone, a coercive sovereign is presumably always necessary, even though in a well-ordered society sanctions are not severe and may never need to be imposed. Rather, the existence of effective penal machinery serves as men's security to one another" - A Theory of Justice by Rawls. 2. It is necessary to distinguish dismissal of appeals in instances where steps have been taken by the Court for securing the presence of the Appellant by coercive means, including the issua....
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....r of acquittal shall be entertained except with its express leave. Accordingly, appeals against acquittal are distinct from all others. Section 383 prescribes that if the Appellant is in jail he may present his appeal to the officer in-charge of the jail who shall thereupon forward it to the appropriate Appellate Court. Section 384 enables the dismissal of appeals summarily or in limine provided the Appellant or his pleader has received a reasonable opportunity of being heard. Where appeals are not dismissed summarily, Section 385 prescribes the issuance of notice to the Appellant or his pleader by the State Government indicating the time and place when the appeal has been scheduled to be heard. While the Appellate Court has the option to call for the records of the case at the stage of the initial hearing of an appeal under Section 384 by virtue of use of the word "may", it becomes mandatory for it to do so at the time of the final hearing. 5. Section 386 of the CrPC is of importance for the purposes before us. It requires the Appellate Court to peruse the records, and hear the Appellant or his pleader if he appears; thereafter it may dismiss the appeal if it considers that there....
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....ppeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. Thirdly, none of the provisions of the CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of 'justice', suffice it to say that it encompasses not just the rights of the convict, but also of victims of crime as well as of the law abiding section of society who look towards the Courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If convicts can circumvent the consequence of their conviction, peace, tranquility and harmony in society will be reduced to a chimera. Section 482 emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that Section 482 of the CrPC has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal Courts. 7. This Court was called upon to constru....
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....rence essentially when it is clear that the law has been considered in detail and that its articulation is, therefore, an elucidation and exposition of the law. Faciously, Ram Naresh Yadav does not fall in this category; in any event, it has been stoutly overruled by Three Judge Bench. The words in Kishan Singh quoted by us above are encouragement for applying Section 482 of the CrPC to cases where the Appellant/convict chooses not to prosecute the appeal after being enlarged on bail or being exempted from surrender. 9. Bani Singh, a Three Judge Bench decision, posits that if an appeal is not dismissed summarily, then the Appellate Court should, after perusing the records, hear the Appellant or his pleader. This Court clarified that "the law does not enjoin that the court shall adjourn the case if both the Appellant and his lawyer are absent. ..... It can dispose of the appeal after perusing the record and judgment of the Trial Court. ..... if the accused is in jail and cannot, on his own, come to Court, it would be advisable to hear 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 Co....
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....duly predicated on a careful consideration of the material on record. It was observed that - "The position, of course, would have been different if the High Court had simply dismissed the appeal without going into the merits...... That being the position, it cannot be said that the High Court had ignored the basic principles of criminal justice while disposing of the appeal ex parte". Dharam Pal and for that matter Bani Singh or Shyam Deo Pandey neither proscribe the invocation of Section 482 of the CrPC nor opine that dismissal of an appeal under Section 482, for good reasons which are lucidly spelt out, is improper. It has not hithertofore even been considered that Section 482 of the CrPC should be applied in circumstances of the wilful abscondence of the Appellant/convict in contumacious and deliberate disregard and disobedience of the terms and conditions on which he was enlarged on bail or exempted from surrender. 11. The discussion would not be complete without noticing the Orders in Parasuram Patel v. State of Orissa, (1994) 4 SCC 664 and Madan Lal Kapoor v. Rajiv Thapar, (2007) 7 SCC 623. In neither of these cases had the Appellate Court taken steps available to it to ensu....
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....eme Court has on several occasions expounded to have existed from time immemorial, predating the present as well as the previous CrPC, must be pressed into action lest the already fragile policing and prosecuting branches of governance are rendered redundant. Since Section 482 of the CrPC was not considered by either of the Three Judge Benches of this Court, we have not found it necessary to resort to recommending the matter for being laid before a Larger Bench. The facts and pronouncement in Bani Singh cannot be extrapolated to the factual matrix before us. On the contrary the opinion in Ram Naresh Yadav as well as in Kishan Singh are available to us to ensure that preventive action is devised to combat the abuse of Court process so that facilitative steps are taken to secure the ends of justice. 12. Section 482 of the CrPC is of singular and seminal significance. The statutory provision which immediately comes to mind is Section 151 of the CPC because to a great extent the language is identical. We are juxtaposing the two Sections for the facility of reference:- |Section 482 of CrPC |Section 151 of CPC |Saving of inherent power of High|Saving of inherent powers of &....
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....hat there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities ..... The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and it is preserved by the Court". Raj Kapoor v. State (Delhi Administration), AIR 1980 SC 258 considered the question whether the inherent power of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. The view was that- "Section 482 contradicts this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law; when a specific provision is made, easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code". In State of Punjab v. Kasturi Lal, (200....
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.... record and judgment of the trial court. (e) 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 Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (f) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation. 15. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that a....