Judgment:
ORDER
R. Basant, J.
1. Appellate Criminal Courts do find themselves occasionally in the unenviable situation, where the appellants/accused do not take the necessary steps to ensure service of notice on the respondents/complainants. In such cases--in appeals preferred against convictions in prosecutions initiated by a private complainant, what course should the Appellate Courts follow? Is it within their powers to dismiss such appeals on the short ground that necessary steps have not been taken by the concerned appellants? In such a situation do the Appellate Criminal Courts have the power to dismiss an appeal for default? Can provisions in Section 204(4), Cr.P.C. be applied mutatis mutandis to spell out a power for the Appellate Court to dismiss an appeal for default? These are the interesting questions that are raised in this revision petition directed against an appellate judgment dismissing an appeal for non-prosecution by the appellant.
2. The prosecution was under Section 138 of the N.I. Act. The prosecution ended in conviction and sentence. An appeal was preferred by the accused/revision petitioner herein. The learned Sessions Judge did not dismiss the appeal summarily under Section 385, Cr.P.C. It was admitted and notice was ordered to the respondent/complainant. When the matter came up, it was noticed that the appellant was not present. There was no representation for him nor was any steps taken to ensure issue of notice to the respondent/complainant. In these circumstances the Appellate Court proceeded to pass the impugned order, which I extract below:
No representation for appellant. On last hearing also, no representation for appellant. No steps taken by appellant. No batta also paid. Hence appeal is dismissed for non-prosecution by the appellant.
3. The learned Counsel for the appellant submits that the lower Appellate Court has no jurisdiction to dismiss an appeal for default as it has done. Even assuming that the appellant had not taken steps, the records must be perused and an order on merits passed by the Appellate Court, it is contended. The Counsel relies on the stipulations in Section 386 of Cr.P.C. as explained in Bani Singh v. State of U.P. 1996(2) KLT 424 (SC). Whatever be the confusion available earlier in the light of the decisions in Shyam Deo Pandey v. State of Bihar : 1971CriLJ1177 , and Ram Naresh Yadav v. State of Bihar AIR 1987 SC 1500, the position has been settled beyond controversy by the three Judges Bench in Bani Singh (supra) and therefore a criminal Appellate Court does not have the jurisdictional competence to dismiss an appeal already admitted by it for default except on merits. This is the short contention raised by the learned Counsel for the petitioner.
4. I find merit and substance in that contention. The controversy was settled finally and beyond any controversy by the Supreme Court in Bani Singh (supra). A Criminal Appellate Court can dispose of an appeal invoking its powers under Section 386, Cr.P.C. only on merits. There can be no confusion on this aspect. The learned Sessions Judge, who passed the impugned judgment, does not appear to have considered this aspect in detail at all. A power to dismiss for default appears to have been assumed, where none exists in the light of the dictum in Bani Singh. I am certainly in agreement that in Bani Singh the Supreme Court did not have occasion to consider the failure on the part of the appellant to take necessary steps to get the notice served on the prosecutor/complainant. That aspect did not specifically arise for consideration in Bani Singh.
5. My attention has been drawn to the decision in Madhavan v. Chandran Nair 1987(1) KLT 74, where a Single Bench of this Court took the view that the complainant has to be impleaded as a respondent in an appeal from conviction of accused in a case instituted on a complaint. The language of Section 385(1)(iii) makes it clear that notice shall be caused to be given to the complainant if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant. I extract the relevant provisions below:
Section 385. Procedure for hearing appeals not dismissed summarily-
(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given.-
(i) xxx xxx xxx(ii) xxx xxx xxx(iii) If the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;(iv) xxx xxx xxx
It is crucial to note that the obligation is on the Appellate Court to give notice to the complainant. Normally one is justified in assuming that the party/the appellate must take steps to issue notice to the respondent/complainant. But where the law does not specify the consequence of omission it may not be proper to assume that such omission to take steps should entail dismissal for default.
6. Where a complainant in a prosecution launched by the accused does not take the necessary steps for issue of process, the Code of Criminal Procedure permits the Magistrate to dismiss the complaint under Section 204(4) Cr.P.C., which I extract below:
Section 204. Issue of Process-
(1) xxx xxx xxx(2) xxx xxx xxx(3) xxx xxx xxx(4) When by any law for the time being in force any process-fee or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
7. Significantly, a provision similar to Section 204(4), Cr.P.C. is not available at all when it comes to disposal of appeals. It would be idle to assume that the omission is an inadvertent or innocuous omission. The Legislature, it appears to me, had consciously and advisedly not made a provision for such dismissal of an appeal for default considering the consequences involved. The conscience of the system will remain unsatisfied when an appeal, which is found to be worthy of admission and not worthy of dismissal under Section 385, Cr.P.C. is dismissed otherwise than on merits. That appears to be the inescapable rationale that promoted the Legislature not to make any stipulation similar to Section 204(4) in Chapter XXIX while dealing with appeals. Lightly, the Courts cannot trace a power for dismissal of an appeal admitted under Section 385, Cr.P.C. for default without considering the case on merits.
8. How then can the provisions of Section 385(1)(iii) and Section 386 as explained in Bani Singh be reconciled and harmonised? That is the crucial question to be considered. If the appellant does not take steps to issue process to the complainant, who shall take the necessary steps? How shall the Court ensure that notice is issued to the complainant? What coercive processes can the Court employ to ensure that the appellant take the necessary steps for issue of notice to the complainant/prosecutor
9. In Rule 273 of the Kerala Criminal Rules of Practice it is mentioned that process fee shall be leviable at the rates prescribed from time-to-time under the Kerala Court Fees and Suit Valuation Act. It is hence possible to conclude that the process fee which must be paid by an appellant to ensure issue and service of notice on the complainant. But in the absence of a provision like Section 204(4), Cr.P.C. when the appellant/accused does not take steps, it may be possible to dismiss an appeal for non-prosecution or for default an explained in Bani Singh.
10. The Courts would certainly be entitled to insist before admission of an appeal under Section 385, Cr.P.C. that the necessary process fee for issue of notice to the complainant must be paid. In an appropriate case the Court does not lack power to insist and ensure on the personal presence of the appellant by appropriate coercive process also. But be that as it may, the conclusion is inescapable that if the accused does not take steps, the Court will have to do its duty to ensure that notice is issued to comply with the mandate of Section 385(1), Cr.P.C. Problems may arise consequent to failure to the accused to remit process fee and also by failure on his part to furnish the correct address. In either case the duty shall be on the Court to ensure service of notice as insisted by Section 385(1)(iii), Cr.P.C. If the appellant does not take the necessary steps even after his personal presence for that purpose is insisted, the Appellate Court shall have to ensure compliance with the mandate of Section 385(1)(iii) at its expenses.
11. In any view of the matter, therefore, the dismissal of the appeal preferred by the revision petitioner for default by the learned Sessions Judge is without any jurisdiction or authority. The same cannot be justified. The challenge raised in this revision petition must hence succeed.
12. In the result:
(a) This revision petition is allowed.
(b) The impugned judgment is set aside.
(c) The learned Sessions Judge is directed to dispose of the appeal afresh in accordance with law.
13. The petitioner shall appear before the learned appellate Judge on 27.11.2006 to continue the proceedings.