BALA KRISHNA NARAYANA, ARVIND KUMAR MISHRA,JJ. - (1.) Sri Siya Ram Verma, is representing the appellant No. 4, Satyavir. Appellant No. 2, Om Prakash and appellant No. 3, Babban died during the pendency of this appeal and this appeal has already been dismissed as abated qua the aforesaid appellants. With regard to appellant No. 1, Jasvir, who is absconding, we had already passed an order on 23.03.2017 which runs as hereunder:- "Report of Chief Judicial Magistrate, Bulandshahar dated 21.03.2017 forwarded to this Court pursuant to our order dated 17.02.2017 indicates that both the sureties, Dharampal and Dhuri of appellant No. 1, Jasbir have died in the year 2001 and 2015 respectively. Record further shows that bail of appellant No. 1, Jasbir was cancelled by us by our order dated 18.11.2016. But the non-bailable warrant issued against appellant No. 1, Jasbir pursuant to this Court's order, could not be executed against him, as he is untraceable. The other surviving appellant namely appellant No. 4, Satyaveer is represented by Sri S.R. Verma. We do consider it proper to issue any further direction to the Chief Judicial Magistrate, Bulandshahar for locating the whereabouts of absconding appellant No. 1, Jasbir and proceed to hear this appeal finally in his absence. List for final hearing in the next week."
(2.) The order for proceeding with the hearing of this appeal on merits qua appellant No. 1, Jasvir was passed by us on 23.03.2017 keeping in view the legal position distilled by the Apex Court into six propositions in paragraph 19 of its judgement delivered in case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 after a comprehensive analysis of previous decisions on the issue: 19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2 That the Court is bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3 That the court may, as a matter of prudence or indulgence, adjourn the matter but it is bound to do so;" 19.4 That it can dispose of the appeal after perusing the record and judgement of the trial court; 19.5 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 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 19.6 That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.
(3.) We have heard Sri S.R. Verma, learned counsel for the appellant No. 4, Satyavir, Sri Awadesh Narayan Mulla and Kumari Meena, learned AGAs and Smt. Manju Thakur, brief holder for the State.;