- (1.) When this appeal came up for hearing before us, the advocates at Jaipur and Jodhpur were on strike. This was an unusual situation. We were faced with three alternatives. First, we could have adjourned the appeal for hearing. The second course open to us was to peruse the record by ourselves and decide the appeal on merits. Third, we could have dismissed the appeal for non-prosecution.
(2.) Section 386 of the Code of Criminal Procedure, 1973 provides for hearing of appeals. This section reads as follows: "386. After perusing such record and hearing the appellant or his pleader if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may. (a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass a sentence on him according to law; (b) in an appeal from a conviction; (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) after the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence; (i) reverse the finding and sentence and acquit or discharge the extent, or the nature and extent, of the sentence, but not so as to try the offence, or (ii) after the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, after or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, then might have been inflicted for that offence by the Court passing the order or sentence under appeal." This section corresponds with and is in pari materia with Section 423 of the Code of Criminal Procedure of 1898, (for short 'the old Code'). This Section 423 of the old Code came to be interpreted by the apex Court in Shyamdeo Pandey v. State of Bihar, AIR 1971 SC 1606, wherein their Lorships said (Para 19) : "After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the facts whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits. "
(3.) These observations and provisions of Section 386 of the Code of Criminal Procedure, 1973 were perhaps not brought to the notice of their Lordships of the apex Court, while in deciding Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500, wherein their Lordships, made the following observations (Para 2) : "2. It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end and in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. " ;