# Ram Rang Bharti v. State of U.P. and Another

- **Citation:** (2010) 2 ILRA 463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-19
- **Case number:** Criminal Application No. 2162 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-rang-bharti-v-state-of-u-p-and-another-41590
- **Pages:** 4

## Headnote

Code of Criminal Procedure- Section 482dismissal of Criminal Appeal in default-in
absence of counsel for Appellant-the
Lower appellate to fallow the procedure
prescribed under section 385 and 386even in absence of counsel for appellant
the court is bound to peruse the record
and the impugned judgement-then pass
appropriate
order
on
merit-heldimpugned
order
not
only
causing
miscarriage of justice but amounts to
abuse
the
process
of
court
order
quashed with consequential directions.
Held: Para 9

In view of the aforesaid reasons, the
impugned dismissal order has not only
occasioned in causing miscarriage of
justice but also amounts to abuse of the
process of the court, therefore, it seems
to be just and expedient to exercise
inherent power under section 482 of the
Code and to quash the dismissal order
dated 05.09.2008.
Case law discussed:
[1996 (4) SCC 720], [AIR 2008 SC 920], [AIR
1987 SC 1500]

## Text

2 All] Ram Rang Bharti V. State of U.P. and Another
463
allowed. The impugned order dated
27.4.2010 is set aside. The matter is
remanded to the learned trial court to
reconsider the application under section
319 CrPC in the light of the aforesaid
observations and pass an appropriate
order
in
accordance
with
law
expeditiously.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.05.2010

BEFORE
HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 2162 of 2010
Case: U/S 482/378/407

Ghan Shayam

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Abdul Rafey Siddiqui
Rehan Ahmad Siddiqui

Counsel for the Respondent:
G.A.

Code of Criminal Procedure- Section 482dismissal of Criminal Appeal in default-in
absence of counsel for Appellant-the
Lower appellate to fallow the procedure
prescribed under section 385 and 386even in absence of counsel for appellant
the court is bound to peruse the record
and the impugned judgement-then pass
appropriate
order
on
merit-heldimpugned
order
not
only
causing
miscarriage of justice but amounts to
abuse
the
process
of
court
order
quashed with consequential directions.
Held: Para 9

In view of the aforesaid reasons, the
impugned dismissal order has not only
occasioned in causing miscarriage of
justice but also amounts to abuse of the
process of the court, therefore, it seems
to be just and expedient to exercise
inherent power under section 482 of the
Code and to quash the dismissal order
dated 05.09.2008.
Case law discussed:
[1996 (4) SCC 720], [AIR 2008 SC 920], [AIR
1987 SC 1500]

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. This petition under section 482 of
the Code of Criminal Procedure has been
filed to quash the impugned order
05.09.2008 passed by the Additional
Sessions
Judge,
Ambedkarnagar
in
Criminal Appeal No. 17 of 2007.

2. Heard learned counsel for the
applicant and the learned AGA and
perused the impugned order.

3. It appears that the applicant Ghan
Shyam was convicted and sentenced
under section 7/16 of the Prevention of
Food Adulteration Act by the Chief
Judicial Magistrate, Ambedkarnagar vide
the judgement and order dated 11.10.2007
rendered in Criminal Case No. 340 of
1999. The applicant preferred a criminal
appeal questioning the order of conviction
and sentence but the learned Additional
Sessions Judge, Ambedkarnagar instead
of dismissing the appeal on merit,
dismissed the same in default of the
applicant on 05.09.2008. The dismissal
order is being reproduced as follows:

"Case called out.
Appellant absent.
Today case fixed for argument.
Appellant neither present nor move an
adjournment application.
exemption application moved by appellant
but none is present to press,
hence rejected.
Call repeated
464 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
It is 3.30 p.m.
Order
Appeal is dismissed on default of
appellant.
sent back to concerned lower Court
within 15 days to comply with the
sentence order against accused.
File be consigned."

4. Dismissal of a criminal appeal in
default of the appellant is not recognized
in the criminal jurisprudence. If any
criminal appeal is entertained for hearing
and is not dismissed summarily under
section 364 of the Code of Criminal
Procedure (in short ?the Code?) at the
stage of admission, the appellate court has
to follow the procedure prescribed under
sections 385 and 386 of the Code for
hearing and disposal of the appeal. An
opportunity of hearing to the appellant as
well as to the State is necessary. In case
the appellant, despite the opportunity
given, fails to appear on the date fixed for
hearing,
the
appellate
court
cannot
dismiss the appeal in default of the
appellant and is bound to peruse the
record and the judgement and order
appealed against on merit and pass
appropriate order on the basis of the
materials on record. In appropriate cases
the appellate court may consider to
appoint an Amicus Curie to represent the
appellant and to assist the court, specially
when, the appellant is in jail and is not
represented by an Advocate.

5. The aforesaid proposition has
been propounded by the Apex Court in
various decisions and some of them are
Bani Singh & others v State of U.P.
[1996(4) SCC 720] and Dharampal &
others v State of U.P. [AIR 2008 SC
920].

6. In Bani Singh's case (supra), a
three Judge Bench of the Apex Court
while overruling the case of Ram Naresh
Yadav v State of Bihar [AIR 1987 SC
1500] laid down the following principles:

"14. We have carefully considered
the view expressed in the said two
decisions of this Court and, we may state
that the view taken in Shyam Deo' case
appears to be sound except for a minor
clarification
which
we
consider
necessary
to
mention.
The
plain
language of Section 385 makes it clear
that if the Appellate Court does not
consider the appeal fit for summary
dismissal, it 'must' call for the record
and Section 386 mandates that after the
record is received, the Appellate Court
may dispose of the appeal after hearing
the accused or his counsel. Therefore,
the plain language of Sections 385-386
does not contemplate dismissal of the
appeal for non-prosecution simplicitor.
On the contrary, the Code envisages
disposal of the appeal on merits after
perusal and scrutiny of the record. The
law clearly expects the Appellate Court
to dispose of the appeal on merits, not
merely by perusing the reasoning of the
trial court in the judgment, but by crosschecking the reasoning with the evidence
on record with a view to satisfying itself
that the reasoning and findings recorded
by the trial court are consistent with the
material on record. The law, therefore
,does not envisage the dismissal of the
appeal for default or non-prosecution
but only contemplates disposal on merits
after perusal of the record. Therefore,
with respect, we find it difficult to agree
with the suggestion in Ram Naresh
Yadav case that if the appellant or his
pleader is not present, the proper course
2 All] Ghan Shayam V. State of U.P.
465
would be to dismiss an appeal for nonprosecution."

7. In Dharampal's case (supra), the
Apex Court relied on the verdict given in
Bani Singh's case (Supra) and propounded
the following principles:

"When the accused does not appear,
it is the bounden duty of the High Court
to look into the records and the other
materials on record, including the
judgement of the trial court and
thereafter, decide the appeal on merits
which would be due compliance with Ss
385 and 386 in disposing of criminal
appeals. The Appellate Court must
dispose of the judgement of the trial
court even if the appellant or his counsel
was not present at the time of hearing of
the appeal."

8. The instant petition has been filed
under section 482 of the Code, which has
conferred a very wide power on the High
Court which should be exercised in
appropriate cases to give effect to an
order under the Code or to prevent abuse
of the process of the court or to otherwise
secure the ends of justice. The inherent
power under section 482 has not limits
and it is to be exercised ex debito justitiae
to do real and substantial justice for the
administration of which alone the courts
exists.

9. In view of the aforesaid reasons,
the impugned dismissal order has not only
occasioned in causing miscarriage of
justice but also amounts to abuse of the
process of the court, therefore, it seems to
be just and expedient to exercise inherent
power under section 482 of the Code and
to quash the dismissal order dated
05.09.2008.

10. The petition is therefore allowed
and the order dated 05.09.2008 is set
aside.

11. The learned Sessions Judge,
Ambedkarnagar is directed to hear and
decide the Criminal Appeal No. 17 of
2007 (Ghan Shyam v State of U.P.)
himself on merits.

12. The learned counsel for the
applicant submitted that the applicant is in
jail on the basis of the warrant issued by
the
Chief
Judicial
Magistrate,
Ambedkarnagar. If it is so, the applicant
may move a bail application before the
Sessions Judge, Ambedkarnagar and the
same shall be considered and disposed of
expeditiously, if possible on the same day.

13.

Before
parting
with
the
judgement, I would like to add herewith
that the learned Additional Sessions
Judge, Ambedkarnagar has committed
callous carelessness in dismissing the
appeal in the absence of the appellant. It
appears that he had no legal knowledge as
to how the criminal appeals are heard and
disposed of. In this view of the matter, the
Registrar General of the Court is directed
to send a copy of this judgement to the
concerned Officer for his guidance and he
may be advised to be careful in future in
considering and disposing of criminal
appeals.
----------
466 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.05.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 2521 of 2010
Case: U/S 482/378/407

Ganga Ram Pandey

 ...Petitioner
Versus
State of U.P.

 Respondent

Counsel for the Petitioner:
Amit Tripathi

Counsel for the Respondent:
G.A.

Code of Criminal Procedure Section 482Rejection of application v/s 156(3)
Cr.P.C. on ground of bar of section 195
(i) (b) (iii) Cr.P.C.-without consideration
of
fact
whether
forgery
committed
before filling such document before High
Court on after filling the same-Forgery
committed before filling the documentheld-No application of bar of section 195
(i) (b) (iii)-order passed by Court below
Quashed with necessary directions

Held: Para 7and 8

As per the allegations made in the
petition moved by the applicant before
the Magistrate, the documents which
were alleged to be forged were filed in
the
proceeding
of
this
Court
after
committing the forgery outside the court
and there was no allegation that the
forgery
was
committed
in
such
documents after their production in the
concerned judicial proceeding of this
Court.

Neither the Magistrate nor the Sessions
Judge was justified in rejecting the
applicant's
application under section
156(3) of the Code on the ground of bar
of section 195(1)(b)(ii) of the Code.
Case law discussed
2005 U.P.Cr. R. Page 500 S.C., AIR 2005 SC
2119

(Delivered by Hon'bleShri Kant Tripathi, J.)

1. Heard learned counsel for the
applicant and the learned counsel for the
respondent no. 3 and the learned AGA
and perused the record.

2. It appears that the applicant
moved an application under section
156(3) of the Code of Criminal Procedure
(in short "the Code") before the II-Judicial
Magistrate, Faizabad vide Misc. Case No.
367 of 2009 (Ganga Ram Pandey v Vijay
Kumar Shukla). The learned Magistrate
rejected the application on 03.07.2009 on
the ground that the forged documents
were produced in the High Court,
therefore, only the High Court had power
to take cognizance. The learned Sessions
Judge upheld the Magistrate's order vide
his order dated 25.07.2009 in Criminal
Revision No. 200 of 2009 relying on the
decision of K. Vengadachalam v KC
Palanisamy & others [2005 U.P.Cr. R.
Page 500 S.C.) and held that the learned
Magistrate had passed a justified order.

3. It may not be out of context to
mention that there was no question of
invoking the provisions of Section 195 of
the Code at the stage of passing an order
under section 156 (3) of the Code or at the
stage of investigation. The provisions is
attracted only when the Magistrate is
required to take cognizance of the
offence/offences under section 190 of the
Code.

4. Section 195 (1)(b)(ii) of the Code
has specifically provided that any offence