# 4. S.C.R. 155 K.S. PANDURANGA v. STATE OF KARNATAKA

- **Citation:** [2013] 4 S.C.R. 155
- **Court:** Supreme Court of India
- **Decided:** 2013-03-01
- **Case number:** Criminal Appeal No. 373 of 2013
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-155-k-s-panduranga-v-state-of-karnataka-28967
- **Pages:** 32

## Headnote

Prevention of Corruption Act, 1988 - s. 7, s.13(1)(d) rlw
A
B
s. 13(2) and s. 20 - Conviction of accused-appellant u(s. 7 and
u/s.13(1)(d) rlw s.13(2) - Justification of - Held: On facts, c
justified - Demand and acceptance of illegal gratification is
a condition precedent for constituting an offence under the Act
- Statutory presumption uls.20 can be dislodged by the
accused by bringing on record some evidence, either direct
or circumstantial, that money was accepted other than for the o
motive or the reward - In the case at hand, explanation offered
by the appellant does not deserve any acceptance -
Considering the nature of his work, it is ·evident that appellant
was in a responsible position and capable of granting official
favour to the complainant - Defence story of appellant
E
borrowing money from DW1 and repaying Joan to the
complainant in presence of DW1 concocted and totally
improbable - Prosecution established the factum of recovery
from the appellant and also proved the demand and
acceptance of illegal gratification by appellant as motive/ F
reward for showing official favour to the complainant.
Prevention of Corruption Act, 1988 - s. 20 - Statutory
presumption under - Can be dislodged by the accused by
bringing on record some evidence - Duty of the Court in this
regard - Held: When some explanation is offered, the court G
is obliged to consider the explanation uls. 20 - Consideration
of the explanation has to be on the touchstone of
preponderance of probability - It is not to be proven beyond
all reasonable doubt.
155
H
156
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
Appeal - Appeal against conviction - Dismissed -
Dismissal challenged - Plea of accused-appellant that the
appellate Court (High Court) should not have decided the
appeal on merits in absence of the appellant's counsel -
Held: Not ·tenable :.... The court deciding the criminal appeal
8 is not bound to adjourn the matter if both the appellant or his
counseV lawyer are absent though the court may, as a matter
of prudence or indulgence, do so - It can dispose of the
appeal after perusing the record and judgment of the trial
court - It cannot be said that the ·court cannot decide a
C criminal appeal in absence of the counsel for the accusedappellant.
Sentence I Sentencing - Appellant convicted and
sentenced by courts below under provisions of the Prevention
of Corruption Act for committing criminal act relating to
D demand and acceptance of bribe - Plea of appellant before
Supreme Court for reduction of the period of sentence to the
period already undergone in custody - Held: Not tenable -
Relevant statutory provisions under the Prevention of
Corruption Act provide for a minimum sentence - Where
E minimum sentence is provided, it is not appropriate to
exercise jurisdiction under Article 142 of the Constitution to
reduce the sentence on the ground of any mitigating factor -
However, regard being had to the age and ailments of the
accused-appellant, sentence of imprisonment u/s.13(1)(d) rl
F w s.13(2) reduced from two years (as imposed by High Court)
to the statutory minimum sentence of one year - Prevention
of Corruption Act, 1988 - s. 7 and s.13(1){d) rlw s.13(d) -
Constitution of India, 1950 - Article 142.
The prosecution case was that the accused-appellant __
G had demanded and accepted illegal gratification of
Rs.5,000/- as motive I reward for showing official favour
to PW1-transport operator, i.e., allotting transport loads
and that thus, by means of corrupt and illegal means,
H
abused his position and obtained a pecuniary advantage.
K.S. PANDURANGA v. STATE OF KARNATAKA
157
The trial court convicted the appellant under Sections 7,
A
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. In appeal, the High Court confirmed
the conviction.
In the instant appeal, the conviction of the appellant
8
was challenged on merits as also on the ground that the
High Court could not have heard the appeal in absence
of the counsel for the accused-

## Text

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[2013] 4. S.C.R. 155
K.S. PANDURANGA
v.
STATE OF KARNATAKA
(Criminal Appeal No. 373 of 2013)
MARCH 01, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Prevention of Corruption Act, 1988 - s. 7, s.13(1)(d) rlw
A
B
s. 13(2) and s. 20 - Conviction of accused-appellant u(s. 7 and
u/s.13(1)(d) rlw s.13(2) - Justification of - Held: On facts, c
justified - Demand and acceptance of illegal gratification is
a condition precedent for constituting an offence under the Act
- Statutory presumption uls.20 can be dislodged by the
accused by bringing on record some evidence, either direct
or circumstantial, that money was accepted other than for the o
motive or the reward - In the case at hand, explanation offered
by the appellant does not deserve any acceptance -
Considering the nature of his work, it is ·evident that appellant
was in a responsible position and capable of granting official
favour to the complainant - Defence story of appellant
E
borrowing money from DW1 and repaying Joan to the
complainant in presence of DW1 concocted and totally
improbable - Prosecution established the factum of recovery
from the appellant and also proved the demand and
acceptance of illegal gratification by appellant as motive/ F
reward for showing official favour to the complainant.
Prevention of Corruption Act, 1988 - s. 20 - Statutory
presumption under - Can be dislodged by the accused by
bringing on record some evidence - Duty of the Court in this
regard - Held: When some explanation is offered, the court G
is obliged to consider the explanation uls. 20 - Consideration
of the explanation has to be on the touchstone of
preponderance of probability - It is not to be proven beyond
all reasonable doubt.
155
H
156
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
Appeal - Appeal against conviction - Dismissed -
Dismissal challenged - Plea of accused-appellant that the
appellate Court (High Court) should not have decided the
appeal on merits in absence of the appellant's counsel -
Held: Not ·tenable :.... The court deciding the criminal appeal
8 is not bound to adjourn the matter if both the appellant or his
counseV lawyer are absent though the court may, as a matter
of prudence or indulgence, do so - It can dispose of the
appeal after perusing the record and judgment of the trial
court - It cannot be said that the ·court cannot decide a
C criminal appeal in absence of the counsel for the accusedappellant.
Sentence I Sentencing - Appellant convicted and
sentenced by courts below under provisions of the Prevention
of Corruption Act for committing criminal act relating to
D demand and acceptance of bribe - Plea of appellant before
Supreme Court for reduction of the period of sentence to the
period already undergone in custody - Held: Not tenable -
Relevant statutory provisions under the Prevention of
Corruption Act provide for a minimum sentence - Where
E minimum sentence is provided, it is not appropriate to
exercise jurisdiction under Article 142 of the Constitution to
reduce the sentence on the ground of any mitigating factor -
However, regard being had to the age and ailments of the
accused-appellant, sentence of imprisonment u/s.13(1)(d) rl
F w s.13(2) reduced from two years (as imposed by High Court)
to the statutory minimum sentence of one year - Prevention
of Corruption Act, 1988 - s. 7 and s.13(1){d) rlw s.13(d) -
Constitution of India, 1950 - Article 142.
The prosecution case was that the accused-appellant __
G had demanded and accepted illegal gratification of
Rs.5,000/- as motive I reward for showing official favour
to PW1-transport operator, i.e., allotting transport loads
and that thus, by means of corrupt and illegal means,
H
abused his position and obtained a pecuniary advantage.
K.S. PANDURANGA v. STATE OF KARNATAKA
157
The trial court convicted the appellant under Sections 7,
A
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. In appeal, the High Court confirmed
the conviction.
In the instant appeal, the conviction of the appellant
8
was challenged on merits as also on the ground that the
High Court could not have heard the appeal in absence
of the counsel for the accused-appellant and proceeded
to deliver the judgment.
Disposing of the appeal with modification in the C
sentence, the Court
HELD: 1.1. In Bani Singh case, a three Judge Bench
of the Supreme Court was called upon to decide whether
the High Court was justified in dismissing the appeal filed o
by the accused-appellants therein against the order of
conviction and sentence issued by the trial court for nonprosecution. From the aforesaid decision, the following
principles can be culled out: (i) that the High Court cannot
dismiss an appeal for non-prosecution simpliciter E
without examining the merits; (ii) that the court is not
bound to adjourn the matter if both the appellant or his
counsel/lawyer are absent; (iii) that the court may, as a
matter of prudence or indulgence, adjourn the matter but
it is not bound to do so; (iv) that it can dispose of the
appeal after perusing the record and judgment of the trial
F
court; (v) 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 accused-appellant if his lawyer is not present, and if
the lawyer is absent and the court deems it appropriate G
to appoint a lawyer at the State expense to assist it,
nothing in law would preclude the court from doing so;
and (vi) that if the case is decided on merits in the absence
of the appellant, the higher court can remedy the
situation. [Paras 21, 22] [173-D; 175-A-D]
H
158
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
1.2. The two Judge Bench in Mohd. Sukur Ali case
had not noticed the binding precedent in Bani Singh
case. The dictum in Mohd. Sukur Ali case to the effect that
the court cannot decide a criminal appeal in the absence
of counsel for the accused and that too if the counsel
B does not appear deliberately or shows negligence in
appearing, being contrary to the ratio laid down by the
larger Bench in Bani Singh, is per incuriam. The
contention of the appellant that the High Court should
not have decided the appeal on its merits without the
c presence of the counsel does not deserve acceptance.
D
E
That apart, it is noticeable that after the judgment was
dictated in open court, the counsel appeared and he was
allowed to put forth his submissions and the same have
been dealt with. [Paras 23, 36] [175-G; 182-B-C, 0-E]
Bani Singh and Others v. State of U.P. AIR 1996 SC
2439: 1996 (3) Suppl. SCR 247 and Government of A.P. and
Another v. B. Satyanarayana Rao (dead) by LRs and Ohers
(2000) 4 SCC 262: 2000 (2) SCR 1009 - relied on.
Mohd. Sukur Ali v. State of Assam (2011) 4 SCC 729:
2011 (3) SCR 209 - held, per incuriam.
A. S. Mohammed Rafi v. State of Tamil Nadu (2011) 1
SCC 688: 2010 (14) SCR 792; Man Singh and Another v.
State of Madhya Pradesh (2008) 9 SCC 542: 2008 (13) SCR
F 966; Bapu Limbaji Kamble v. State of Maharashtra (2005) 11
SCC 413; Shyam Dea Pandey and Others v. The State of
Bihar AIR 1971 SC 1606: 1971 (0) Suppl. SCR 133;
Cha/Jappa Ramaswami v. State of Maharashtra AIR 1971 SC
64: 1970 (2) SCC 426; Siddanna Apparao Patil v. State of
G Maharashtra AIR 1970 SC 977: 1970 (3) SCR 909; Govinda
Kadtuji Kadam v. The State of Maharashtra AIR 1970 SC
1033: 1970 (3) SCR 525; Ram Naresh Yadav and Others v.
State of Bihar AIR 1987 SC 1500; Union of India and Another
v. Raghubir Singh (Dead) by LRs etc. (1989) 2 SCC 754:
H 1989 (3) SCR 316; N. S. Giri v. Corporation of City of
K.S. PANDURANGA v. STATE OF KARNATAKA
159
Mangalore and Others (1999) 4 SCC 697: 1999 (3) SCR 771;
A
LIC of India v. D.J. Bahadur (1981) 1 SCC 315: 1981 (1) SCR
1083; New Maneck Chowk Spg. And Wvg Co. Ltd. v. Textile
Labour Assn. AIR 1961 SC 867; Hindustan Times Ltd. v.
Workmen AIR 1963 SC 1332; Pradip Chandra Parija and
others v. Pramod Chandra Patnaik and Others (2002) 1 SCC
B
1: 2001 (5) Suppl. SCR 460; Chandra Prakash and Others
v. State of U.P. and Another (2002) 4 SCC 234: 2002 (2) SCR
913; Rattiram and Others v. State of Madhya Pradesh (2012)
4 SCC 516: 2012 (3) sqR 496; Indian Oil Corporation Ltd.
v. Municipal Corporation and Another AIR 1995 SC 1480:
C
1995 (3) SCR 246; AR. Antulay v. R.S. Nayak (1988) 2 SCC
602: 1988 (1) Suppl. SCR 1; Punjab Land Development &
Reclamation Corpn. Ltd. v. Labour Court (1990) 3 SCC 682:
1990 (3) SCR 111; State of U.P. v. Synthetics and Chemicals
Ltd. (1991) 4 SCC 139 and Siddharam Satlingappa Mhetre
D
v. State of Maharashtra (2011) 1 SCC 694: 2010 (15) SCR
201 - referred to.
Powell v. Alabama 77 L Ed 158: 287 US 45 (1932);
Anastaplo, in re: 366 US 82 (1961) - referred to.
2.1. On merits, on a perusal of the Mahazar (Exht.-4),
it is evident that a sum of Rs.5,000/- was recovered from
the accused-appellant. The plea put forth by the defence
E
is that the accused had borrowed Rs.20,000/- from the
complainant and to pay it back he had availed a loan from
F
DW-1, an auto driver. DW-1 has deposed that the accused
needed Rs.20,000/- to pay back a loan to PW-1 and he
had given the said sum to him in his house and,
thereafter, had accompanied the accused to his office
and PW-1 was taken to a side by the accused where he
gave the money to him. The said witness has stated that G
he had not known for what purpose the accused had
given the money to PW-1. He had not even produced any
document in support of his deposition that he had given
Rs.20,000/- to the accused as a loan. The said witness,
H
160
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A to make his story credible, has also gone to the extent
of stating that he had accompanied the .accused to his
office where the accused took PW-1 to one side of the
room and paid the money. The testimony of this witness
has to be discarded as it is obvious that he has put forth
8 a concocted and totally improbable version. [Para 39]
[183-C-G]
2.2. On a scrutiny of the testimony of PW-2, it is
demonstrable that there had been demand of money
from PW-2 and acceptance of the same. As far as the
C official favour is concerned, though the allotment of work
was done by the Manager, it has come out in the evidence
of PW-4 that the immediate assignment of the loads of
contractors was the responsibility of the accused. He had
the responsibility for assignment of loads and in that
D connection, he had demanded the bribe. It has also come
out from Exht. P-11 that the responsibility of the accused
was assignment or identification of lorries. In view of the
said evidence, it is difficult to accept the plea that he had
no responsibility and, hence, he could not have granted
E any favour. [Para 40] [184-8-D]
2.3. Keeping in view that the demand and acceptance
of the amount as illegal gratification is a condition
precedent for constituting an offence under the Act, it is
to be noted that there is a statutory presumption under
F Section 20 of the Act which can be dislodged by the
accused by bringing on record some evidence, either
direct or circumstantial, that money was accepted other
than for the motive or the reward as stipulated under
Section 7 of the Act. When some explanation is offered,
G the court is obliged to consider the explanation under
Section 20 of the Act and the consideration of the
explanation has to be on the touchstone of
preponderance of probability. It is not to be proven
beyond all reasonable doubt. In the case at hand, the
H explanation offered by the accused does not deserve any
K.S. PANDURANGA v. STATE OF KARNATAKA
161
acceptance and, accordingly, the finding recorded on
A
that score by the trial Judge and the stamp of approval
given to the same by the High Court cannot be faulted.
The prosecution has established the factum of recovery
and has also proven the demand and acceptance of the
amount as illegal gratification. Therefore, the conviction
B
recorded against the accused is unimpeachable. [Paras
41, 42] [184-E-H; 185-A-B]
State of Maharahstra v. Dnyaneshwar Laxaman Rao
Wankhede (2009) 15 SCC 200: 2009 (11) SCR 513 - relied
C
on.
3. The submission of the appellant for reduction of
the period of sentence to the period already undergone
in custody cannot be accepted. The appellant has been
convicted under Section 7 of the Act and sentenced to
D
undergo rigorous imprisonment for a period of four years
and to pay a fine of Rs.15,000/- and on failure to pay fine,
to suffer further rigorous imprisonment for three months.
Section 7 of the Act provides a punishment with
imprisonment which shall not be less than six months
E
which may extend to five years and liability to pay fine.
Section 13(2) stipulates that a public servant who
commits criminal misconduct shall be punishable with
imprisonment for a term which shall not be less than one
year but which may extend to seven years and shall also
F
be liable to pay fine. On reading of both the provisions, it
is clear that minimum sentence is provided for the
aforesaid offence. There is a purpose behind providing
the minimum sentence. Where the minimum sentence is
provided, it is not appropriate to exercise jurisdiction G
under Article 142 of the Constitution of India to reduce
the sentence on the ground of any mitigating factor as
that would tantamount to supplanting the statutory
mandate and further it would amount to ignoring the
substantive statutory provision that prescribes minimum
H
162
SUPREME COURT REPORTS
[2013] 4 S.CcR.
A sentence for a criminal act relating to demand and
acceptance of bribe. However, regard being had to the
facts and circumstances of the case, the age of the
accused and the ailments he has been suffering, as
highlighted before this Court, the sentence of
B imprisonment imposed under Section 13(1)(d) read with
Section 13(2) of the Act is reduced to one year and the
sentence under Section 7 of the Act is maintained. [Paras
43, 44] [185-D-H; 186;.A-C]
C
Narendra Champaklal Trivedi v. State of Gujarat (2012)
7 sec 80: 2012 (6) SCR 165 - relied on.
Case Law Reference:
2011 (3) SCR 209
D
held per incuriam
Para 10,17,
18
287 us 45 (1932
2010 (14) SCR 792
E
2008 (13) SCR 966
(2005) 11 sec 413
366 us 82 (1961)
referred to
referred to
referred to
referred to
referred to
F
. 1971 (0) Suppl. SCR 133 referred to
G
H
1970 (2) sec 426
referred to
1970 (3) SCR 909
1970 (3) SCR 525
AIR 1987 SC 1500
referred to
referred to
referred to
1996 (3) Suppl. SCR 247 relied on
1989 (3) SCR 316
referred to
Para 10, 15,
16
Para 10, 17
Para 10, 13
Para 10, 11,
23
Para 15
Para 19, 21
Para 19
Para 19
Para 10
Para 20
Para 21
Para 24
K.S. PANDURANGA v. STATE OF KARNATAKA
163
1999 (3) SCR 771
referred to
Para 25
A
1981 (1) SCR 1083
referred to
Para 25
AIR 1961 SC 867
referred to
Para 25
AIR 1963 SC 1332
referred to
Para 25
B
2001 (5) Suppl. SCR 460 referred to
Para 26
2002 (2) SCR 913
referred to
Para 27
2012 (3) SCR 496
referred to
Para 28
1995 (3) SCR 246
referred to
Para 28
c
1988 (1) Suppl. SCR 1
referred to
Para 30
1990 (3) SCR 111
referred to
Para 32
(1991) 4 sec 139
referred to
Para 33
0
2010 (15) SCR 201
referred to
Para 34
2000 (2) SCR 1009
relied on
Para 35
2009 (11) SCR 513
relied on
Para 42
E
2012 (6) SCR 165
relied on
Para 43
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 373 of 2013.
From the Judgment & Order dated 03.06.2011 of the High
F
Court of Karnataka at Bangalore in Criminal Appeal No. 353
of 2004.
S.N. Bhat for the Apellant.
V.N. Raghupathy for the Respondent.
G
Ths Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The appellant was convicted for the offences punishable
H
164
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
under Sections 7, 13(1 )(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (for short "the Act") by the
learned Special Judge, Bangalore, and sentenced to undergo
one year rigorous imprisonment and to pay a fine of Rs.
10,000/-, in default, to suffer a further rigorous imprisonment for
B two months on the first score and four years rigorous
imprisonment and to pay a fine of Rs.15,000/- and on failure
to pay fine to suffer further rigorous imprisonment for three
months on the second count, with the stipulation that both the
sentences shall be concurrent.
c
3. In appeal, the High Court of Karnataka by the impugned
judgment, confirmed the conviction, but reduced the sentence
to two years' rigorous imprisonment from four years as far as
the imposition of sentence for the offence under Section
13(1 )(d) read with Section 13(2) of the Act is concerned and
D maintained the sentence in respect of the offence under Section
7 of the Act.
4. The accusations which led to the trial of the accusedappellant are that H.R. Prakash, PW-1, the owner of Prakash
E Transport, was having a contract for the transport of
transformers belonging to Karnataka Vidyuth Karkhane
(KAVIKA), Bangalore, and the said agreement was for the
period 15.9.2000 to 14.9.2001. Under the said agreement, the
transporter was required to transport transformers from
F
Bangalore to various places all over Karnataka. Despite the
agreement for transportation, three months prior to the lodgment
of the complaint, the transport operator did not get adequate
transport work. The appellant, who was working as
Superintendent of KAVIKA, Bangalore, was incharge of the
G dispatch department and, therefor~. PW-1 approached him. At
that juncture, a demand of Rs.10,000/- was made as illegal
gratification to give him more transport loads. The accusedappellant categorically told PW-1 that unless the amount was
paid, no load could be allotted to his company. Eventually, a
H bargain was struck .for payment of Rs.5,000/- to get the load.
K.S. PANDURANGA v. STATE OF KARNATAKA
165
[DIPAK MISRA, J.]
As PW-1 was not interested in giving the. bribe amount to the
A
accused, he approached the Lokayukta and lodged a
complaint as per Exht. P-1 which was registered as Criminal
Case No. 9 of 2001. The investigating agency of Lokayukta,
after completing the formalities, got a trap conducted. During
the trap, a sum of Rs.5,000/- was recovered from the custody
B
of the accused. After completion of all the formalities, sanction
order was obtained from the competent authority and charge
sheet wa~ placed before the competent court for the offences
punishable under Sections 7 and 13(1 )(d) read with Section
13(2) of the Act.
c
5. The accused persons pleaded innocence and took the
plea of false implication.
6. The prosecution, in order to substantiate the allegations
against the accused, examined PWs 1 to 6 and marked the
D
documents, Exhts. P-1 to P-12, and brought on record MOs-1
to 12. The defence, in order to establish its stand, examined a
singular witness, DW-1.
7. The learned trial Judge posed three questions, namely,
E
(i) whether the sanction order obtained to prosecute the
accused was valid and proper; (ii) whether the prosecution had
been able to prove that the accused had demanded and
accepted the illegal gratification of Rs.5,000/- as a motive or
reward for the purpose of showing an official favour to the
complainant, i.e., allotting transport loads and thereby
F
committed the offence under Section 7 of the Act; and (iii)
whether the prosecution had proven that the accused, by means
of corrupt and illegal means, abused his position and obtained
a pecuniary advantage in the sum of Rs.5,000/-, as a result of
which he committed an offence punishable under Section
G
13(1)(d) read with Section 13(2) of the Act. The learned Special
Judge, analyzing the evidence on record, answered all the
questions in the affirmative and came to hold that the
prosecution had been able to bring home the charge and,
H
166
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A accordingly, recorded the conviction and imposed the sentence
as mentioned earlier.
8. On appeal being preferred, the High Court confirmed
the conviction and the sentence on the foundation that the
B recovery, demand and acceptance of illegal gratification had
been established to the hilt.
9. We have heard Mr. S.N. Bhat, learned counsel for the
appellant. None has represented the State.
·
c
10. The first plank of submission of the learned counsel
for the appellant is that the High Court could not have heard
the appeal in the absence of the counsel for the accused and
proceeded to deliver the judgment. It is urged by him that though
at a later stage, the counsel appeared and put forth his
0 contention, yet the fundamental defect in proceeding to deal
with the appeal vitiates the verdict. To bolster the said
submission, he has commended us to the decision in Mohd.
Sukur Ali v. State of Assam1• In the said case, the Division
Bench held as follows: -
E
"5. We· are of the opinion that even assuming that the
counsel for the accused does not appear because of the
counsel's negligence or deliberately, even then the court
should not decide a criminal case against the accused in
the absence of his counsel since an accused in a criminal
F
case should not suffer for the fault of his counsel and in
such a situation the court should appoint another counsel
as amicus curiae to defend the accused. This is because
liberty of a person is the most important feature of our
Constitution. Article 21 which guarantees protection of life
G
and personal liberty is the most important fundamental
right of the fundamental rights guaranteed by the
Constitution. Article 21 can be said to be the "heart and
soul" of the fundamental rights."
H 1.
(2011) 4 sec 12e.
K.S. PANDURANGA v. STATE OF KARNATAKA
167
[DIPAK MISRA, J.]
After so stating, the Bench relied upon the decision of the
A
US Supreme Court in Powell v. Alabama2 which was cited with
approval by this Court in AS. Mohammed Rafi v. State of
Tamil Nadu3. Reference was also made to Man Singh and
Another v. State of Madhya Pradesh4 and Bapu Limbaji
. Kamble v. State of Maharashtra5• Eventually, the Bench held
B
as follows: -
"The Founding Fathers of our Constitution were themselves
freedom fighters who had seen civil liberties of our people
trampled under foreign rule, and who had themselves been
incarcerated for long period under the formula "Na vakeel,
C
na daleel, na appeal" (No lawyer, no hearing, no appeal).
Many of them were lawyers by profession, and knew the
importance of counsel, particularly in criminal cases. It was
for this reason that they provided for assistance by counsel
under Article 22(1 ), and that provision must be given the
D
widest construction to effectuate the intention of the
Founding Fathers."
After so holding, the learned Judges set aside the
impugned judgment of the High Court and remitted the matter
E
to take a fresh decision after hearing the learned counsel for
the appellant in the High Court whose name was not shown in
the cause list and the name of the former counsel was shown.
We may hasten to clarify whether in the said case the matter
should have been remitted or not is presently not the concern.
The question is whether the ratio laid down by the Division
Bench that even if the counsel for the accused does not appear
because of his negligence or deliberately, then the court should
not decide the case against the accused in the absence of his
counsel as he should not suffer for the fault of the counsel.
2.
77 L Ed 158 : 287 US 45 (1932).
3.
c2011) 1 sec 688.
4.
(2008) s sec 542.
5.
(2005). 11 sec 413.
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11. At this stage, we think it appropriate to refer to the
decisions which have been relied on by the Division Bench. In
Bapu Limbaji Kamble (supra), the High Court had convicted
the appellant under Section 302 of the IPC on the charge of
murdering his wife by strangulating her to death. At the time of
B hearing of the appeal, the counsel for the accused did not
appear. The High Court perused the evidence and decided the
matter. In that context, this Court stated thus:-
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"We are of the view that the High Court should have
appointed another advocate as amicus curiae before
proceeding to dispose of the appeal. We say so especially
for the reason that there are arguable points in the appeal
such as the delay in· giving the report to the police, the
material discrepancy between the version in the FIR and
the deposition of PW 4 and the non-disclosure by PW 3
of the alleged confession made by the accused after PW
4 came to the house. The question whether there is
clinching circumstantial evidence to convict the appellant
also deserves fuller consideration: Without expressing any
view on the merits of the case, we set aside the impugned
order of the High Court and remand the matter for fresh
disposal by the High Court expeditiously, after nominating
an amicus to assist the Court."
12. From the aforesaid passage, it is demonstrable that
F this Court has not stated as a principle that whenever the
counsel does not appear, the court has no other option but to
appoint an amicus curiae and, thereafter, proceed with the
case. What has been stated above is that as there were
arguable points in appeal and further whether there was
G clinching circumstantial evidence to convict the appellant or not,
deserved a fuller consideration and in that backdrop, the Court
directed for nominating an amicus to assist the Court. On a fair
reading of the aforesaid passage, it is quite clear that the
direction was issued in the special circumstances of the case.
H
13. In Man Singh and Another (supra), the learned single
K.S. PANDURANGA v. STATE OF KARNATAKA
169
[DIPAK MISRA, J.]
Judge of the High Court had dismissed the appeal preferred
A
by the appellant who had called in question the legal propriety
of his conviction for the offence punishable under Section 8/
18(b) of the Narcotic Drugs and Psychotropic Substances Act,
1985 and such other offences. This Court observed that when
the appeal was called, the counsel who was appointed through
B
the Legal Aid Committee did not appear and the learned single
Judge heard the matter with the assistance of the learned panel
lawyer for the respondent State. It was contended before this
Court that the High Court should not have dismissed the appeal
without engaging another counsel or at least without appointing c
an amicus curiae. Resisting the said contention, it was
contended by the State that the High Court analysed the
relevant evidence including the evidence of the two relevant
witnesses and, hence, no fault could be found with the judgment.
The two-Judge Bench, after recording the said stand and
0
stance, opined thus:-
"5: We need not deal with the merits of the case as we
find that the learned counsel appointed by the Legal Aid
Committee did not appear on the date fixed before the
High Court. The High Court could have in such
E
circumstances required the Legal Aid Committee to
appoint another counsel. Considering the seriousness of
the offence, it would have been appropriate for the High
Court to do so."
14. On a careful reading of the decision in its entirety and
what has been aforestated, it is vivid that it has not been laid
down as a ratio that in each circumstance, the High Court
should appoint a counsel failing which the judgment rendered
F
by it would be liable to be set aside.
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15. In A.S. Mohammed Rafi v. State of Tamil Nadu
(supra), the Division Bench, after referring to Article 22(1 ), the
dictum in Powell (supra) and Anastaplo, In re6, the immortal
6.
6 L Ed 2d 135 : 366 US 82 (1961).
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[2013] 4 S.C.R.
A words authored by Thomas Erskine (1750-1823) "The Rights
of Man", the Sixth Amendment of the US Constitution, the
Biography of Clarence Darrow, i.e, Attorney for the Damned,
Harper Lee's famous novel To Kill a Mocking Bird and
Chapter II of the Rules framed by the Bar Council of India,
B opined thus: -
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"24. Professional ethics require that a lawyer cannot refuse
a brief, provided a client is willing to pay his fee, and the
lawyer is not otherwise engaged. Hence, the action of any
Bar Association in passing such a resolution that none of
its members will appear for a particular accused, whether
on the ground that he is a policeman or on the ground that
he is a suspected terrorist, rapist, mass murderer, etc. is
against all norms of the Constitution, the statute and
professional ethics. It is against the great traditions of the
Bar which has always stood up for defending persons
accused for a crime. Such a resolution is,· in fact, a
disgrace to the legal community. We declare that all such
resolutions of Bar Associations in India are null and void
and the right-minded lawyers should ignore and defy such
resolutions if they want democracy and rule of"law to be
upheld in this country. It is the duty of a lawyer to defend
no matter what the consequences, and a lawyer who
refuses to do so is not following the message of The Gita."
Be it noted, in the said case, the Bar Association of
Coimbatore had passed a resolution that no member of the
Coimbatore Bar Association would defend the accused
policemen in criminal case against them in the said case.
16. Prior to that, the Division Bench has quoted the
G obser\tations of Sutherland, J. (pp. 170-171) from Powell case
(supra) that deals with the fate of an accused who is not given
the assistance of a counsel. The relevant part is reproduced
below: -
H
"The right to be heard would be, in many cases, of little
K.S. PANDURANGA v. STATE OF KARNATAKA
171
[DIPAK MISRA, J.]
avail if it did not comprehend the right to be heard by A
counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence. Left without
B
the aid of counsel he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or
evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to
prepare his defense, even though he have a perfect one. c
He requires the guiding hand of counsel at every step in
the proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does
not know how to establish his innocence."
17. We have referred to the said judgment in extenso as D
it has been stated in Mohd. Sukur Ali (supra) that the said
passage has been quoted with approval in A. S. Mohammed
Rafi (supra).
18. On a studied perusal of the said decision, it is
E
noticeable that the Court has stated about the role of the lawyer
and the role of the Bar Association in the backdrop of
professional ethics and norms of the Constitution. It has been
categorically held therein that the professional ethics require that
a lawyer cannot refuse a brief, provided a client is willing to pay
F
his fee and the lawyer is not otherwise engaged and, therefore,
no Bar Association can pass a resolution to the effect that none
of its members will appear for a particular accused whether on
the ground that he is a policeman or on the ground that he is a
suspected terrorist. We are disposed to think that in Mohd.
G
Sukur Ali (supra), the aforesaid case was cited only to highlight
the role of the Bar and the ethicality of the lawyers. It does not
flow from the said pronouncement that it is obligatory on the
part of the Appellate Court in all circumstances to engage
amicus curiae in a criminal appeal to argue on behalf of the
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[2013) 4 S.C.R.
A accused failing which the judgment rendered by the High Court
would be absolutely unsustainable.
19. At this juncture, it is apt to survey the earlier decisions
of this Court in the field. In Shyam Deo Pandey and Others v.
8 The State of Bihar, a two-Judge Bench of this Court was
dealing with a criminal appeal which had arisen from the order
of the High Court whereby the High Court, on perusal of the
judgment under appeal, had dismissed the criminal appeal
challenging the conviction. The Court referred to Section 423
of the Old Code and came to hold that the criminal appeal
C could not be dismissed for default of appearance of the
appellants or their counsel. The Court has either to adjourn the
hearing of the appeal or it should consider the appeal on merits
and pass final orders. It is further observed that the
consideration of the appeal on merits at the stage of final
D hearing and to arrive at a decision on merits and pass final
orders will not be possible unless the reasoning and findings
recorded in the judgment under appeal ·is tested in the light of
the record of the case. The Court referred to the earlier Section
421 of the Code which dealt with dismissal of an appeal
E summarily and was different from an appeal that had been
admitted and required to be dealt with under Section 423 of
the Code. It is worth noting that reliance was placed on
Challappa Ramaswami v. State of Maharashtra6 wherein
reliance was placed on Siddanna Apparao Patil v. State of
F Maharashtra9 and Govinda Kadtuji Kadam v. Th~ State of
Maharashtra10•
20. In Ram Naresh Yadav and Others v. State of Bihar, 11
a different note was struck by expressing the view in the
G following terms: -
7.
AIR 1971 SC 1606.
8.
AIR 1971 SC 64.
9.
AIR 1970 SC 977.
10. AIR 1970 SC 1033
H 11. AIR 1987 SC 1500.
K.S. PANDURANGA v. STATE OF KARNATAKA
173
[DIPAK MISRA, J.]
"It is no doubt true that if counsel do not appear when
A
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
B
matters the convicts must be heard before their mattes 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 in view. But the matter can
be disposed of on merits only after hearing the appellant c
or his counsel. The court might as well appoint a counsel
at State cost to argue on behalf of the appellants."
21. In Bani Singh and Others v. State of U.P., 12 a threeJudge Bench was called upon to decide whether the High
Court was justified in dismissing the appeal filed by the
D
accused-appellants therein against the order of conviction and
sentence issued by the trial court for non-prosecution. The High
Court had referred to the pronouncement in Ram Naresh
Yadav (supra) and passed the order. The three-Judge Bench
referred to the scheme of the Code, especially, the relevant
E
provisions, namely, Section 384 and opined that since the High
Court had already admitted the appeal following the procedure
laid down in Section 385 of the Code, Section 384 which
enables the High Court to summarily dismiss the appeal was
not applicable. The view expressed in Sham Deo's case
F
(supra) was approved with slight clarification but the judgment
in Ram Naresh Yadav's case (supra) was over-ruled. The
three-Judge Bench proceeded to lay down as follows: -
" ..... It is the duty of the appellant and his lawyer to remain
present on the appointed day, time and place when the
G
appeal is posted for hearing. This is the requirement of the
Code on a plain reading of Ss. 385-386 of the Code. The
law does not enjoin that the Court shall adjourn the case if
both the appellant and his lawyer are absent. If the Court
12. AIR 1996 SC 2439.
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[2013] 4 S.C.R.
does so as a matter of prudence or indulgence. it is a
different matter. but it is not bound to adjourn the matter. It
can dispose of the appeal after perusing the record and
the judgment of the trial' Court. We would. however. hasten
to add 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
accused-appellant if his lawyer is not present. If the lawver
is absent. and the Court deems it appropriate to appoint
a lawyer at State expense to assist it. there is nothing in
the law to preclude it from doing so. We are, therefore, of
the opinion and we say so with respect, that the Division
Bench which decided Ram. Naresh Yadav's case (AIR
1987 SC 1500) did not apply the provisions of Ss. 385386 of the Code correctly when it indicated that the
Appellate Court was under an obligation to adjourn the
case to another date if the appellant or his lawyer
remained absent.
16. Such a view can bring about a stalemate situation. The
appellant and his lawyer can remain absent with impunity,
not once but again and again till the Court issues a warrant
for the appellant's presence. A complaint to the Bar
Council against the lawyer for non-appearance cannot
result in the progress of the appeal. If another lawyer is
appointed at State cost, he too would need the presence
of the appellant for instructions and that would place the
court in the same situation. Such a procedure can.
therefore. prove cumbersome and can promote
indiscipline. Even if a case is decided on merits in the
absence of the appellant. the higher Court can remedy the
situation if there has been a failure of justice. This would
apply equally if the accused is the respondent for the
obvious reason that if the appeal cannot be disposed of
without hearing the respondent or his lawyer, the progress
of the appeal would be halted."
(Emphasis supplied)
K.S. PANDURANGA v. STATE OF KARNATAKA
175
[DIPAK MISRA, J.]
22. From the aforesaid decision, the principles that can
A
be culled out are (i) that the High Court cannot dismiss an
appeal for non-prosecution simpliciter without examining the
·merits; (ii) that the court is not bound to adjourn the matter if
both the appellant or his counsel/lawyer are absent; (iii) that the
court may, as a matter of prudence or indulgence, adjourn the
B
matter but it is not bound to do so; (iv) t~at it can dispose of
the appeal after perusing the record and judgment of the trial
court; (v) 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 accuseO- c
appellant 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 (vi) that if the case is decided on
merits in the absence of the appellant, the higher court can
0
remedy the situation.
23. In Bapu Limbaju Kamble (supra), and Man Singh
(supra), this Court has not laid down as a principle that it is
absolutely impermissible on the part of the High Court to advert
to merits in a criminal appeal in the absence of the counsel for
E
the:: appellant. We have already stated that the pronouncement
in AS. Mohammed Rafi (supra), dealt with a different situation
altogether and, in fact, emphasis was on the professional
ethics, counsel's duty, a lawyer's obligation to accept the brief
an.cf the role of the Bar Associations. The principle laid down
F
in _Sham Deo Pandey (supra), relying on Siddanna Apparao
Patil (supra), was slightly modified in Bani Singh (supra). The
two-Judge Bench in Mohd. Sukur Ali (supra), had not noticed
the binding precedent in Bani Singh (supra).
24. In Union of India and Another v. Raghubir Singh
(Dead) by LRs etc., 13 the question arose with regard to the
13. (1989) 2 sec 754.
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A effect of the law pronounced by the Division Bench in relation
to a case relating to the same point subsequently before a
Division Bench or a smaller number of Judges.