Can a Criminal Appeal be dismissed on the Ground that the Accused is Absconding?

 

INTRODUCTION

 

Today, we will discuss a very interesting question that was answered by the Supreme Court in the case of Dhananjay Rai alias Guddu Rai v. State of Bihar, 2022 SCC OnLine SC 880. The Court discussed whether a Criminal Appeal against Conviction under S. 374 (2) of the Code of Criminal Procedure, 1973 (CrPC) can be dismissed on the ground that the accused is absconding? Generally speaking, absconding means failure of a person to surrender before the court or intentionally escaping the law enforcement authorities.

 

It is important to understand that a Criminal Appeal could be filed either against conviction or acquittal. Whenever an accused is absconding at the stage of Criminal Appeal that has been filed by him, it means that he is not available before the Court for hearing, and it could be said that he is not interested in prosecuting his Criminal Appeal before the Appellate Court. In such a situation, a question arises as to whether any Criminal Appeal that has been preferred by the accused against the conviction should be dismissed on the ground that the accused is absconding?

 

VIEW OF THE SUPREME COURT

 

According to the Supreme Court, such a situation cannot be countenanced as it is against the spirit of Section 385 and 386 of CrPC. Basically, Section 385 of CrPC provides for the procedure for hearing Criminal Appeal that are not dismissed summarily. The Court opined 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, neither Section 385 nor Section 386 contemplate for dismissal of a Criminal Appeal for non-prosecution. Further, a bare perusal of Section 384 of CrPC would also be apposite at this juncture. Section 384 provides for the procedure to be followed for summary dismissal of appeals and even for summary dismissal of an appeal, it is imperative that a reasonable opportunity of being heard is provided and reasons are recorded by the court for summary dismissal. The Appellate Court is also required to call for records wherever required.

 

Thus, whether an appeal is dismissed summarily or not, it is imperative to dismiss the same on merits and nowhere these provisions in CrPC contemplate dismissal of a Criminal Appeal on the grounds such as want of prosecution or absconding of the accused.

  

CONCLUSION

 

Further, Section 385 and Section 386 also posit that either the accused himself or his pleader/advocate may represent the accused in the Criminal Appeal Proceedings. Basically, even if the accused is not present, then also his case could be effectively heard through his pleader/advocate. And even if the accused as well his or her advocate/pleader is not present case, then also the Court may appoint any other advocate at state expenses for representing the accused in the Appellate Proceedings.

 

Hence, the Supreme Court was of the view that though the brazen action of an appellant accused of absconding could be well-understood as defeating the administration of justice, yet it is by itself no ground to dismiss an appeal against conviction on the ground of non-prosecution without adverting to merits.