Criminal appeal against conviction cannot be dismissed for default owing to the absence of the appellant or his counsel

This is the oldest Single Judge Bench criminal appeal of this Court. It was presented on 22.04.1988, admitted on 27.04.1988 and the appellant was directed to be released on bail and realization of fine amount was stayed. After its admission, the case was listed before different Benches on different occasions for hearing but it was adjourned either on the prayer of the learned counsel for the appellant or learned counsel for the Vigilance Department. The matter was listed before me for hearing on 06.08.2020 and I took up the matter through Video Conferencing. The report of the Superintendent of Police, Vigilance Cell, Cuttack revealed that it was intimated to the appellant that the matter would be taken up on 06.08.2020. In spite of that, none appeared on behalf of the appellant. Since the appeal was pending before this Court for more than thirty years, in presence of the learned Senior Standing Counsel for the Vigilance Department, Mr. Deba Prasad Das, Advocate who is having extensive practice on criminal law for more than thirty five years, both in the trial Court as well as before this Court was appointed as Amicus Curiae to conduct the case for the appellant and the Registry was directed to supply the paper book to Mr. Das by 07.08.2020 and to intimate him that the matter would be taken up for hearing in the week commencing from 10.08.2020. Accordingly, Registry supplied the paper book to Mr. Das. On 13.08.2020 when the matter was again listed for hearing and it was taken up through video conferencing, Mr. Das, learned Amicus Curiae was ready for hearing but the learned counsel for the appellant who had filed the criminal appeal in the year 1988 appeared and sought for two weeks adjournment which was refused and accordingly, the hearing was taken up and concluded on that date itself and the judgment was reserved. Mr. Das, learned Amicus Curiae took time till 17.08.2020 to file his written note of submission and accordingly he also filed the same.

    In the case of Bani Singh and others -Vrs.- State of Uttar Pradesh reported in 1996 (II) Orissa Law Reviews (SC) 216, a three Judge Bench of the Hon'ble Supreme Court was called upto to decide the question as to whether the High Court can dismiss an appeal filed by the accused-appellant against the order of conviction and sentence issued by the trial Court, for non-prosecution. Considering the provisions under sections 385 and 386 of Cr.P.C., it was held that the law does not envisage the dismissal of appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. It was further held that the law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court 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. 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 lawyer 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. The ratio laid down in the case of Bani Singh (supra) was followed in the case of K.S. Panduranga -Vrs.- State of Karnataka reported in (2013)3 Supreme Court Cases 721 wherein it was held that the High Court cannot dismiss an appeal for non-prosecution simplicitor without examining the merits and the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent. The Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so. It can dispose of the appeal after perusing the record and judgment of the trial Court. 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 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.

    In the case of Shridhar Namdeo Lawand-Vrs.-State of Maharastra reported in 2013 (10) SCALE 52, a three Judge Bench of the Hon'ble Supreme Court held that it is the settled law that Court should not decide criminal case in the absence of the counsel for the accused, as an accused in a criminal case should not suffer for the fault of his counsel and the Court should, in such a situation must appoint another counsel as an amicus curiae to defend the accused.

    In the case of Christopher Raj -Vrs.- K.Vijayakumar reported in (2019)7 Supreme Court Cases 398, it was held that when the accused did not enter appearance in the High Court, the High Court should have issued second notice to the appellant-accused or the High Court Legal Services Committee to appoint an Advocate or the High Court could have taken the assistance of Amicus Curiae. When the accused was not represented, without appointing any counsel as Amicus Curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits.

If a litigant does not come to the Court with clean hands, he is neither entitled to be heard nor entitled to any relief from any judicial forum

The Supreme Court in the case of 'Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others', reported as (2013) 11 Supreme Court Cases 531 held that it is the duty of the litigant to disclose all material facts and a litigant cannot decide which facts are material and which are not. He must come to court with clean hands and disclose all material facts relating to his case. The Supreme court further held as under:-

"Suppression of fact
42. While dealing with the conduct of the parties, we may also notice the submission of the learned counsel for Respondent 1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2-5-2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners. 

43. Learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2-5-2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree. 

44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the court. True, there is a mention of the order dated 2-5-2003 in the order dated 24-7-2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2-5-2003 was passed or that it has attained finality. 

45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p.1560, para 9) "9. .......It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent." 

46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p.51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."

Civil suit for declaration of nullity of Revenue Officers' order is maintainable

The land was recorded in the name of Government - Plaintiff is in possession and paying taxes - Defendant obtained order from revenue officer to the effect that defendant is the owner of that land - order is passed without issuing notice to plaintiff and without following due procedure and without following principals of natural justice - Defendant is taking advantage of the said order and trying to remove the plaintiff from the land - suit for declaration - bar to jurisdiction - Sec. 36, 36(A) and 36(B) of The Maharashtra Land Revenue Code.

   If the order is ultra virus the parties entitled to ignore it and to go to the Civil Court for declaration that the order is a nullity and no action should be taken against under that order, which would prejudice his right.[Para No.22]

  In view of the specific allegation that without following due procedure and without following principals of natural justice, the revenue authorities have passed the orders in favour of the defendant No.6/petitioner and further in view of the other reliefs prayed in the plaint, other than declaring the orders of the Revenue Officers as ultra virus, which are very well permissible in a civil suit, I do not find any merit in the present petition. Further I have no hesitation to hold that no infirmity of law or error has been committed by the learned trial Court while holding that the suit is maintainable. [Para No.23]

Rule of natural justice need not be observed where fraud or misrepresentation is played

Petitioner was appointed as Distributor of LPG - Submission of "Residence Certificate" was essential eligibility criteria for awarding the distributorship - Distributorship awarded to him -  Unfettered power to the Oil Company were given in the Dealership Agreement for termination, in case, any information found to be untrue or incorrect - Upon a complaint made by one of the unsuccessful complainants it was discovered that the furnished "Residential Certificate" to be false and incorrect - Oil Company, without issuing show cause notice terminated his distributorship. Therefore he claimed that absence of show-cause notice tantamount to absence of the opportunity of being heard and hence termination hits the soul of justice violating Article 14 of the Constitution of India and on this ground alone the said termination letter deserves to be quashed.

Held:

   A Contract is like a written form of the law or like a private legislation that legally binds the parties, hence the aforementioned clause derives utmost sanctity from the agreement. The doctrine of 'Pacta sunt servinda' governs the contractual relationship and the clauses of the contract are the law between the parties. This doctrine presupposes strict compliance of the terms enumerated in the termination clauses of the agreement, otherwise it destroys the sanctity of the contract and eludes the future performance. [Para No.17]

   Fraud and justice cannot go together. It is a settled law that "Fraud" vitiates every solemn act. In Lazarus Estate Ltd. v. Beasley, Lord Denning observed "No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker LJ observed that fraud "vitiates all transactions known to the law of however high a degree of solemnity.