Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Recently, this Court in Dhananjay Rai alias Guddu Rai v. State of Bihar13 (two-Judges) took note of a Judgment rendered in Bani Singh v. State of U.P.14, as under:
“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 [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] 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 simpliciter. 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 cross-checking 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.” {Para 29}
(Emphasis supplied)
Conclusions
37. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that non-compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.
38. The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided.
Ratio:
Right to appeal includes an opportunity for the person filing an appeal to question the conclusions drawn by the trial court. Thus, the mandates of Section 385 of the CrPC can only be followed when the record lower court is available with the Court of Appeal.
In the Supreme Court of India
(Before Krishna Murari and Sanjay Karol, JJ.)
Criminal Appeal No……………of 2023
Arising out of Special Leave Petition (Crl.) No. 2063 of 2023
Jitendra Kumar Rode Vs Union of India
Decided on April 24, 2023
Citation: 2023 SCC ONLINE SC 485,2023 INSC 419
The Judgment of the Court was delivered by
Sanjay Karol, J.:— Leave granted.
