A is charged under Section 302 for the murder of B. He is tried by the Sessions Judge and acquitted. The State prefers an appeal to the High Court against the order of acquittal… Is the order of dismissal of appeal passed by the High Court legal?

Question: A is charged under Section 302 for the murder of B. He is tried by the Sessions Judge and acquitted. The State prefers an appeal to the High Court against the order of acquittal passed by the Sessions Judge. During the hearing of an appeal, the Public Prosecutor did not appear before the High Court. The High Court dismissed the appeal without going into the merit of the case on the ground that the Public Prosecutor was absent on the dates of the hearing. Is the order of dismissal of appeal passed by the High Court legal? Refer to case laws, if any, on the point.

Find the answer only on Legal Bites. [A is charged under Section 302 for the murder of B. He is tried by the Sessions Judge and acquitted. The State prefers an appeal to the High Court against the order of acquittal… Is the order of dismissal of appeal passed by the High Court legal?]

Answer

Appellate courts are positioned above the trial courts to review their work and to correct any errors that may have occurred. The purpose of every appellate court is to discover the truth but it is essential that every court must do it judiciously. No, the order of dismissal of appeal passed by the High Court is not legal.

Section 386 of the Code of Criminal Procedure talks about the powers of the appellate court and clearly mandates that only after perusing such record and hearing the appellant or his pleader if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused if he appears, the Appellate Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may;

• in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.

Before deciding to exercise any of the powers hereinafter mentioned, the court must peruse the record of the case. This requirement is necessary to be complied with to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded.

It has been observed that there must be a clear indication in the judgment or order of the appellate court that it has applied its judicial mind to the particular appeal with which it was dealing. Such an indication will be available when the appellate court has considered the material on record, which means not only the judgment and petition of appeal but also the other relevant materials.

Thus, the appellate court can dismiss the appeal only on the merits and has no power to dismiss it summarily. Even where the appellant and his counsel both absented themselves on the day fixed for the hearing of the appeal, it was held in Bani Singh v. State of UP, AIR 1996 SC 2439 that the Court was not bound to adjourn the hearing and had to dispose of the appeal on merits.

Thus, applying the aforesaid decisions of the courts to the present case in hand where the High Court dismissed the appeal without going into the merit of the case on the ground that the Public Prosecutor was absent on the dates of the hearing. The High Court’s order of dismissal of appeal passed is not legal.

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