Jayant Patel, J.
1. The present appeal arises against the Judgment and the Order passed by the learned Sessions Judge in Sessions Case No. 62/01, whereby, the learned Sessions Judge has convicted the appellant-accused for the offence under Section 302 of the IPC and has imposed sentence for life imprisonment with the fine of Rs. 500/-.
2. When the matter is taken up for final hearing, the learned APP declared before the Court that the accused is absconding since 23.07.2004. He has also placed on record the Jail report received by him. Under these circumstances, the accused-appellant is reported absconding by the learned APP.
3. In normal circumstances, if the appellant-accused is not represented through the lawyer, the Court may proceed to examine the merits of the matter. However, such situation may arise if the presence of the accused is secured, may be by releasing him on bail or he may be in the custody. Neither situation exist in the present case. The learned APP drew the attention of this Court to the decision of the Division Bench of this Court in the case of Mahendra Bhogilal Tadvi v. State of Gujarat reported at : 2009 (1) GLR 91 and he submitted that this Court based on the aforesaid decision may dismiss the matter on the ground that the convict is absconding. It was therefore, submitted that similar order may be passed by this Court as was passed by this Court in the case of Mahendra Bhogilal Tadvi (supra).
4. As such, since the factum of convict being reported absconding is not in dispute, the only aspect which may be required to be considered would be the consequential effect upon the pending appeal before this Court and more particularly when it comes up for final hearing. In the decision of this Court in the case of Mahendra Bhogilal Tadvi (supra), it was inter alia observed at paras 8 & 9 as under:
8. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the present case, it appears that:
(i) the present appeal has been preferred against the judgment and order passed by learned Additional Sessions Judge, Bharuch, mainly for an offence punishable under Section 302 of the Indian Penal Code for committing murder of wife by pouring kerosene and by ablazing her, on the basis of dying declaration, evidence given by the doctor and by Executive Magistrate, who has recorded dying declaration and on the basis of evidence given by the police, who has recorded the FIR and on the basis of the evidence of the other prosecution witnesses.
(ii) The appellant is absconding since 6th December, 2000. Criminal Misc. Application was preferred for suspension of sentence awarded by the Trial Court under Section 389 of the Code of Criminal Procedure, pending Criminal Appeal. The Division Bench of this Court vide order dated 16th October, 2000 suspended the sentence for 45 days running from 22nd October, 2000 on condition of his executing personal bond of Rs. 2,000/- before the jail authority and on further condition that the appellant shall report to Chanod Police Station on every 1st and 15th day of every English calendar month between 11 a.m. to 5 p.m.
(iii) Thus, the appellant had to surrender before the jail authority on 6th December, 2000, but, he has remained absconding till this date and has not surrendered. He had engaged a private lawyer Mr. Kalathil in the present appeal, who has expired. Thereafter, for much longer period, the present appellant has not engaged another lawyer mainly because of the fact that he was enjoying freedom of remaining absconding and was not taking any care of his criminal appeal. His attitude for not engaging lawyer, after death of his private lawyer Mr. Kalathil, shows his negligence to proceed further with this Criminal Appeal. We have, therefore, passed an order on 13th October, 2008 and directed the Registry to supply legal aid and engage another lawyer. Thus, legal aid has been provided to the appellant, in pursuance of the directive principle enshrined in Article 39-A of Part IV of the Constitution of India. Despite this appointment, the appellant has not remained present and he is still absconding. It is fundamental duty vested in the appellant, as per Article 51-A of the Constitution of India to abide by the Constitution of India and to respect to its ideas and Institutions.
(iv) Learned Additional Public Prosecutor submitted that even on previous occasion also, when he was enlarged on furlough leave for 14 days, he has not surrendered within time and he was arrested by the police lately by 38 days.
(v) Looking to the tendency of the present appellant to flee away and that the appellant has no faith injustice delivery system, after filing appeal, deliberately he has ignored the entire system. This appeal deserves to be dismissed only on this ground. The appellant cannot watch the proceedings by remaining underground. Thus, if he is acquitted, it will encourage such absconding accused and if there is conviction, then, he will continue to remain absconding so as to avoid the conviction. In both these situation, the hearing of this Criminal Appeal will encourage those, who are in jail to flee away or jump the bail or furlough leave. We do not want to encourage absconding accused by taking such type of criminal appeal for final hearing on merits and we reiterate that when any accused disrespects the Constitution of India or justice delivery system and also thereby disobeys fundamental duty vested in him, as per Sub-article (a) of Article 51-A of the Constitution of India, his Criminal Appeal deserves to be dismissed only on this ground.
(vi) There two major circumstances, in which appellant - convict is not proceeding with his criminal appeal-
(a) due to the ignorance or sickness of the appellant or his lawyer; or
(b) due to the fact that accused is absconding.
There is a vast difference between these two circumstances. The decisions cited by learned Counsel for the appellant that criminal appeal cannot be dismissed for default are having their genesis in the ignorance, in conducting any criminal appeal either by appellant himself or by his lawyer. Some times, lawyer remains absent as he is busy with other matter or for other work or some times he is not aware of listing of the criminal appeal or some time he is genuinely sick and if no lawyer is engaged, the appellant, who is not absconding is not engaging the lawyer due to poverty or sickness, etc. In all these cases, there is ignorance of the party or a lawyer and in such cases, criminal appeal cannot be dismissed for default and it ought to be heard on its own merits, but, diagonally opposite are the facts of the present case. Accused in the present case is absconding. Deliberately, he has not surrendered after period of 45 days from 22nd October, 2000, i.e. period for which, the sentence was suspended under Section 389 of the Code of Criminal Procedure. Thus, deliberate action or positive action reveals the intention of the appellant which shows that he has no respect to the Constitution of India and he has committed breach of the fundamental duty enshrined under Sub-article (a) of Article 51-A of the Constitution of India or it also reveals intention of the appellant that he has no faith in justice delivery system. On one hand, he remains absconding and on other hand, he expects that his appeal ought to be disposed of on its merits. Those, who are expecting their criminal appeals against conviction, to be heard on merits, cannot remain absconding. Therefore, the judgments cited by learned Counsel for the appellant that criminal appeal cannot be dismissed for default are not helpful, looking to the peculiar facts of the present case.
(vii) It has been rightly pointed out by learned Additional Public Prosecutor that in case decided by Hon'ble Patna High Court reported in 2005 Cri LJ 482, especially in paras 10, 23 and 24, read as under:
10. The rule which is statutory in nature uses negative language that forbids the hearing of an appeal (for admission) in the absence of intimation of surrender except in case where the appellant has been released on bail by the trial Court. It would be futile to argue that the prohibition that applies at the stage of admission would not apply to the hearing of the appeal and once the appeal is admitted, it is open to the appellant to merrily break the jail and escape from custody. This Court does not have the slightest doubt that the intimation of surrender Which is a pre-condition and sine qua non for hearing of the appeal at the stage of admission is equally the pre-condition and sine qua non for hearing of the appeal for its final disposal on merits. The appeal preferred by the appellant Maya Shankar Singh does not comply with the legal requirement and his appeal, therefore, is not fit to be heard, unless the intimation of surrender is filed on his behalf.
23. The Court took the view that unless an intimation of his surrender was filed the appeal on his behalf was not competent to be heard on merits on two grounds; one, that his act in escaping from jail, though his prayers for bail was repeatedly rejected by this Court, was a wilful, deliberate and gross violation of the judicial process and it amounted to a defiance of the system of criminal administration of justice and he was, therefore, not entitled to any indulgence from the Court. The second ground was that the appeal on his behalf was not competent to be heard in terms of Rule 8 under Chapter XII of the Patna High Court Rules, that lays down in mandatory terms that in case the appellant had not been released on bail the appeal could not be heard in the absence of intimation of surrender. Both the aforesaid reasons are discussed in detail in the previous order dated 17-3-2004.
24. On 17-3-2004 the Court allowed Maya Shankar Singh three weeks time to surrender. The case was again called out for hearing on 16-7-2004. From the office note dated 7-4-2004 it appears that no intimation of his surrender was filed within the time allowed by the Court. Today though more than four months has expired both the Counsel appearing for the appellants and the Counsel appearing on behalf of the informant informed the Court that Maya Shankar Singh has not cared to surrender. In these circumstances Criminal Appeal No. 187 of 1998 insofar as it is on behalf of Maya Shankar Singh, appellant No. 2 stands dismissed. It shall now proceed only in respect of appellant No. 1 Daya Shankar Singh who continues to remain in jail.
(Emphasis supplied)
Thus, sine qua non for hearing of the Criminal Appeal or precondition of hearing of the appeal, against order of conviction, on merits, for final disposal, is that the accused is not absconding and the accused must be available, either before Court or before the jail. As per Sub-section (3) of Section 85 of the Code of Criminal Procedure 1973, it is rightly pointed out that even when the property of absconding accused is seized, it can be restored to the accused, upon his appearance and surrender before the jail and there cannot be restoration of property, when the accused is absconding. As and when accused surrenders or is arrested, he can prefer an application for restoration of the present Criminal Appeal. We are of the opinion that this submission made by learned Additional Public Prosecutor is absolutely correct. This appeal is hereby dismissed only on the ground that the appellant-accused is absconding and is not available to the Court, nor is present in the Court. As and when he surrenders or is arrested by the police, he may prefer an application for restoration of the appeal. We do not want to encourage the absconding accused for remaining absconding by hearing his criminal appeal on merits. It also encourages, who are in jail to jump the bail or furlough. Leniency shown towards criminals is a threat to innocent persons. Those, who are in Jail or those, who are absconding accused, must know that their criminal appeal shall not be decided on merits, if they are absconding. 'Dismissed for default' of Criminal Appeal of absconding accused, will discourage, an idea, if at all running in the mind of accused, that if he succeeds in appeal and if order of conviction is set aside, he will move freely in the society otherwise, he will continue absconding. This tendency of, taking chance, in hearing of Criminal Appeal will be minimized by dismissing criminal appeal of absconding accused, with condition that upon his surrendering or arrest by police, he can prefer an application for restoration of criminal appeal, which will be restored as a matter of rule in ordinary circumstances, except where there is unreasonably excessive delay, Only upon their surrendering or arrest by the police, their appeal can be heard on merits, if they prefer an application for restoration of dismissed Criminal Appeal. We have left the question open what will happen after unreasonably excessive length of period, such restoration application is preferred, but, normally, such criminal appeal should be restored upon application of restoration by surrendered or arrested accused, but, all depends upon facts and circumstances of the case and the said question is left open for the decision based upon facts of each case.
9. We are conscious that the accused has remained in jail for approximately considerable length of period of conviction, but, it is not a ground for absconding accused that his criminal appeal ought to be heard on merits, even if he is absconding. The appellant cannot expect that if the criminal appeal is not heard for longer time, he can jump the bail and furlough and get result on merits in his criminal appeal against conviction. Such practice of convict ought to be deprecated. Suffice it to say that this criminal appeal is hereby dismissed only on the ground that the present appellant is absconding.
5. Therefore, taking into consideration the aforesaid reasons recorded by this Court in the above referred decision, the matter deserves to be dismissed since the convict appellant is reported absconding.
6. But, in the opinion of this Court, the matter may not rest there. If the appeal is dismissed simplicitor on account of the accused-appellant reported absconding, it may also further encourage the tendency on the part of the convict to fly free and the consequential effect would be that the person upon whom the sentence has been imposed, would easily get away from the consequences thereof. Such situation would have not only a harmful effect on the society at large, but will also have an adverse effect upon the obligation of the State to maintain rule of law. If the convict is absconding and the appeal is dismissed, the possibilities cannot be ruled out td the extent that neither the police may take any action nor the Court may be in a position to face any further order after the dismissal of the appeal, may be on the ground of accused-appellant re-ported absconding.
7. If any accused or convict is reported absconding, two normal consequences would follow. One is that the Court may be required to issue non-bailable warrant so as to authorise the police to trace the whereabouts of the accused and to bring to the custody and thereafter, to deal with him in accordance with law. The State even otherwise also cannot avoid such consequences, on mere dismissal of the appeal as the accused is reported absconding. The second is that if any accused or convict is reported absconding, his properties are required to be attached by issuing proclamation for such purpose in accordance with the provision of Sections 82, 83, 84, and 85 of the Code of Criminal Procedure. As such, the essential purpose of the aforesaid provisions in the CRPC is with a view to secure the presence or the custody of the accused against whom the State has put up the charge or he is convicted after the trial by the competent Court. Therefore, in a matter where the accused or the convict is reported absconding, such consequences of attachment of the property of the accused-convict is required to be followed by the State with the essential purpose to bring pressure upon the accused for surrendering to the police or Court, as the case may be, failing which, the consequences of loosing the property held by the accused-convict.
8. In view of the aforesaid, it appears that while dismissing the appeal on the ground that the accused-appellant is reported absconding, appropriate directions also deserve to be issued not only for the proper enforcement of the rule of law, but also to ensure that there is sincere effort by the police in this regard and the report thereof is made to the officer of the Court who may be assigned with such work.
9. Hence, the following order:
I) Non-bailable warrant shall be issued against the appellant-convict who is reported absconding, so as to bring, him to the custody/jail. The Director General of Police shall assign the work of enforcement of the warrant to the concerned Police Officer not below the rank of P.I. for tracing the accused and to put him to the custody.
If the appellant-convict is not found in spite of the effort by the police, his property shall be attached and the appropriate action shall be taken for attachment and disposal of the property as per the Code of Criminal Procedure.
II) The officer who may be marked by the Director General of Police will also undertake the aforesaid action for attachment and for disposal of the property In accordance with law.
III) The report shall be submitted for compliance to the aforesaid direction by the Director General of Police to this Court within a period of 6 months from today and such report shall be placed before the Registrar (Judicial) of this Court. If the Registrar (Judicial) is of the view that the proper action is not taken, he will place the matter before the Court, taking up conviction appeal where the sentence is 10 years and above, for appropriate orders.
IV) In the event, the appellant-convict surrenders to the jail or he is put to the custody by putting him in jail, it will be open to him to move this Court for restoration of the appeal, which shall be considered in accordance with law.
10. Appeal is dismissed with the aforesaid direction accordingly.