Legal Provisions of Section 385 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Procedure for Hearing Appeals Not Dismissed Summarily:
ADVERTISEMENTS:
The section lays down the procedure for hearing of the appeal which has been admitted and not dismissed summarily under Section 384. It provides for notices to be given to the persons mentioned therein. An order of the High Court setting aside the acquittal of the accused in appeal without notice having been sent to the accused was held to be illegal. The accused must be heard and his appearance must be ensured while disposing of the appeal.
Where the appeal is not dismissed summarily under Section 384, the Appellate Court is bound to call for the record if such record has not already been sent by the Court and then give a hearing to the parties However, the Court may dispose of the appeal even without asking for the record where the appeal is only as to the legality of the sentence.
Where the appellant himself does not insist for summoning of the record nor does the respondent raise any objection to this, the Court may dispose of the appeal, if in its opinion, the record was not very vital to the case. According to the Supreme Court, the disposal of an appeal without calling for the record is a mere irregularity which can be cured under Section 465 of the Code provided it has not resulted into any prejudice to the accused.
Image Source : luna.edu
ADVERTISEMENTS:
The Gujarat High Court was called upon to issue certain instructions to the Appellate Courts to make sure that the person presenting himself as accused in the hearing of an appeal is in fact the accused himself and none else, so as to avoid the recurrence of the Mahendra Harijivan Luhur v. State of Gujarat, case.
In that case, the elder brother of the accused was produced in place of real accused in appeal against acquittal. It was only at the stage of imposing punishment, it came to light that he was not the real accused.
The Court expressed doubt as to how it can happen without the connivance of police. It directed investigation into the matter and issued instructions that in all acquittal appeals wherever notices and warrants are issued by the High Court, the photographs and marks of identification should be cross-checked with the accused so as to establish his identity beyond doubt.
In State of Madhya Pradesh v. Parasram, while disposing of an appeal under Section 385 of Cr. P.C., the Supreme Court held that since the judgment of the High Court was not in accordance with law, the Apex Court had no option but to set aside the same and to remit the matter back to the High Court for a fresh consideration of the appeal.
ADVERTISEMENTS:
The appeal preferred by the State of Madhya Pradesh was accordingly allowed, the judgment and the order of the High Court was set aside and the appeal was remanded back to the High Court for a fresh hearing after issuing notice to the accused respondent.
It was made clear that Supreme Court had not gone into the merits of the case and the High Court shall reappraise and examine the evidence on record and decide the appeal in accordance with law.
It has been decided in the case of Dharampal and others v. State of U.P. that an appeal can be decided on merits by High Court in the absence of appellants. Where the counsel for appellants expressed hi;, inability to argue the case as there was no response from appellants despite repeated reminders to them, the Court could proceed with the appeal on merits and it cannot be said notice of appeal was not served on the appellant.
When accused (appellant) does not appear, it is the bounden duty of the High Court to look into the records and other materials including judgment of the trial Court and thereafter, decide the appeal on merits. This will be in compliance with Sections 385 and 386 Cr. P.C. in disposing of criminal appeals.