Srinagar: High Court of J&K and Ladakh has held that an “appellate court” against a “conviction” cannot dismiss an appeal for “non -prosecution”( when one fails to appear to contest a plea).
A bench of Justice Sanjeev Kumar said this while quashing an order passed by Additional District Judge, Srinagar (appellate court) whereby a criminal appeal by one Muhammad Aslam Shah against his conviction by Sub Judge Special Mobile Magistrate, Srinagar (trial court) was dismissed for non prosecution.
Shah through his counsel Shafqat Nazir contended before the High Court that the
Code of Criminal Procedure does not contain any provision empowering the Appellate Court, hearing the appeal against the conviction, to dismiss the same in default or for non-prosecution.
Agreeing with this contention, the court said, “If the appellant, who has filed the conviction appeal, does not appear on the date of hearing of the appeal, the only course available to the court is to appoint amicus curiae and decide the appeal on merits”.
“In a case where the appellant-convict is on bail and does not appear before the court, it could be a case of non-compliance of the terms and conditions of the bail; in such situation the appellate court is well within its powers to secure the presence of the appellant-convict through bailable or non-bailable warrant, as it may deem fit”, court added.
The Court allowed the revision petition and quashed the order of the appellate court . The Court ordered that the petitioner who had been taken into custody pursuant to the order passed by the appellate court be set at liberty. “ (He) would remain on bail subject to the terms and conditions already imposed by the appellate court,” the Court said and directed the petitioner( Shah) to appear along with his counsel before the appellate court on December 8.
In his plea before the High Court, Shah had challenged the order of the appellate court primarily on the ground that “there is no provision in the Code of Criminal Procedure which empowers the appellate court to dismiss the conviction appeal other than on merits”.
His counsel argued that the “the criminal appeal against the order of the trial court cannot be dismissed by the appellate court for non-prosecution on account of absence of the appellant-convict”.
“In such situation where the appellant- convict does not appear on the date the appeal is called for hearing, the only option to the appellate court is to appoint amicus curiae and decide the appeal on merits”
“ If the appellant-convict, is on bail granted by the appellate court, he is bound to adhere to the terms and conditions of the said bail and violation thereof may entail securing of his presence through bailable or non-bailable warrant,” the counsel said.