The bench of Justice Manoj Bajaj while hearing a criminal revision held that appeal is the only remedy available to the aggrieved person which cannot be defeated on technical grounds.
“It needs to be constantly borne in mind that in criminal law, there is only one remedy of appeal, therefore, it acquires much importance and the said remedy cannot be allowed to be defeated on technical grounds.”, in the order.
In the matter, an appeal was filed at Nawanshahr appellate court against the conviction by the trial court. The appeal was filed with a delay of two days, so a separate petition for condonation of delay was also filed. Later the counsel for the appellant withdrew the condonation application on the ground that the appellant has not contacted him, which affected the main application and it was dismissed without hearing the appellant.
“He has further contended that the counsel withdrew the application on the ground that the appellant has not contacted him and, therefore, the appellate court ought to have issued notice to the appellant before accepting the prayer. It is pointed out that the acceptance of the request of the counsel for the appellant has adversely affected the petitioner as the appeal was finally dismissed without hearing the appellant.”
The bench further stated that, the appellate court must “examine the consequences of the withdrawal”.
“the Courts have to be careful before accepting such a prayer and must examine the consequences of the withdrawal, keeping in mind the nature of the petition and the prayer made therein. Though no straight jacket formula can be laid for acceptance of such a prayer, as it would always depend upon the facts and essence of each case.”
It also states that generally withdrawal is made where there is alternate remedy in the law.
“Ordinarily, the prayer for withdrawal of application or petition is made at a particular stage and acceptance thereof does not affect the rights of the litigant on whose behalf the prayer is made, as either he/she can subsequently file the petition seeking the same relief or may avail the alternative remedy in law.”
It also states that, the court must seek explanation from the counsel as well as the court should mention the reason of acceptance where the withdrawal of application would leave litigant without remedy.
“But, in cases, where the acceptance of request for withdrawal of the application or the petition would cause prejudice to the litigant by leaving him without redress, in that eventuality, the Court must not only seek explanation from the counsel, who makes the prayer, but should itself mention the reasons for acceptance in the order. The acceptance or refusal of such a prayer by Courts is discretionary in nature and, therefore, it needs to be exercised on the strength of the sound judicial principles.”
The bench referred the observation in Subhash Chandra Maheshwari Versus Raju Solanki case which states that refusal of appeal without hearing the appellant is violation of “the principle of natural justice”.
“Further, the principle of natural justice, which is the soul of our criminal jurisprudence is violated whenever the appellate court refuses to decide the appeal without examining the merits or hearing the appellant or his pleader. This rule is well embedded not only during the course of the trial proceedings, but has equal importance at the appellate stage also. Ofcourse, the trial proceedings may carry more procedural aspects, but an appeal against conviction is founded on substance, whereupon the judgment of trial court is based, therefore, the appellate court is not supposed to pay much importance to the procedural aspect, over and above the material substance, otherwise, the purpose of appeal would stand defeated.”
After analysing the facts, the bench stated that “the appellate court wrongly proceeded to accept the prayer made by his counsel for withdrawal of application for condonation of delay, on the first day of it’s presentation.”
It further stated that, the “the counsel could have requested for withdrawal of the power of attorney”.
“Merely because the appellant failed to contact his lawyer, it would not offer a ground for the counsel to extinguish convict’s right to appeal, as alternatively the counsel could have requested for withdrawal of the power of attorney, for no instructions…withdrawal of application for condonation of delay was against the interest of the appellant, as it attached finality to the judgment of conviction, thereby leaving no remedy for him, but to serve the sentence.”
The bench observed that “appellate court failed to exercise the necessary caution”.
“the appellate court failed to exercise the necessary caution while accepting the request for withdrawal of the application and subsequently dismissing the appeal on the ground of delay without realising that the only statutory remedy available to the convict was being rendered infructuous.”
The bench allowed the revision petition and ordered to “decided on merits in accordance with law after hearing the convict or his pleader”.