2004 ALL MR (Cri) 1603
IN THE HIGH COURT JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.G. DESHPANDE AND P.S. BRAHME, JJ.

Vijay S/O. Suryabhanji Kshirsagar Vs. State Of Maharashtra

Criminal Appeal No.34 of 1998

12th February, 2004

Petitioner Counsel: Shri. R. M. DAGA
Respondent Counsel: Shri. T. A. MIRZA

Criminal P.C. (1973), S.374 - Appeal from conviction - Right of absconding accused - Appellant accused granted temporary bail - Appellant absconding - Held, an accused who is absconding, who is fugitive from justice, who does not surrender to the jurisdiction of the court and who disobeys and flouts the orders of Court and also disrespects the bond executed by him, has no right of being heard on merits - Appeal liable to be dismissed.

The right of appeal is a statutory right given to an aggrieved person. The same statute gives him right to ask for suspension of sentence pending appeal and sentences are suspended pending appeal in order that in a given case a convict has not to undergo sentence if there are chances of his acquittal ultimately or the circumstances of the case requires so. Similarly, the convicted accused are granted bail pending appeal asking them to execute bond to ensure their appearance at the time of final hearing so that they can submit themselves to the orders of the Court. An accused i.e. like the present appellant, who was granted temporary bail, by absconding, has shown that he has no regards for the Courts orders and he does not care about the judicial system of this country and he does not want to surrender himself to the jurisdiction of the Court. If the appeal is heard when the accused is absconding and it ultimately results in acquittal then it will create a very bad picture before all the persons facing criminal trial because they will carry an impression that their matter can be heard even if they abscond and they can get acquittal. On the contrary, if the appeal is dismissed in the absence of any merits in the matter then the order of conviction that is going to be confirmed cannot be enforced and the accused cannot be made to suffer the imprisonment. It will, therefore, be futile attempt to hear the appeal and it will create a situation which will definitely be exploited by all those convicts who get temporary bail from the Court or who are released by the Court pending appeal and then abscond. Therefore, an accused who is absconding, who is fugitive from justice, who does not surrender to the jurisdiction of the Court and who disobeys and flouts the orders of the Court and also disrespects the bond executed by him, has no right of being heard on merits. In this case all the necessary steps for securing the appellant have been taken including forfeiture of bonds of sureties and issuance of proclamation under Section 82 of Code of Criminal Procedure and, therefore, in the circumstances, the appeal cannot be heard and it has got to be dismissed. [Para 7,8]

JUDGMENT

D. G. DESHPANDE, J. :- Heard Shri. Daga, learned counsel for the appellant and Shri. Mirza, learned Additional Public Prosecutor for the respondent-State.

2. The accused, Vijay Suryabhanji Kshirsagar, who is the only accused and appellant in this appeal has filed this appeal, challenging his conviction under Section 302 of Indian Penal Code and the related judgment dated 7-11-1997 delivered by the 2nd Additional Sessions Judge, Wardha, by which he was sentenced to imprisonment for life. The accused is convicted for committing the murder of his wife Pushpa with whom he was married in the year 1990 and whom he murdered in the year 1997. It is a case of setting Pushpa on fire by the accused.

3. The appellant, therefore applied for bail but the Division Bench of this Court by its order dated 23-2-1998 permitted the appellant to withdraw the said application. Thereafter the appellant - accused applied for temporary suspension of sentence and grant of bail on the ground that his mother Smt. Sumanbai Kshirsagar is suffering from severe heart problem. This application was allowed by this Court for a temporary bail of one week on furnishing P. R. Bond in the sum of Rs.10,000/- with two sureties in the like amount.

4. However, the 2nd Additional Sessions Judge, Wardha, has made a report to this court that though the accused-appellant was released on temporary bail for one week, the accused has not surrendered and was absconding. This Court vide order dated 23-7-2002 issued non-bailable warrant for the arrest of the appellant. Thereafter, again by order dated 13-8-2002, this Court directed the Sessions Judge, Wardha, to take steps to procure the presence of sureties and forfeit the bonds in addition to causing arrest of the appellant and submit his report within four weeks.

5. Inspite of the repeated orders of this Court, the accused did not surrender nor he could be arrested. The bail bonds executed by the sureties were reported misplaced from the office of Wardha. Therefore, this Court directed that the action, according to law, should be taken against them. But that was a different issue. Thereafter, reports of the police at different stages were called for, they were filed. Permission for issuance of Proclamation under Section 82 of the Code of Criminal Procedure was granted by this Court on 15-1-2003 and accordingly the proclamation was issued.

6. When this matter came for hearing, Shri. Daga, learned counsel for the appellant showed his willigness to proceed with the matter even when the accused is absconding. We asked Shri. Daga, whether an absconding accused has a right of being heard in the matter. Shri. Daga had no satisfactory explanation or answer.

7. In our considered opinion, the right of appeal is a statutory right given to an aggrieved person. The same statute gives him right to ask for suspension of sentence pending appeal and sentences are suspended pending appeal in order that in a given case a convict has not to undergo sentence if there are chances of his acquittal ultimately or the circumstances of the case requires so. Similarly, the convicted accused are granted bail pending appeal, asking them to execute bond to ensure their appearance at the time of final hearing so that they can submit themselves to the orders of the Court. An accused i.e. like the present appellant, who was granted temporary bail, by absconding, has shown that he has no regards for the Courts orders and he does not care about he judicial system of this country and he does not want to surrender himself to the jurisdiction of the Court.

8. If the appeal is heard when the accused is absconding and it ultimately results in acquittal then it will create a very bad picture before all the persons facing criminal trial because they will carry an impression that their matter can be heard even if they abscond and they can get acquittal. On the contrary, if the appeal is dismissed in the absence of any merits in the matter then the order of conviction that is going to be confirmed cannot be enforced and the accused cannot be made to suffer the imprisonment. It will, therefore, be futile attempt to hear the appeal and it will create a situation which will definitely be exploited by all those convicts who get temporary bail from the Court or who are released by the Court pending appeal and then abscond. Therefore, an accused who is absconding, who is fugitive from justice, who does not surrender to the jurisdiction of the Court and who disobeys and flouts the orders of the Court and also disrespects the bond executed by him, has no right of being heard on merits. In this case all the necessary steps for securing the appellant have been taken including forfeiture of bonds of sureties and issuance of proclamation under Section 82 of Code of Criminal Procedure and, therefore, in the circumstances, the appeal cannot be heard and it has got to be dismissed.

9. We are, therefore, dismissing the appeal maintaining the conviction of the appellant. The order be sent to the 2nd Additional Sessions Judge, Wardha or Additional Sessions Judge, Wardha, for taking all the steps for rearresting the accused and sending him to imprisonment for undergoing the remaining period of sentence.

Appeal dismissed.