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2015 (8) TMI 1139 - SC - Indian LawsWhether High Court could not have heard the appeal in the absence of the counsel for the accused - Appointment of amicus curiae - Hearing of appeal in absence of appellant - Conviction under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - Imposition of fine -Held that - In the judgement of Larger bench in Bani Singh (1996 (7) TMI 562 - SUPREME COURT), it has not been laid down as a ratio that in each circumstance, the High Court should appoint a counsel failing which the judgment rendered by it would be liable to be set aside. - principles that can be culled out are (i) that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (ii) that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; (iii) that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (iv) that it can dispose of the appeal after perusing the record and judgment of the trial court; (v) that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. There is no trace of doubt that the principle laid down in Mohd. Sukur Ali (2011 (2) TMI 514 - SUPREME COURT OF INDIA) by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh (1996 (7) TMI 562 - SUPREME COURT). It, in fact, is in direct conflict with the ratio laid down in Bani Singh (supra). As far as the observation to the effect that the court should have appointed amicus curiae is in a different realm. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. With great respect, we are disposed to think, had the decision in Bani Singh (supra) been brought to the notice of the learned Judges, the view would have been different. Dictum in Mohd. Sukur Ali (2011 (2) TMI 514 - SUPREME COURT OF INDIA) to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh (supra), is per incuriam. We may hasten to clarify that barring the said aspect, we do not intend to say anything on the said judgment as far as engagement of amicus curiae or the decision rendered regard being had to the obtaining factual matrix therein or the role of the Bar Association or the lawyers. Demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. - explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted. Prosecution has established the factum of recovery and has also proven the demand and acceptance of the amount as illegal gratification. Therefore, the conviction recorded against the accused is unimpeachable. The said conclusion is in consonance with pronouncement of this Court in State of Maharahstra v. Dnyaneshwar Laxaman Rao Wankhede 2009 (7) TMI 1230 - SUPREME COURT . - Sentence of accused is reduced - Decided partly in favour of appellant.
Issues Involved:
1. Validity of the sanction order for prosecution. 2. Proof of demand and acceptance of illegal gratification. 3. Abuse of position for pecuniary advantage. 4. Whether the High Court erred in deciding the appeal in the absence of the appellant's counsel. 5. Appropriateness of the sentence imposed. Detailed Analysis: 1. Validity of the Sanction Order for Prosecution: The trial court examined whether the sanction order obtained to prosecute the accused was valid and proper. The court concluded that the sanction order was indeed valid, allowing the prosecution to proceed. 2. Proof of Demand and Acceptance of Illegal Gratification: The prosecution needed to prove that the accused demanded and accepted Rs. 5,000 as illegal gratification to show official favor to the complainant. The trial court found that the prosecution had successfully demonstrated the demand and acceptance of the bribe, leading to the conviction under Section 7 of the Prevention of Corruption Act, 1988. The High Court upheld this finding, affirming that the recovery, demand, and acceptance of illegal gratification were established beyond doubt. 3. Abuse of Position for Pecuniary Advantage: The trial court also considered whether the accused abused his position to obtain a pecuniary advantage of Rs. 5,000, thus committing an offense under Section 13(1)(d) read with Section 13(2) of the Act. Based on the evidence, including the recovery of the bribe money and the testimonies, the court held that the accused had indeed abused his position for personal gain. The High Court confirmed this finding but reduced the sentence from four years to two years of rigorous imprisonment. 4. Whether the High Court Erred in Deciding the Appeal in the Absence of the Appellant's Counsel: The appellant argued that the High Court erred in hearing the appeal in the absence of his counsel, citing the principle that an accused should not suffer due to the fault of his counsel. The Supreme Court discussed various precedents, including Mohd. Sukur Ali v. State of Assam and Bani Singh v. State of U.P., and concluded that while it is advisable to appoint an amicus curiae if the counsel is absent, it is not a mandatory requirement. The High Court had allowed the appellant's counsel to make submissions after the judgment was dictated, thus addressing the concern adequately. 5. Appropriateness of the Sentence Imposed: The appellant contended that the sentence should be reduced due to his health issues and personal circumstances. The Supreme Court noted that the Prevention of Corruption Act prescribes minimum sentences for the offenses committed. While the court acknowledged the appellant's health conditions, it reduced the sentence under Section 13(1)(d) read with Section 13(2) of the Act to one year but maintained the sentence under Section 7 of the Act, along with the fines imposed. Conclusion: The Supreme Court upheld the conviction of the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The court found no merit in the contention regarding the absence of the appellant's counsel during the High Court proceedings. The sentence was modified, reducing the imprisonment under Section 13(1)(d) read with Section 13(2) to one year, while maintaining the sentence under Section 7 and the fines imposed. The appeal was disposed of with these modifications.
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