Convicts who misuse sentence suspension must be firmly dealt with

1. Leave granted.

2. Appellant challenges the judgment and order dated 2nd December,

20241 of the High Court of Jharkhand at Ranchi2, which was rendered

while disposing of his appeal3 under Section 374(2), Code of

Criminal Procedure, 1973. While partly allowing such appeal by

setting aside the conviction recorded by the relevant sessions court

against the appellant under Section 302, Indian Penal Code, 18604

and the sentence of life imprisonment, a Division Bench of the High

1 impugned order

2 High Court

3 CRADB No. 58 of 2003

4 IPC

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Court altered the conviction to one under Section 304 – Part II, IPC

and sentenced the appellant to 5 years rigorous imprisonment.

3. While hearing the appeal, we are reminded of the expression “give

him an inch and he will ask for a mile”.

4. Having regard to the final order we propose to pass, it is not

considered necessary to examine the appeal on its own merits by

appreciating and analysing the evidence – oral and documentary –

presented at the trial. Suffice it to note, the appellant was convicted

by the relevant sessions court on 25th November, 2002 in respect of

the crime of murder committed by him on 28th October, 2000,

whereafter he carried such conviction before the High Court in

appeal in the early part of 2003 itself. It was initially considered on

21st January, 2003 and then on 25th February, 2003. Right from 29th

October, 2000, the appellant was in pre-trial custody. The custody

certificate reveals that he was released from custody on 10th March,

2003. Though the relevant order is not on record, we find from the

impugned order that the appellant was on bail. It is, therefore,

assumed that he obtained an order for suspension of sentence and

was consequently released on bail. For long 20 years thence, the

appeal was not listed for hearing. Ultimately, the appeal came to be

listed before a Division Bench of the High Court on 14th November,

2024. The order passed on that day records that none had appeared

on behalf of the appellant despite repeated calls. The appeal having

been filed in 2003, the Division Bench appointed an advocate of

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more than 15 years’ standing as amicus curiae5 to assist the Court.

Office was directed to hand over the soft copy of the entire brief to

the amicus and the appeal was directed to be relisted after two

weeks. The name of the amicus was also directed to be reflected in

the cause list on behalf of the appellant.

5. The learned amicus argued the appeal on 2nd December, 2024. He

raised the point that the “case cannot come within the purview of

Section 302” of the IPC. According to him, insofar as the weapon of

offence is concerned, the evidence of PW-2 on the one hand and the

PW-3 and PW-4 on the other were contradictory. That apart, the

entire incident occurred in the heat of passion when a sudden

quarrel had taken place due to watering of the field; hence,

Exception 4 of Section 300, IPC would be attracted in the case.

Learned counsel appearing for the State opposed the appeal and

argued that having regard to the nature of injuries suffered by the

deceased (four blows on the head and one on the leg), there was

clear intention of the appellant to commit murder. The discrepancy

pointed out insofar as the weapon of offence is concerned, counsel

argued, was immaterial. Since the statement of the autopsy surgeon

(PW-1) suggested that the cause of death was due to shock and

haemorrhage caused by hard and blunt substance, it substantiated

and corroborated the oral evidence of PW-3 and PW-4. Dismissal of

the appeal was, accordingly, prayed.

5 amicus

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6. Upon threadbare consideration of the evidence led at the trial, the

Division Bench formed the opinion that the case falls within

Exception 4 of Section 300, IPC. Accordingly, the conviction for

murder was set aside and substituted by recording conviction under

Section 304 Part – II with a reduced sentence of imprisonment, as

noted above. Since the appellant was on bail during pendency of the

appeal, such concession was withdrawn and he was directed to

forthwith surrender to serve the rest of the sentence, if not already

served.

7. The custody certificate dated 16th August, 2025 reveals that as on

that date, the appellant suffered incarceration for two years eleven

months twenty-seven days. Today, the appellant has served a little

less than three years seven months out of the prison term of five

years.

8. When the special leave petition, out of which this appeal arises, was

taken up for consideration on 7th November, 2025, learned counsel

for the appellant had informed a coordinate bench of this Court that

the appellant had not been made aware of absence of learned

counsel engaged by him to prosecute the appeal before the Division

Bench and that such bench proceeded to appoint the amicus

without the appellant’s knowledge. Hearing the same, the

coordinate bench had the occasion to call for a report from the

registry of the High Court as to whether the statement of the

appellant is correct.

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9. A report dated 19th November, 2025 has since been filed by the

Registrar General of the High Court. On a reading thereof, it does

appear that no notice was issued to the appellant to the effect that

his learned counsel was not appearing to prosecute the appeal and

that an amicus had been appointed by the Division Bench.

10. On perusal of such report, notice was issued on 24th November,

2025.

11. At the hearing today, learned counsel for the appellant vehemently

contends that there has been a gross failure of justice, in that the

appellant has suffered prejudice by not being meted out fair

treatment. The grounds which the appellant had raised in his

memorandum of appeal filed in the High Court were not urged by

the learned amicus; instead, he urged a ground which the appellant

had not raised in such memorandum. As a result, the Division Bench

was disabled from examining whether the appellant had set up a

strong case for acquittal.

12. Learned counsel, therefore, urges that he may be allowed to raise all

such grounds which the appellant had raised in the memorandum of

appeal that was filed in the High Court before us to secure an order

of setting aside the conviction under Section 304 Part – II, IPC and

the sentence of 5 years rigorous imprisonment and to allow the

appeal by recording an acquittal.

13. We are not prepared to accept this argument. It is true that

whatever grounds the appellant did raise in the memorandum of

appeal were not urged before the High Court by the learned amicus.

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However, nothing turns on it. If such grounds have not been urged,

the blame cannot be placed on the learned amicus. The learned

amicus came to be appointed by the High Court when it was noticed

that the appeal remained pending for more than two decades and

there was no representation from the side of the appellant despite

repeated calls. In his wisdom, the learned amicus urged only one

ground and succeeded. We see nothing wrong in the approach of

the learned amicus. Also, the approach of the High Court

endeavouring to expedite a decision on the appeal is not unjustified.

Appellant was enjoying the concession of bail for two decades

without being in any manner concerned about the fate of his appeal.

It was not a case where the appellant was in custody and, thus,

disabled or inconvenienced to contact his counsel to argue the

appeal. Appellant, while enlarged on bail, has himself to blame for

not keeping track of his appeal and by not persuading the High

Court to decide the appeal at an early date, considering the

vehemence with which learned counsel seeks to argue before us

that the appellant merits an acquittal based on the multiple grounds

raised in the memorandum of appeal. We hasten to add that

whatever be the worth of the grounds so raised, the appellant

cannot appeal to us to consider the same for the first time once it is

found that such grounds were not pressed for consideration by the

High Court.

14. Having held so, we find that the High Court in its anxiety to deliver

justice without further delay and to decide the appeal expeditiously

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upon hearing the learned amicus, had not made an attempt to

inform the appellant that his appeal having been listed for final

hearing (after two decades) and there being absence of

representation from his side, (on the first day) an amicus had been

appointed to represent him. The High Court was under no obligation

to inform the appellant of his counsel’s absence; however, it would

have been a desirable precaution if the appellant were so informed.

This is more so, because, this Court has taken the view that

assistance in the form of legal aid should be real and meaningful

and not by way of a token gesture or to complete an idle formality.

None can possibly doubt the High Court’s genuine intention to

render legal assistance to a non-appearing convict by appointing an

amicus on his behalf to assist the court render justice but, perhaps,

justice would have been better served if an intimation by way of a

notice been sent, bearing in mind that the appeal was listed for the

first time for hearing twenty-one years after the appellant was

released on bail.

15. We are, therefore, inclined to order a remand for hearing of the

appeal de novo. The impugned order dated 2nd December, 2024 is

set aside with the result that the appellant’s appeal shall stand

revived on the file of the High Court. It shall be decided in the

manner observed hereafter.

16. Preferably, the very same member Judges of the Division Bench who

had the occasion to decide the appeal on 2nd December, 2024, may

be assigned to hear the appeal, subject to their availability. If such

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assignment is not possible or is unworkable, we request the Chief

Justice of the High Court to assign the appeal to a Division Bench of

which at least one of the member Judges, who earlier decided the

appellant’s appeal, forms the quorum.

17. Since the appellant wishes to be represented by his own counsel

before the Division Bench, there shall be no need to appoint an

amicus if such counsel does not turn up to press the appeal on the

date to be notified a week in advance by the Registry. In the unlikely

event of the appellant being unrepresented again, the Division

Bench would be well advised to decide the appeal in such manner it

thinks fit and proper.

18. Having regard to the fact that the incident of crime dates back to

28th October, 2000 and that the appellant claims to be a

septuagenarian by now, it would be eminently desirable if the

Division Bench decides the appeal as early as possible from the date

of first hearing. All points on merit are kept open to be urged by the

appellant and the respondent before the High Court. While deciding

the appeal, the High Court may not be influenced by the

observations/findings made in the impugned order dated 2nd

December, 2024.

19. Appellant was released from custody on 10th March, 2003 during

pendency of the appeal and taken back into custody on 30th

December, 2024 when the appeal was dismissed by the impugned

order dated 2nd December, 2024. In view thereof and since the

impugned order has been set aside, the status quo ante ought to be

8

restored. He be released on bail forthwith, subject to such terms and

conditions as are imposed by the trial court.

20. We clarify that the liberty of the appellant shall not be curtailed till

such time the appeal is disposed of by the Division Bench on its own

merits in terms of this order.

21. Accordingly, the appeal stands partly allowed on the aforesaid

terms. Pending application, if any, stands disposed of.

22. Before parting, we wish to refer to the decision of this Court

reported in Anokhi Lal vs. State of Madhya Pradesh6. A three-

Judge Bench speaking through Hon’ble U.U. Lalit, J. (as the learned

Chief Justice then was) poignantly observed as follows:

26. Expeditious disposal is undoubtedly required in criminal

matters and that would naturally be part of guarantee of fair

trial. However, the attempts to expedite the process should

not be at the expense of the basic elements of fairness and

the opportunity to the accused, on which postulates, the

entire criminal administration of justice is founded. In the

pursuit for expeditious disposal, the cause of justice must

never be allowed to suffer or be sacrificed. What is paramount

is the cause of justice and keeping the basic ingredients which

secure that as a core idea and ideal, the process may be

expedited, but fast tracking of process must never ever result

in burying the cause of justice.

Thereafter, the Court proceeded to lay down norms to avoid

repetition of infirmities noticed in the case under consideration. It

was said thus:

31. Before we part, we must lay down certain norms so that

the infirmities that we have noticed in the present matter are

not repeated:

31.1. In all cases where there is a possibility of life sentence

or death sentence, learned advocates who have put in

minimum of 10 years’ practice at the Bar alone be considered

to be appointed as Amicus Curiae or through legal services to

represent an accused.

6 2019 20 SCC 196

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31.2. In all matters dealt with by the High Court concerning

confirmation of death sentence, Senior Advocates of the Court

must first be considered to be appointed as Amicus Curiae.

31.3. Whenever any learned counsel is appointed as Amicus

Curiae, some reasonable time may be provided to enable the

counsel to prepare the matter. There cannot be any hard-andfast

rule in that behalf. However, a minimum of seven days’

time may normally be considered to be appropriate and

adequate.

31.4. Any learned counsel, who is appointed as Amicus Curiae

on behalf of the accused must normally be granted to have

meetings and discussion with the accused concerned. Such

interactions may prove to be helpful as was noticed in Imtiyaz

Ramzan Khan [(2018) 9 SCC 160].

23. In continuation of the above and in the light of what has transpired in course of the present proceedings, we wish to make an additional

observation. It is a matter of common knowledge that once a

convict obtains an order from the appellate court suspending the

sentence of imprisonment and is, consequently, released on bail,

more often than not, he neglects and/or fails to cooperate with the

court and impedes an expeditious decision on his appeal by staying

away from the proceedings with a view to ensure that his liberty is

not curtailed, if the appeal were to fail. Drawing from experience, we

can record that on many an occasion, such convicts become

untraceable. These convicts, enjoying the concession of bail and

misusing it, need to be dealt with firm and strong hands by the

courts. Having regard to the dictum of the three-Judge Bench in

Anokhi Lal (supra) and in order to curb the tendency of convicts to

raise technical pleas of the nature which were advanced before us,

we observe that, henceforth, whenever an appellate court considers

it desirable to appoint an amicus to represent a convict whose

counsel is absent, such court may also consider the desirability of

issuing a notice from the registry to the address of the convict

mentioned in the memorandum of appeal, for such notice to be

served on him through the jurisdictional police station, with an

intimation that the convict may contact the learned amicus and

provide him necessary instructions so that his case is argued before

the court effectively and meaningfully. In the event the convict

contacts the amicus and provides instructions, there would

ordinarily be no impediment in proceeding with hearing of the

appeal. If, indeed, the convict desires to have his own counsel argue

the appeal on his behalf and not the amicus, the court may hear

such counsel in addition to the amicus. However, if the service

report indicates that the convict was not found at the address or

that he refused to accept notice despite being present, it would

amount to sufficient compliance if the notice is pasted on the outer

wall of the premises, address whereof is mentioned in the cause title

of the memorandum of appeal. Should the convict still remain

dormant, and it is so reported, the High Court may proceed to

decide the appeal without waiting for the convict to turn up either in

person or through the counsel of his choice engaged by him. This

process, in our view, would substantially serve the purpose of

eliminating any plea of unfairness being raised before this Court if

an appeal is disposed of upon hearing the amicus appointed by the

court. Additionally, in a case of like nature where the appeal is listed

two decades after grant of bail, this process would ensure obtaining

of information as to whether the appeal survives for decision or

stands abated. In case of the latter, the courts could avoid spending

precious judicial time deciding an appeal which, by operation of law,

may not require a decision on merits. Of course, for a convict in

custody who has committed an offence punishable with death or life

imprisonment, the directions in Anokhi Lal (supra) have to be

scrupulously followed apart from the relevant rules regulating the

business of the courts concerned.

24. We hope and trust that a similar situation does not arise in future.

……………………………………..J.

[DIPANKAR DATTA]

………………………………………J.

[SATISH CHANDRA SHARMA]

New Delhi;

March 16, 2026.

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