JUDGMENT

A.M. Bhattacharjee, J.

1. A Civil Appeal, if not dismissed summarily under the provisions of Rule 11 of Order 41 of the Code of Civil Procedure, is to be listed for hearing with notice to the respondent and if the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The cleavage of opinion as to whether such dismissal can be for default of appearance only, or on the merits also, has now been sealed by the Explanation added to Rule 17(1) of Order 41 by the Amendment of 1976, providing categorically that "nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits".

2. The law in the Criminal Jurisdiction is however different, as would appear from the provisions of Section 423 of the preceding Code of Criminal Procedure of 1898, now replaced by Section 386 of the new Code of 1973, which is in pari materia with its predecessor in the old Code of 1898. Section 386 of the present Code of Criminal Procedure provides that if a criminal appeal is not dismissed summarily Under Section 384, the same is to be heard Under Section 385, with notice to the parties and after sending for the record of the case, unless the same is already there and then the appellate Court, "after perusing such record, and hearing the appellant or his pleader, if he appears.........may, if it considers that there is no sufficient ground for interfering, dismiss the appeal" or may allow the same by passing appropriate orders.

3. The words "after perusing the record" etc., in Section 386 have all the weight of a categorical mandate and while construing those words in the corresponding Section 423 in the preceding Code, the Supreme Court was never in doubt that, to quote from the three Judge Bench decision of the Supreme Court in Sankatha Singh AIR 1962 SC 1208 at 1209 : (1962 (2) Cri LJ 288) "a criminal appeal cannot be dismissed for the default of appearance of the appellants or their Counsel "and" the Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order". To the same effect is the decision of a later two-Judge Bench of the Supreme Court in Shyam Deo Pandey AIR 1971 SC 1606 at 1610 : (1971 Cri LJ 1177), where it has been similarly ruled that "a reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel", and "the Court has either to adjourn the appeal in order to enable them to appear or it should consider the appeal on merits and pass final order". The requirement regarding the perusal of record before disposing of the appeal, even where the appellant does not appear, cannot be treated as an empty formality. Perusal of the record of the particular case and giving indication of such perusal in the order is a must before dismissing the appeal, even though the appellant or his counsel does not appear to press the appeal.

4. The position in law is so well settled because of the clear letters of the law in Section 423 of the old Code and Section 386 of the new Code, and also the gloss put on the former by the Supreme Court in a catena of decisions that any further citation would be a mere useless idle parade. But a rather recent decision of the Supreme Court in Ram Naresh Yadav AIR 1987 SC 1500 : (1987 Cri LJ 1856) may ex facie appear to strike a different note and to have ruled that "the Court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view", "but the matter can be disposed of on merits only after hearing the appellant or his Counsel" and "the Court might as well appoint a Counsel at State cost to argue on behalf of the appellants".

5. The reason behind the law providing for different courses to be adopted in appeals by the Civil Courts and the Criminal Courts is not far to seek. Criminal appeals are, more often than not, preferred by convicted persons, whose lives or personal liberties have been put in peril by the sentence of imprisonment or even of fine, if not paid. And what is more, the society as a whole is, as it ought to be, vitally interested in the prevention of improper convictions as also unmerited acquittals. The Legislature, therefore, in enacting the provisions relating to disposal of criminal appeals, has taken care to provide that once a criminal appeal is admitted for hearing, implying thereby that the order of, say, conviction and sentence, warrants reconsideration, the Court cannot end shall not dispose of the same except on the merits and after examining the record on its own, whether or not the appellant appears to prosecute the appeal. As already noted, the Supreme Court in Sankatha Singh (supra) and in Shyam Deo Pandey (supra) and in various other earlier and later decisions has ruled out dismissal of criminal appeals for default and mandated disposal, including dismissal on the merits only after examination of the records. The dictum in Ram Naresh Yadav (supra), therefore, to the effect that "the Court can dismiss the appeal for non-prosecution" may appear at first blush to be contrary to the long catena of decisions of the Supreme Court referred to hereinabove.

6. Mr. Roy, the learned counsel for the petitioner-accused, whose appeal before the Court of appeal below has been dismissed for default has, at one stage, argued that the dictum in Ram Naresh Yadav (supra), AIR 1987 SC 1500 : (1987 Cri LJ 1856) being patently against the plain statutory provisions in Section 386 of the Code of Criminal Procedure, would not bind us as a precedent. I am afraid that even if, and this I say with respect, a decision of the Supreme Court appears to the High Court to be erroneous, it is nontheless binding on the High Court. There should be no doubt that between a legislation and a precedent of the Supreme Court on such legislation, what binds the High Court more is the precedent. Whatever a legislation might have meant, it must be taken to mean what the Supreme Court says it means. With Article 141 enthralled in its majestic magnitude in the Constitution, it would not be permissible for the High Court to pass over a decision of the Supreme Court, whether against statute or in ignorance of the statute.

7. As has been pointed out by a Special Bench of this Court in Bholanath v. Madan-mohan AIR 1988 Cal 1 at 5, when faced with contrary decisions of the Supreme Court, the first course to be adopted by the High Court is to ascertain which one of them is decided by a larger Bench and to govern itself by such larger Bench decision, if any. This has been laid down by the Supreme Court itself in a series of decisions and must be taken to be the settled law and reference may be made, among others, to Union of India v. K. S. Subramaniam AIR 1976 SC 2433 at 2437 : (1976 Lab IC 1551) (at 2437). It may, however, be noted that a two Judge Bench of the Supreme Court in Javed Ahmed v. State of Maharashtra AIR 1985 SC 231 at 236 : (1984 Cri LJ 1909) has observed that "it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges."

8. Be that as it may, the wave of consistent earlier decisions, even if emanating from coequal Benches, would have been good enough to relieve us from the obligation to follow a solitary contrary decision if Ram Naresh Yadav (supra) is such a one, particularly when the latter has not, even remotely, taken note of the earlier decisions. But since one such earlier decision in Sankatha Singh, AIR 1962 SC 1208 : (1962 (2) Cri LJ 288) has emanated from a larger three Judge Bench, we, as already noted, cannot but govern ourselves by the same and hold that Under Section 386 of the Code, corresponding to Section 423 of the earlier Code which contained the law at the relevant time, a criminal appeal cannot be dismissed for the default of appearance of the appellant, but has got to be disposed of on the merits on perusal of the record, whether or not the appellant or his Counsel appears to pursue the appeal. The present revisional application must, therefore, succeed, and the order of dismissal passed by the Court of appeal must be set aside and the case sent back to the Court of appeal for disposal on merits on perusal on the record and in accordance with the provisions of Section 386.

9. But some more words about Ram Naresh Yadav, AIR 1987 SC 1500 : (1987 Cri LJ 1856) (supra) which may apparently appear to lay down something contrary to the earlier decisions. The Special Bench of this Court in Bholanath (supra) was no doubt concerned with contrary decisions of the Supreme Court rendered by Benches of coequal strength and it has ruled that in such a case, endeavours should be made, wherever possible, to reconcile those decisions. We are inclined to think that such a course should also be adopted, even when apparently contrary decisions emanate from Benches of unequal strength, before resorting to the easy course of holding that the smaller Bench decision has stood out-weighed by the larger Bench. We think that as a matter of judicial propriety, decency and decorum, the decisions of the apex tribunal of the land, even though appearing to be contrary to or inconsistent with each other or one another, must be sought to be reconciled and explained by assuming, wherever possible, that they applied to different sets of circumstances. This, as pointed out by the Special Bench, is the course which was recommended by our ancient Jurists -- "Srutirdwaidhe Smritidwaidhe Sthalaveda Prakalpate" -- i.e. in case there be two contrary precepts of the sruties or the Smrities, different cases or sets of circumstances are to be assumed for their application. As Jurist Jaimini said, contradictions or inconsistencies are not to be readily assumed, as they very often be not real, but only apparent, resulting from the application of the same or similar principle to different sets of facts -- "Prayoge Hi Virodha Syat". We would proceed accordingly.

10. If a criminal appeal is dismissed, though for default of appearance only, the order of dismissal cannot be set aside and the appeal restored to file by any appellate court subordinate to the High Court, even on proof of sufficient and satisfactory grounds for non-appearance. The reason is that the Code of Criminal Procedure, unlike the Code of Civil Procedure, does not expressly provide for such a course and, as now ruled by the Supreme Court in Bindeshwari Prasad Singh, AIR 1977 SC 2432 : (1978 Cri LJ 187) and in A. S. Gaurava, (1986) 2 SCC 709 : (1986 Cri LJ 1074), the Courts subordinate to the High Court have no inherent powers. Since the appellant in such a case would be without any remedy against the ex parte dismissal by way of restroration and may thus have to submit to an order of conviction without any opportunity of having the same re examined by the appellate court, such appellate court must not and cannot be allowed to go outside the provisions of Section 386 and to dismiss an appeal for default of appearance, but must examine the correctness, propriety or legality of the impugned order of perusal of the records in its own, even though none has appeared to press the appeal. The law laid down by the Supreme Court in Sankatha Singh, AIR 1962 SC 1208 : (1962 (2) Cri LJ 288) (supra) and in Shyam Deo Pandey, AIR 1971 SC 1606 : (1971 Cri LJ 1177) (supra) and other decisions holding the same view would govern such appeal, which cannot be dismissed for default of appearance, but must be disposed of on the merits on examination of the record under the mandate of Section 386.

11. But when a criminal appeal is pending before the High Court, which, notwithstanding Section 386, has all the inherent powers to make any order for the ends of justice or to prevent the abuse of process or other indiscipline, as expressly provided in Section 482, the provisions of Section 386 do not and cannot have any exclusive application to the exclusion of those inherent powers. The appeal in Ram Naresh Yadav (supra) was pending before the High Court having the entire gamut of inherent powers available to it. The Supreme Court has expressly demonstrated its awareness of the enormity of the problem resulting in dislocation and hampering of the working of the High Court "if Counsel do not appear when criminal appeals are called out" and has then observed in that context that "the Court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view". The reaction of the Supreme Court to the unfortunate state of affair resulting from the Advocates not appearing when criminal appeals are called out generated the above-quoted observations and with Section 482 staring at the face, no one would doubt the powers of the High Court to pass such orders of dismissal for default. And such dismissal for default under the inherent powers, instead of dismissal on merits on perusal of the records only without hearing the appellant, would also secure to the appellant the opportunity to have the ex parte dismissal set aside by the High Court, obviously in the exercise of inherent powers, on proof sufficient grounds for non-appearance. But, to repeat, the right to dismiss criminal appeal for default for appearance and then to restore the same, are not at all available to the criminal appellate courts subordinate to the High Court, which are solely governed by Section 386 and are devoid of all inherent powers.

12. We are thus inclined to hold that while a High Court may dismiss a criminal appeal for default of appearance, as held in Ram Naresh Yadav (supra) and may also restore the same to file on sufficient grounds, the criminal appellate courts subordinate to the High Court, exclusively governed by Section 386 and having no inherent powers, cannot, in view of the mandate in that Section, do so, but must dispose of the appeal on the merits on parusal of the records, even when the appellant or his Counsel does not appear to press or prosecute the appeal.

13. In the case at hand, therefore, as already indicated, the appellate court was clearly wrong in dismissing the appeal for default of appearance of the appellants or their Counsel and we accordingly set aside the order of dismissal and send the case back to the Court below for re-hearing on perusal of the records and in accordance with the provisions of Section 386, on hearing the parties or their Counsel, if they appear.

14. The petitioners will continue on the same bail as now till the disposal of the appeal by the court of appeal below.

15. The records, along with a copy of our judgment, to go down to the court of appeal forthwith.

Ajay Nath Ray, J.

16. I agree.