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. {Para 23}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2026
BHOLA MAHTO VS. THE STATE OF JHARKHAND
Citation: 2026 INSC 257
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
1
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
2
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
3
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.
4
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.
5
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
6
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
7
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
9
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.
12
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