Dibakar Behera vs State of Orissa

S.K. Mishra, J.—Heard learned counsel for the petitioners and learned Addl. Standing Counsel for the State. The short question that arises in the revision is that should the learned Sessions Judge dismiss the Criminal Appeal for default or non-prosecution?

The petitioners faced trial for the alleged commission of offence under Sections 447/323/236/34 I.P.C. in G.R. Case No. 588 of 1989 of the court of learned J.M.F.C., Nimapara. After properly conducted trial, the learned J.M.F.C., Nimapara held that the prosecution has failed to prove its case against the petitioners for the offence under Sections 336/447/34 of the I.P.C., but held that the petitioners are guilty of the offence u/s 323 of the I.P.C. and, therefore, he convicted them and sentenced each of them to undergo simple imprisonment for a period of six months for the offence u/s 323 of the I.P.C. Aggrieved by such judgment of conviction and order of sentence, the petitioners preferred an appeal before the learned Addl. Sessions Judge, Puri, which was transferred to the court of learned 2nd Addl. Sessions Judge, Puri and was registered as Crl. Appeal No. 43 of 2012. The case was posted to 15.5.2014 When the petitioners-appellants remained absent and no steps were taken on their behalf, the appeal was dismissed for default of the petitioners-appellants. Such order passed by the learned 2nd Addl. Sessions Judge, Puri is assailed in this revision.

In Bani Singh and ohters Vs. State of U.P., the apex Court has held that the ratio decided by the two Judges Bench in Ram Naresh Yadav and Others Vs. State of Bihar, that the Court could only dismiss the appeal for default is erroneous. The Three Judges Bench of the Apex Court in Bani Singh''s case ruled that the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. Later the Apex Court in Rishi Nandan Pandit and Others Vs. State of Bihar, followed the aforesaid principles and further held that it is a matter of prudence that the Court may, in an appropriate case, appoint a Counsel at the state''s expense to argue for the cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by Counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisable to seek the assistance of a legal talent.

Similar view has been taken in the reported decision of Banchhanidhi Singh alias Nani Singh Vs. State of Orissa, wherein this Court has held that when the Advocate for the appellant do not appear to argue the criminal appeal, learned Sessions Judge should have appointed a counsel amicus curiae to argue on behalf of the appellant. The learned Sessions Judge having not done so, in that case, this Court set side the judgment dismissing the appeal.

G.R. & C.O. (Criminal) Volume-I at Rule 65 sub-paragraph 4 clause (b) provides,

"If an appellant in a Criminal Appeal pending before the Sessions Judge/Additional Sessions Judge/Assistant Sessions Judge has no means to engage an advocate or if an advocate appearing for him does not attend the court and does not argue when called on for hearing or submits a Memo of "no instruction", the Sessions Judge or the Additional Sessions Judge or the Assistant Sessions Judge, as the case may be, shall appoint an advocate amicus curiae to represent the appellant and dispose of the appeal after hearing him."

(Emphasis supplied)

In Clause (c) reads as follows:-

"The advocate amicus curiae so appointed shall be governed by the same terms and conditions which govern the State Defence Counsel appointed in a sessions case under these Rules".

Thus, it is clear that this Court has directed in the G.R. & C.O. that whenever a criminal appeal is filed and the appellant does not appear, then the course open to the appellate court is to appoint an Advocate amicus curiae.

This Court in the case of Tikan Bindhani Vs. State of Orissa, has taken into consideration on the citations referred to above in the preceding paragraphs and held has follows:

"Law clearly empowers the appellate court to dispose of the appeal on merit and not merely on perusal of the reasons recorded in the trial court judgment, but by cross-checking all the evidences on record, reasoning and findings recorded by the trial court to find out, if they are consistent with the materials on record.

Law, therefore, does not envisage dismissal of an appeal for default or non-prosecution, but only contemplates disposal on merit after perusal of the records. Therefore, the order passed by the learned Addl. Sessions Judge that non-appearance of the learned counsel for the appellant shows that the appellant is not diligent in prosecuting the Appeal entailing dismissal of the Criminal Appeal is clearly unsustainable in the eye of law".

The ratio decided in the aforesaid case is squarely applicable to the present case. Hence, the revision petition succeeds. The order dated 15.5.2014 passed by the learned 2nd Addl. Sessions Judge, Puri in Crl. Appeal No. 43/2012 is hereby set aside. The appeal is restored to file. The learned 2nd Addl. Sessions Judge, Puri is directed to hear the appeal on merit by hearing the counsel engaged by the petitioners-appellants and if the counsel does not appear, then provide legal assistance as provided in Rule 65(4)(b) of the G.R. & C.O. (Criminal) Volume-1. The petitioners are directed to appear before the learned 2nd Addl. Sessions Judge, Puri on 14.8.2014. The CRLREV is accordingly disposed of.