K. Murthy vs The State of Karnataka

Budihal R.B., J.—Though the matter is listed for admission, with the consent of learned counsel on both the sides, it is taken up for final disposal.

This revision petition is preferred being aggrieved by the judgment and order dated 3rd August 2009 passed by learned Sessions Judge at Haven, in Crl. Appeal No. 60/2006, confirming the judgment and order of conviction dated 13th November 2006 passed by the Additional Civil Judge (Jr. Dn.) and II Additional JMFC, Ranebennur, in C.C. No. 787/2005.

The brief facts of the prosecution case, as per the averments made before the Trial Court are that one Narayan Singh, son of Heersingh Thakur, filed the complaint alleging that he was working as a ''Gumaasta'' (clerk) in the company dealing in wholesale business of Paragon chappals and he was staying in the room provided by the company itself The master of the complainant one Kishore, son of Sumer Malji Jam, was entrusting some work to the complainant and on the date of the incident also, he was instructed to collect the money from the customers and accordingly, he came to Ranebennur and he was collecting the amount which was due to his master. As instructed by his master, he collected Rs. 32,320/- from Seema Footwear, Rs. 35,000/- from New Bharat Footwear, Rs. 30,500/- from Mysore shoe Palace and Rs. 31,390/- from Anand Footwear at M.G. Road and totally he collected Rs. 1,29,310/-, he put the said amount in the cash bag, went to the bus stand to go to Hubli and boarded the bus No. KA-25/F-1801 and he was sitting in the back side seat of the said bus. He was having the cash bag on the left side shoulder and within a short time he felt that the said bag become weightless and when he immediately checked his bag, he saw that it was cut with the blade and the amount in the cash bag was taken away. Immediately, he alighted the bus and informed the police. On the basis of the said complaint a case was registered against the petitioner herein for the offences.

The trial Court after considering the merits of the case both oral and documentary, ultimately, convicted the accused person for the alleged offences under Section 379 of IPC and sentenced the accused to undergo rigorous imprisonment for three years and to pay fine of Rs. 2,000/-. The petitioner herein preferred an appeal before the first Appellate Court in Crl. A. No. 60/2006. The first Appellate Court dismissed the appeal confirming the judgment and order of conviction passed by the trial Court.

In para No. 5 of its judgment, the first Appellate Court has observed as follows:--

"5) Though several opportunities were given, neither the accused nor his counsel turned up to submit their say with regard to their contention taken in their memorandum of appeal."

Being aggrieved by the judgment and order passed by the trial Court and of the first Appellate Court, the petitioner has preferred this revision petition.

Heard the arguments of the learned counsel appearing for the petitioner/accused and so also the learned Additional State Public Prosecutor for the respondent-State.

Learned counsel for the petitioner made the submission that even looking to the judgment and order of the first Appellate Court, the petitioner/accused was not heard by the Appellate Court as the counsel for the accused did not represent the accused before the Appellate Court. Hence, learned counsel submitted that in the absence of the counsel, at least, the Court could have made some arrangement by appointing some advocate as an Amicus Curiae to assist the Court in the matter. Therefore, the learned counsel made the submission that it is nothing but disposing of the matter without hearing the petitioner either personally or through an advocate and it amounts to disposing of the matter ex parte. Hence, he submitted that the revision petition be allowed and the judgment and order passed by the first Appellate Court be set aside. In support of his contention, learned counsel relied on the decision of the Hon''ble Apex Court in Md. Sukur Ali Vs. State of Assam, .

Per contra, the learned Additional State Public Prosecutor, during the course of his arguments, made the submission that the judgment and order of the first Appellate Court goes to show that sufficient opportunities were given and in spite of that the petitioner/accused was not serious in pursuing the matter before the first Appellate Court. However, he made the submission that he would leave the matter to the Hon''ble Court to pass appropriate orders.

I have perused the grounds urged in the revision petition. So also, I have perused the judgment and order passed by the Trial Court and of the first Appellate Court.

Before considering the merits of the case, and as the counsel for the revision petitioner made the submission that the order of the first Appellate Court is passed without hearing the petitioner and is in the nature of an ex parte order, I have perused the judgment and order passed by the first Appellate Court, wherein it is stated that though several opportunities were given, neither the accused nor his counsel turned up to submit their say with regard to their contention taken in their memorandum of appeal. Hence, the first Appellate Court proceeded to dispose of the matter. Looking to the judgment relied upon by the learned counsel for the revision petitioner, in para 7 of the said judgment the Hon''ble Apex Court has observed as under:

"7. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel''s negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the ''heart and soul'' of the fundamental rights."

Looking to the principle enunciated in the decision of the Hon''ble Apex Court referred to above, I am of the opinion that the matter requires to be remanded back to the first Appellate Court to dispose of the matter afresh giving liberty to both sides. Otherwise, the revision petitioner herein will be put to hardship and injury as he was not at all represented before the first Appellate Court.

Hence, revision petition is allowed. The judgment and order dated 3rd August 2009 passed by learned Sessions Judge at Haven, in Crl. Appeal No. 60/2006 is hereby set aside and the matter is remanded back to the first Appellate Court to dispose of the matter afresh after giving opportunity to both the sides and to dispose of the matter in accordance with law.

The petitioner/accused has to appear before the first Appellate Court i.e., the Court of Sessions Judge at Haven on 16th November 2015 and the first Appellate Court need not issue notice of appeal to the parties once again.

Office is directed to send the certified copy of this order to the concerned first Appellate Court immediately.