Kantheti Radhakrishna Murthy vs State Of Ap And Others

T Mallikarjuna Rao, J

This Criminal Revisioon Case, under Sections 438 and 442 of Bharatiya Nagarik Suraksha Sanhitaa, 2023 (for short, ‘BNSS’) is filed against the Judgment and Order, datedd 02.02.2024, in Criminal Appeal No.60 of 2020 on the file of VII Additional District and Sessions Judge, Prakasam District at Ongole (for short, ‘the 1st Appellate Court’). The Accused/Revisio n Petitioner was convicted and sentencced to undergo simple imprisonment for six months and to pay a fine of Rs.2,000,000/- in a Complaint Case in C.C. No.181 of 2017 on the file of Judicial Magistrate of First Class, Parchur (for shorrt, ‘the Trial Court’) under section 138 of Negotiable Instrument Act, 1881 (forr short, N.I. Act'). Aggrieved by the Juddgment, he preferred the Criminal Appeal No.60 of 2020.

I have heard learned Counsel appearing for the Revision Petitioner/Accused and the learned Assistant Public Prosecutor appearing for the Respondent/State.

I have carefully reviewed the impugned Judgment and Order in Crl.A.No.60 of 2020. The 1st Appellate Court, vide impugned Judgment and Order, summarily dismissed the Appeal preferred by the Appellant/Accused vide the following Judgment:

“Appellant called absent. Process not paid. There is no representation on his behalf. As seen from the record, since from the date of institution of appeal, the appellant did not appear before the Court and paid process to issue summons to the complainant/R1. He did not evince any interest to prosecute the appeal. As such, it is no longer required to keep the record pending on the file requiring the presence of appellate to prosecute the appeal. Hence, the appeal is liable to be dismissed for default of non-prosecution.

In the result, the criminal appeal is dismissed for default of non-prosecution. After receipt of entire record, the Trial Court is directed to take necessary steps against the appellant/accused for serving the sentence”.

Learned Counsel for the Revision Petitioner/Accused submits that if the Accused does not appear and non-payment of process through Counsel appointed by him, the Court is obliged to proceed with the hearing of the case only after appointing amicus curiae but cannot dismiss the Appeal, merely because of non-representation or default of the advocate for the Accused.

Learned Assistant Public Prosecutor submits that as per the decisions of the Hon’ble Supreme Court, it is now well settled that a criminal appeal should be disposed of on merits and not by dismissal in default

In Dhananjay Rai alias Guddu Rai v. State of Bihar AIR 2022 SC 3346, the Hon’ble Apex Court held as follows:

"8. The anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits. Therefore, the impugned Judgment will have to be set aside and the Appeal will have to be remanded to the High Court for consideration on merits."

In Madan Lal Kapoor V. Rajiv Thapar (2007) 7 SCC 623, a Two-Judge Bench of the Hon’ble Apex Court held that the rule laid down by this Court that a Criminal Appeal should not be dismissed for default would also apply to Criminal Revisions. The reference thus made was to the decision of a Three-Judge Bench of the Hon’ble Apex Court Court in Bani Singh V. State of U.P. (1996) 4 SCC 720 In Bani Singh’s case (supra), the Hon’ble Apex Court held thus:

"14. …… The plain language of Section 385 makes it clear that if the appellate Court does not consider the Appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the appellate Court may dispose of the Appeal after hearing the accused or his Counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the Appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the Appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate Court to dispose of the Appeal on merits, not merely by perusing the reasoning of the trial court in the Judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the Appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record…..."

In Ganimineni Mahu v. Sakhamuri Rangaiah Chowdary and another 2020 (1) ALD (Crl.) 465 (A.P.), this Court held in Paragraph No.14 as follows:

“14. Thus, from the ratio laid down in the aforesaid judgments, the legal position is clear that there is no provision in the Criminal Procedure Code which enables the Courts to dismiss the criminal Appeal or criminal revision for default on account of non-appearance of the appellant or his advocate for hearing in the criminal Appeal or criminal revision. Therefore, even when the appellant or the revision petitioner and their Counsel fails to turn up for hearing in the criminal appeals or criminal revisions inspite of granting several opportunities to them, the Courts cannot dismiss the said criminal appeals or criminal revisions for default. At best the Court can only dispose of the said criminal appeals or criminal revisions on merits as per the material available on record."

Given the well-settled legal position, this Court views that the learned Judge could not dismiss the Criminal Appeal for default of appearance. If the Appellant was absent, the learned Judge should have appointed Legal Aid Counsel and then proceeded to dispose of the Appeal on merits. Needless to say, both parties shall cooperate with the 1st Appellate Court to expedite disposal of the Criminal Appeal.

Accordingly, the Criminal Revision Case is allowed. The order dated 02.02.2024, in Crl.A.No.60 of 2020, on the file of the Court of VII Additional District and Sessions Judge, Prakasam District at Ongole, is set aside. The matter is remanded to the 1st Appellate Court for fresh disposal on merits in light of the observations made in the order.

In this Criminal Revision Case, pending miscellaneous applications, if any, shall stand closed.