M.D. Farooq vs State of Karnataka

This revision petition filed under S. 397 Cr.P.C. is directed against the order dt. 12-7-88 passed by the VII Additional Sessions Judge, Bangalore, in Cr.A. No. 124/87 dismissing; the said appeal for nonappearance of the appellant and his learned counsel on the said date and also on the previous date of hearing.

The facts which have given rise to this revision petition are as under :

Petitioner was accused in C.C. No. 5922 of 1984 on the file of the V Addl. Metropolitan prosecuted, Bangalore, in which he was Magistrate, Bangalore, in which he was prosecuted for offences under Sections 279 and 338 IPC. By judgment dt. 30-9-87, the learned V Addl. Metropolitan Magistrate, Bangalore, convicted the petitioner-accused for offences under Sections 279 and 338 IPC and sentenced him to pay a fine of Rs. 200/- for the offence under S. 279 IPC and Rs. 1000/- for the offence under S. 338 IPC, in all Rs. 1200/- with the usual default clause. Aggrieved by the said order of conviction and sentence, the petitioner preferred Cr. A. No. 124/87 in the Court of the City Session Judge, Bangalore City. The said appeal by transfer came to the file of the VII Additional Sessions Judge, Bangalore City. After some adjournments, the appeal came up for hearing the arguments on merits on 11-7-88. On the day, neither the petitioner appellant nor his learned counsel appeared in Court although the appeal was called a number of times and kept by till 5 p.m. However, the learned Sessions Judge adjourned the appeal to the next day i.e. 12-7-88 as a last chance. Even on 12-7-88 neither the petitioner appellant nor his learned counsel appeared in court till 4.40 p.m. Therefore, the learned Sessions Judge dismissed the appeal with the following note made in the Order-sheet :

"Criminal appeal is dismissed for non-prosecution and also as there are no grounds to interfere with the judgment of the court-below, the appeal is accordingly dismissed."

Thereafter, petitioner-appellant engaged another Advocate and filed an application under S. 374, Cr.P.C. with a prayer that his appeal dismissed for default on 12-7-88 may be restored to file and disposed of on merits justice. That application was treated as I.A. No. III. After hearing the learned counsel for the petitioner-appellant, the learned VII Addl. Session Judge. Bangalore City by order dt. 30-9-88 dismissed I.A. No. III on the ground that there was no merit in the application filed by the appellant and that too after a lapse of two months. Therefore, the petitioner-appellant has filed this revision petition on 12-9-88.

Heard Sri N. Samba Murthy learned counsel for the petitioner-accused and Sri. A. Giddappa, learned Additional state Public Prosecutor.

Sri N. Samba Murthy submitted on the strength of a decision of the Hon''ble Supreme Court in Ram Naresh Yadav v. State of Bihar AIR 1987 SC 1500 : 1987 Cri LJ 1856 that dismissal of Criminal Appeal for default is not proper and the learned Sessions Judge should have appointed an amicus curiae to assist the Court in disposing of the appeal on merits even if the appellant and his counsel failed to appear in Court and then dispose of the appeal on merits instead of dismissing it for default.

On the other hand, Sri. A. Giddappa, argued in support of the impugned order.

On consideration of the submissions made by the learned counsel on both sides, I am of the opinion that the impugned order dt. 12-7-88 of the Appellate Court deserves to be set aside. In an almost identical situation, the Hon''ble Supreme Court has I made the following observations in the case of Ram Naresh Yadav v. State of Bihar AIR 1987 SC 1500 : 1987 Cri LJ 1856 :

"It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the work in the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this detention of the matter but in criminal matter the convicts must be heard before their matters are decided on merits. 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. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter. has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent hack to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf ........."

In the light of the above observations, the only appropriate order that can be passed is to set aside the order of Appellate Court dt. 12-7-88 and remand the matter back to it for disposal of the appeal on merit in accordance with law with the hope that the learned counsel for the petitioner-appellant will not give room for such a situation as the one existed on 11-7-88 and 12-7-88 in future.

In the result, the revision petition is allowed, the order dt. 12-7-88 passed by the VII Additional Sessions Judge, Bangalore City, in Cr.A. No. 124/87 is set aside and the matter is remanded back to that Court for fresh disposal of the appeal on merits in accordance with law and in the light of the observations made above.

Petition allowed.