P.Mathsyan vs Station House Officer Thalassery

Dr. Kauser Edappagath, J

This revision petition has been filed challenging the judgment of the Additional Chief Judicial Magistrate Court (for short 'the trial court') in C.C.No.454 of 2003 dated 28.01.2004 and the judgment of the Sessions Court, Thalassery (for short 'the appellate court') in Crl.A.No.148 of 2004 dated 07.10.2008.

The revision petitioner is the accused. He faced trial for the offences punishable under Sections 279 and 338 of IPC.

The prosecution case, in short, is that on 10.08.2002 at about 02.15 p.m., the revision petitioner drove a bus bearing Registration No.KL 11/J/8109 through Thalassery-Mahe National Highway in a rash and negligent manner, hit against the motorcycle driven by PW1 causing him serious injuries and thereby committed the above said offences.

I have heard Sri.T.G.Rajendran, the learned counsel for the revision petitioner and Smt.S.Rekha, the learned Senior Public Prosecutor.

The trial court, after evaluating the evidence adduced by the prosecution, found the accused guilty of the offences punishable under Sections 279 and 338 of IPC. He was convicted for the said offences. He was sentenced to undergo simple imprisonment for six months for the offence punishable under Section 279 of IPC and to undergo simple imprisonment for one year for the offence punishable under Section 338 of IPC. Aggrieved by the said conviction and sentence, the accused preferred an appeal before the appellate court as Crl.A.No.148 of 2004. When the appeal came up for hearing, there was no representation for the accused. The appellate court perused the file and decided the appeal on merits. Ultimately, the appeal was dismissed.

It is settled that when the accused has preferred an appeal against the conviction, the appeal can be disposed of on merits only after hearing the appellant or his counsel. The Apex Court in Shankar vs. State of Maharashtra (Crl.A.No.1106 of 2019 decided on 23rd July, 2019) relying on the decision in Mangat Singh vs. State of Punjab [2005 (11) SCC 185] held that when there is no representation for the appellant, the appellate court should not dispose of the case on merits. It was further held that once the appeal against the conviction is admitted, it is the duty of the appellate court either to appoint an Advocate as Amicus Curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. Relying on the said dictum, I am of the view that when the revision petitioner/appellant was not represented by an Advocate, the appellate court ought not have decided the matter on merits. Hence the impugned order is to be set aside and the matter is remitted back to the appellate court. The appellate court is directed to restore the criminal appeal on file and afford sufficient opportunity to the revision petitioner/appellant for hearing. In case, if the revision petitioner/appellant is still not represented, the appellate court shall nominate a counsel for the revision petitioner/appellant through the Legal Services Authority and dispose of the appeal in accordance with law.

This Criminal Revision Petition is allowed as above.