Raghunath Pattnaik vs State of Orissa

B.K. Behera, J.—Upon hearing the learned counsel for the petitioner and the learned Standing Counsel and as agreed to by them, I would,for the reasons to follow, allow the application in revision setting aside the impugned judgment and order recorded by the learned Additional Sessions Judge, Phulbani, dismissing the appeal preferred by the petitioner against the order of conviction recorded-against him u/s 332 of the Indian Penal Code, sentencing him to pay a fine of Rs. 200/- and in default thereof, to undergo rigorous imprisonment for a period of six months and direct re-hearing.

As would appear from the record of the appellate Court and the impugned appellate judgment, on the date of hearing, the Advocate for the appellant-petitioner did nor appear and the learned appellate Judge heard the learned Public Prosecutor and disposed of the appeal on merits. As has been laid down by the Supreme Court in the case of Khalli and Ors. v. State of Uttar Pradesh 1982 SCC 143 when an Advocate engaged for the appellant in criminal matter does not appear, the Courtshould engage an Advocate amicus curiae and then proceed to dispose of the appeal. This principle has bean followed by this Court in Oswal Oils and Vanaspati Industries, (Prop: Oswal Woollen Mills Ltd.) and Another Vs. The Food Inspector, Berhampur Municipality, and in 1985 Cri. L.J. 228 : 1984 (I) OLR 1083 : S. Mohan Rao v. Bhubaneswar Rath.

While setting aside the impugned appellate judgment and order, I would remit the matter for fresh hearing by the learned Sessions Judge, Phulbani. The parties are to appear before the Sessions Judge for appropriate directions on the 30th of this month. The learned Sessions Judge shall then fix a suitable date for hearing in the presence of the parties. It has been submitted on behalf of the petitioner that appropriate steps will be taken by the petitioner to engage an Advocate on his behalf. If the petitioner does not engage an Advocate, the learned Sessions Judge shall engage an Advocate amicus curiae, hear both sides and then dispose of the appeal in accordance with law within a period of three months hence. The record be sent down tomorrow positively.