Suresh Babu vs State

T. Sudanthiram, J.—The revision petitioner herein is the accused in C.C. No. 290 of 2005 on the file of the Judicial Magistrate No. 1,

Poonamalle and he was convicted by the trial court for offences u/s 279 and 304(A) I.P.C. Aggrieved by the order of the trial court; the revision

petitioner preferred an appeal before the learned Principal Sessions Judge, Tniruvallur in C.A. No. 41 of 2010. The said appeal was dismissed on

08.06.2010 as the accused/revision petitioner herein was called absent. Aggrieved by the said order, the revision petitioner has preferred this

criminal revision.

The learned counsel for the petitioner submits that the appeal was filed along with an application for suspension of sentence before the Sessions

Judge and the appeal was called for admission. On 19.5.2010, during the vacation period, the appeal was admitted and sentence of imprisonment

imposed by the Trial Court was also suspended by the (Vacation Judge) Fast Track Court, Thiruvallur. Then the appeal was posted to the next

date i.e. 08.06.2010 and on the said date, the revision petitioner instead of going to the Principal Sessions Judge, Thiruvallur, had gone before the

Hi Fast Track Court, Thiruvallur and he was standing there expecting that the case will be called, in the mean time, the case has been called before

the Principal Sessions Judge and had been dismissed.

The learned counsel for the petitioner further submitted that the appeal had been dismissed on the very next hearing by the learned Sessions

Judge and he had not given any opportunity for the accused to argue his case through his counsel. The learned counsel also submitted that there is

no provision in Code of Criminal Procedure to dismiss the criminal appeal for non appearance of the accused and also relied on the decision of the

Hon''ble Supreme Court in Bani Singh and ohters Vs. State of U.P., decision in Madan Lal Kapoor v. Rajiv Thapar and Others, 2007(4) R.C.R.

(Criminal) 157 : 2007(5) R.A.J. 106 : CDJ 2007 SC 967.

The learned Additional Public Prosecutor fairly conceded that the appeal should be disposed of only on merits and it cannot be dismissed for

default or non prosecution.

This Court considered the submissions and perused the records.

The appeal is admitted on 19.5.2010 and records were called and the appeal was posted to 08.06.2010. On 08.06.2010, it is seen from the

docket entry made that records have been received from the trial court and that the learned Judge had stated that the appellant was called absent

and the appeal is dismissed.

This Court feels that the learned Judge could have posted the case to some other day or could have sent notice to the accused. It is not known

as to why the learned Judge has acted so hurriedly by dismissing the appeal. Paragraph 14 and 15 of the decision of the Hon''ble Supreme Court

reported in 1996 S.C.C (Crl) 848(stated supra), reads as follows:

We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo''s

case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of S. 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 S. 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 S. 385-

386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. 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. Therefore, with respect,

we find it difficult to agree with the suggestion in Ram Naresh Yadav''s case that if the appellant or his pleader is not present, the proper course

would be to dismiss the appeal for non-prosecution.

Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if

he is present, before disposal of the appeal on merits. S. 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause

notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. S. 386 then provides that the Appellate

Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that S. 385 provides for a notice of the time

and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumable because notice to the pleader was

also considered sufficient since he was representing the appellant. So also S. 386 provides for a hearing to be given to the appellant or his lawyer,

if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place

when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of S. 385-386 of the Code. The law does not enjoin

that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is

different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the: trial court.

We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case

and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present, if the lawyer is absent, and the Court deems it

appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are therefore, of the

opinion an we say so with respect, that the Division Bench which decided Ram Naresh Yadav''s case did not apply the provisions of, S. 385-386

of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his

lawyer remained absent.

In Paragraph 4 of the decision of the Hon''ble Supreme Court reported in CDJ 2007 SC 967(stated supra) it is observed as follows :

The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be

decided on merits.

Time and again, the Supreme Court and this Court has held that once the appeal is filed, the Appellate Court cannot dismiss the appeal for

default or non prosecution. Even if the appellant is found absent continuously, the Appellate Court should engage a counsel appointed by legal aid

cell and court must take utmost care to go through the records and find out whether there are any merits in the case.

The order passed by the Principal Sessions Judge, Thiruvallur dismissing the appeal is set aside. As the revision petitioner did not get an

opportunity to argue before the Sessions Court, the matter is remitted back to the Principal Sessions Court, Thiruvallur for fresh hearing of the

petitioner and disposal of the matter. The criminal revision petition is allowed.