Katta Appala Narasimha Rao Appu ... vs The State Of Andhra Pradesh
2022 Latest Caselaw 7229 AP

                                1




THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
     CRIMINAL REVISION CASE NO.836 OF 2022


ORDER :

This Criminal Revision Case is preferred by the

Accused No.2, being aggrieved by the order

dated 01.8.2022, passed by the II Additional District

Judge, Amalapuram in Crl.A.No.190 of 2018, preferred

against the judgment of his conviction and sentence,

passed by the Assistant Sessions Judge, Amalapuram in

S.C.No.31 of 2011, for the offence under Section 411 of

the Indian Penal Code, 1860 (IPC).

2. The Criminal Appeal of the petitioner herein was

dismissed on 01.8.2022 by the II Additional District

Judge, Amalapuram in one sentence and it is as here

under;

"Appellant is called absent and none represented for the appellant since long time. Hence appeal is dismissed. "

3. Challenging the dismissal of appeal for default by

the above impugned order, this Criminal Revision Case

is preferred. It is contended for the petitioner that on the

date of dismissal of the appeal, the record relating to the

case in S.C.No.31 of 2011 on the file of the Assistant

Sessions Judge, Amalapuram was not received by the

appellate Court and that Criminal Appeal cannot be

dismissed for default. It is also contended that the

petitioner has fair chances to succeed in appeal if he was

heard by giving an opportunity.

4. It is true and as per Section 385 of the Code of

Criminal Procedure, 1973 when the appeal was not

dismissed summarily under Section 384 of Cr.P.C., the

appellate Court shall then sent for the record of the case

and then hear the parties. No doubt, as per proviso to

Sub-section (2) of Section 385 of Cr.P.C., the appellate

Court need to send for the record if the appeal is only as

to the extent or the legality of the sentence.

5. Since a Criminal Appeal cannot be dismissed for

default unlike civil appeals and the Court shall give an

opportunity to the accused for hearing either in person

or his counsel and even by appointing a legal aid counsel

if in case the accused cannot on his own argue or unable

to engage an advocate and thus shall pass a reasoned

judgment on merits. In this case that procedure was not

followed by the appellate Court, which shall be

deprecated.

6. Therefore, this Criminal Revision Petition deserves to

be allowed by setting aside the order dated 01.8.2022

passed in Crl.A.No.190 of 2018 on the file of the II

Additional District Judge Court, Amalapuram and

consequently Criminal Appeal No190 of 2018 is restored

to the file of the Court of II Additional District Judge

Court, Amalapuram for hearing and disposal according

to law.

Considering the submission made by the learned

counsel for the petitioner that NBW was issued against

the petitioner herein, the trial Court is directed to recall

the warrant on such conditions on an application to be

filed by the petitioner herein within a period of two (2)

weeks from the date of receipt of a copy of this order.

As a sequel, all the pending miscellaneous

applications shall stand closed.

_______________________________ K. SREENIVASA REDDY,J Date: 20.09.2022 GR

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRIMINAL REVISION CASE NO.836 OF 2022 Date: 20.09.2022 GR

In the result, this Criminal Revision Petition stands allowed, setting aside the judgment of the appellate court in Crl. Appeal No. 45 of 2008 and the matter is remitted to the appellate Crl.R.P. No.1110 of 2015 court for fresh disposal of the appeal, in accordance with law, as expeditiously as possible.

The parties are directed to appear before the appellate court on 15-10-2015 without further notice. Since all the parties have representation before this Court, the appellate court need not issue fresh notice to the parties.