Vommi Vijaya Chandra Sagar vs The State Of Andhra Pradesh
2023 Latest Caselaw 6033 AP

Citation : 2023 Latest Caselaw 6033 AP
Judgement Date : 13 December, 2023

Andhra Pradesh High Court - Amravati

Vommi Vijaya Chandra Sagar vs The State Of Andhra Pradesh on 13 December, 2023

           THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

                  CRIMINAL REVISION CASE NO.727 of 2023


ORDER AT THE TIME OF ADMISSION:

       This Criminal Revision Case, under Sections 397 & 401 of Code of

Criminal Procedure, 1973 (for short, 'Cr. P.C.') is directed against the Judgment

and Order, dated 31.03.2023, in Criminal Appeal No.71 of 2020 on the file of IV

Additional District and Sessions Judge, Visakhapatnam (for short, 'the 1st

Appellate Court'). The Accused/Revision Petitioner was convicted and sentenced

to undergo simple imprisonment for six months and also to pay a fine of

Rs.5,000/-, IDSI for three months, in a Complaint Case vide C.C.No.156 of 2018

on the file of Special Magistrate-III, Visakhapatnam (for short, 'the trial Court')

under section 138 of Negotiable Instrument Act, 1881 (for short, N.I. Act').

Aggrieved by the Judgment, he preferred the Criminal Appeal No.71 of 2020.

2.     I   have    heard   learned    Counsel    appearing    for   the   Revision

Petitioner/Accused and 2nd Respondent and the learned Assistant Public

Prosecutor appearing for the 1st Respondent/State.

3. I have carefully reviewed the impugned Judgment and Order in

Crl.A.No.71 of 2020. The 1st Appellate Court, vide impugned Judgment and

Order, summarily dismissed the Appeal preferred by the Appellant/Accused vide

the following Judgment:

"Appellant called absent. No representation. Matter coming up for payment of process for notice to respondents since 16.06.2022. But the appellant has not choose to pay process. The appellant not T.M.R., J

even represented by his counsel. Hence, the appeal is dismissed for default".

4. Learned Counsel for the Revision Petitioner/Accused submits that if the

Accused does not appear through Counsel appointed by him, the Court is

obliged to proceed with the hearing of the case only after appointing amicus

curiae but cannot dismiss the Appeal, merely because of non-representation or

default of the advocate for the Accused or non-payment of process for notice to

the respondents.

5. Learned Assistant Public Prosecutor submits that as per the decisions of

the Hon'ble Supreme Court, it is now well settled that a criminal appeal should

be disposed of on merits and not by dismissal in default

6. In Dhananjay Rai alias Guddu Rai v. State of Bihar 1, the Hon'ble

Apex Court held as follows:

"8. The anguish expressed by the Division Bench about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits. Therefore, the impugned Judgment will have to be set aside and the Appeal will have to be remanded to the High Court for consideration on merits."

7. In Madan Lal Kapoor v. Rajiv Thapar2, a Two-Judge Bench of the

Hon'ble Apex Court held that the rule laid down by this Court that a Criminal

Appeal should not be dismissed for default would also apply to Criminal

AIR 2022 SC 3346

(2007) 7 SCC 623 T.M.R., J

Revisions. The reference thus made was to the decision of a Three-Judge

Bench of this Court in Bani Singh v. State of U.P.3 In Bani Singh's case

(supra), the Hon'ble Apex Court held thus:

"14. ...... The plain language of Section 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 Section 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 Sections 385-386 does not contemplate dismissal of the Appeal for non-prosecution simpliciter. 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......"

8. In Ganimineni Mahu v. Sakhamuri Rangaiah Chowdary and

another4, this Court held in Paragraph No.14 as follows:

"14. Thus, from the ratio laid down in the aforesaid judgments, the legal position is clear that there is no provision in the Criminal Procedure Code which enables the Courts to dismiss the criminal Appeal or criminal revision for default on account of non-appearance of the appellant or his advocate for hearing in the criminal Appeal or criminal revision. Therefore, even when the appellant or the revision petitioner and their Counsel fails to turn up for hearing in the criminal

(1996) 4 SCC 720

2020 (1) ALD (Crl.) 465 (A.P.) T.M.R., J

appeals or criminal revisions inspite of granting several opportunities to them, the Courts cannot dismiss the said criminal appeals or criminal revisions for default. At best the Court can only dispose of the said criminal appeals or criminal revisions on merits as per the material available on record."

9. Given the well-settled legal position, this Court views that the learned

Judge could not dismiss the Criminal Appeal for default of appearance or non-

payment of process of notice to the respondents. If the Appellant's Counsel was

absent, the learned Judge should have appointed Legal Aid Counsel and then

proceeded with the Appeal. Needless to say, both parties shall cooperate with

the 1st Appellate Court to expedite disposal of the Criminal Appeal.

10. Accordingly, the Criminal Revision Case is allowed. The order dated

31.03.2023, in Crl.A.No.71 of 2020, on the file of the Court of IV Additional

District and Sessions Judge, Visakhapatnam, is set aside. The matter is

remanded to the Court of IV Additional District and Sessions Judge,

Visakhapatnam, for fresh disposal on merits in light of the observations made in

the order.