Jharkhand High Court
Ramesh Kumar vs State Of Jharkhand on 17 August, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 468 of 2012
Ramesh Kumar, son of late Shiv Narayan Bhagat, resident of
Chandani Chowk, Govindpur, P.O. and P.S. Govindpur, District
Singhbhum East ... ... ... Petitioner
Versus
State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. B.M. Tripathy, Senior Advocate
Mr. Naveen Kumar Jaiswal, Advocate
For the Opp. Party : Mr. P.D. Agarwal, A.P.P.
Through Video Conferencing
12/17.08.2021
1. Heard Mr. B.M. Tripathy, learned senior counsel appearing on
behalf of the petitioner.
2. Heard Mr. P.D. Agarwal, learned counsel appearing on behalf of
the opposite party-State.
3. This petition has been filed for the following reliefs:
"This revision has been filed against the judgment passed in Cr. Appeal
No. 161 of 2008 dated 23.05.2012 by learned Principal Sessions Judge,
East Singhbhum at Jamshedpur"
4. The petitioner has been convicted and sentenced by the learned
Judicial Magistrate, 1st Class, Jamshedpur in G.R. Case No.
972/2002, Trial No. 425/2008 for the offence punishable under
Section 304 A of the Indian Penal Code to undergo R.I. for one
year and fine of Rs. 1,000/- and further sentenced to fine of Rs.
1,000/- for the offence punishable under Section 279 of the Indian
Penal Code.
5. Learned counsel for the petitioner at the outset has submitted
that the present application can be disposed of on the short point.
He refers to the order dated 18.05.2012 passed by the appellate
court wherein it has been recorded as under:
"Appellant take no step. In spite of repeated adjournment no one
turned up on behalf of the appellant to argue the case. This case is
running for hearing since 2008 and in spite of giving several
opportunity no one turned up to argue the case. Argument on
behalf of learned P.P has been heard. Put up on 23.5.2012 for
judgment."
6. Learned counsel submits that admittedly the appellant
/petitioner was not heard by the appellate court and the case has
been decided against the appellant/petitioner. Learned counsel
has relied upon a judgment passed by the Hon'ble Supreme
Court reported in (2011) 2 JLJR SC 102 (Md. Sukur Ali vs. State
of Assam) and has referred to para 7 of the judgement to submit
that even if the counsel for the petitioner did not appear before
the court for final argument of the appeal, the court ought to
have appointed an amicus for disposal of the case. He further
submits that the appellate court is final court on facts and the
assistance of a counsel representing the petitioner was required
to be taken by the appellate court.
7. Learned counsel submits that considering the aforesaid judgment
passed by the Hon'ble Supreme Court and the order dated
18.05.2012 passed by the learned appellate court , the present case
may be remanded back to the appellate court i.e the court of
learned Principal Sessions Judge, East Singhbhum at Jamshedpur
who had passed the impugned judgement with a direction to
hear and dispose of the appeal afresh. Learned counsel submits
the petitioner is ready and duty bound to appear before the
learned appellate authority on any date as may be fixed by this
court through his counsel so that the matter may be ultimately
disposed of at the earliest. He also assures this court that the
counsel who would appear before the appellate court would not
seek any unnecessary adjournments and fully cooperate with the
disposal of the appeal. The learned counsel has also submitted
that the lower court records which has been received in this
revision case may be sent back to the appellate court so that the
appeal may be disposed of after considering the materials on
record.
8. The learned counsel appearing on behalf of the opposite party-
State on the other hand is not in a position to dispute that the
appellate court had decided the case in absence of the
appellant/petitioner on account of non -appearance of his
counsel on 18.05.2012 and the arguments of the State were
concluded in his absence and the matter was posted for
judgement. It is further not in dispute that no amicus as such has
been appointed by the learned appellate court to assist the court
on behalf of the appellant/petitioner for disposal of the case.
Learned counsel for the State submits that the matter may be
remanded back to the appellate authority for fresh hearing and
disposal. He also submits that a date may be fixed for appearance
of the petitioner such that the case can be disposed of at the
earliest. The learned counsel submits that some time frame may
also be given.
9. After hearing the learned counsel for the parties and considering
the undisputed facts on record that the appellate court had heard
the matter on 18.05.2012 in absence of counsel for the
appellant/petitioner by recording that the case was running for
hearing since 2008 and in spite of giving several opportunities, no
one had turned up to argue the case of the appellant/petitioner.
Admittedly only the argument of learned A.P.P. was heard on
18.05.2012 and the matter was directed to be posted for judgment
on 23.05.2012. It is also an admitted fact on record that no amicus
was appointed to assist the court on behalf of the
appellant/petitioner in the matter of disposal of the appeal.
10.Being faced with the aforesaid facts, this court is the considered
view that the petitioner was not heard at the time of disposal of
the appeal which has resulted in passing of impugned judgement
in absence of the petitioner. This court is also of the view that the
appellate court is required to consider all the materials on record
and arrive at findings and in case of non-appearance of the
appellant, the learned appellate court ought to have at least
appointed an amicus to assist the court from the side of the
appellant in the disposal of the appeal. The Hon'ble supreme
court in the case reported in (2011) 2 JLJR SC 102 (Md. Sukur Ali
vs. State of Assam) has held in para 7 as follows: -
"We are of the opinion that even assuming that the counsel for the
accused does not appear because of the counsel's negligence or
deliberately, even then the Court should not decide a criminal case
against the accused in the absence of his counsel since an accused in
a criminal case should not suffer for the fault of his counsel and in
such a situation the Court should appoint another counsel as amicus
curiae to defend the accused. This is because liberty of a person is the
most important feature of our Constitution. Article 21 which
guarantees protection of life and personal liberty is the most
important fundamental right of the fundamental rights guaranteed
by the Constitution. Article 21 can be said to be the 'heart and soul'
of the fundamental rights."
11.Considering the aforesaid facts and circumstances and on the
limited point as aforesaid, the impugned judgment dated
23.05.2012 passed in Criminal Appeal No. 161 of 2008 which has
been passed by the learned appellate court without hearing the
appellant /petitioner , is hereby set-aside .
12.The matter is remanded back to the learned appellate court,
namely, Principal Sessions Judge, East Singhbhum, Jamshedpur,
for fresh consideration of Cr. Appeal No. 161/2008 after giving
an opportunity of hearing to the petitioner as well as to the State.
The parties are directed to appear before the court of learned
Principal Sessions Judge, East Singhbhum, Jamshedpur, through
their respective counsels on 13.09.2021 and argue their respective
cases. The learned Appellate court is directed to expeditiously
dispose of the appeal on its own merits within a period of one
month thereafter.
13.Office is directed to immediately send back the lower court
records to the learned appellate court, namely, Principal Sessions
Judge, East Singhbhum, Jamshedpur.
14.Let this order be communicated to the learned trial court as well
as the learned appellate court concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Binit/
