Kerala High Court
Beena vs State Of Kerala on 8 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
CRL.REV.PET NO. 517 OF 2023
AGAINST THE JUDGMENT DATED 19.01.2023 IN CRA 160/2021 OF
I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM
JUDGMENT DATED 30.11.2021 IN CC NO.723/2011 OF JUDICIAL
MAGISTRATE OF FIRST CLASS-I, NEYYATINKARA
REVISION PETITIONERS/APPELLANTS/ACCUSED 1 & 2:
1 BEENA
AGED 60 YEARS
D/O CELIN, USHUS VEEDU, VARUVILA, PURUTHIVILA,
THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE
NEYYATINKARA, THIRUVANANTHAPURAM, PIN - 695133.
2 AJITH
AGED 64 YEARS
S/O ALOSIUS, USHUS VEEDU, VARUVILA,
PURUTHIVILA, THIRUPURATHOOR DESOM, THIRUPURAM
VILLAGE NEYYATINKARA, THIRUVANANTHAPURAM,
PIN - 695133.
BY ADVS.
R.KRISHNA RAJ
E.S.SONI
KUMARI SANGEETHA S.NAIR
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031.
SMT.SEENA C., PUBLIC PROSECUTOR
2
Crl.R.P.No.517 of 2023
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 08.12.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
Crl.R.P.No.517 of 2023
P.G. AJITHKUMAR, J.
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Crl.R.P.No.517 of 2023
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Dated this the 8th day of December, 2023
ORDER
The petitioners are accused Nos.1 and 2 in C.C.No.723
of 2011 on the files of the Judicial Magistrate of the First
Class-I, Neyyattinkara. They were convicted and sentenced by
the learned Magistrate for the offence punishable under
Section 420 read with Section 34 of the Indian Penal Code,
1860 (IPC). They preferred an appeal challenging the said
conviction and sentence before the Sessions Court,
Thiruvananthapuram. The Additional Sessions Judge-I,
Thiruvananthapuram dismissed the appeal as per the
judgment dated 19.01.2023.
2. The petitioners have filed this Revision Petition
under Section 397 read with Section 401 of the Code of
Criminal Procedure, 1973 (Code) contending that the appeal
was dismissed without hearing them.
3. Heard the learned counsel for the petitioners and
the learned Public Prosecutor.
4. On going through the judgment dated 19.01.2023
of the Appellate Court, it is not possible to understand
whether the petitioners/appellants were heard before
disposing of the appeal. In the preface, it is stated that
Advocates on both sides were heard. The learned Appellate
Judge, however, did not mention in the judgment as to
whether or not the counsel of the appellants was heard. Now,
the learned counsel for the petitioners would submit that the
counsel of the petitioners was not heard as is evident from the
daily status of the appeal available in the e-court site, a copy
of which is produced as Annexure A3. It is seen from
Annexure A3 that on 19.12.2022 when the appeal was taken
up for hearing, there was no representation for the appellants
and the appeal was reserved for disposal and listed to
19.01.2023. The appeal was dismissed as per the impugned
judgment dated 19.01.2023.
5. Ordinarily, what is stated by the Judge in the
judgment has to be accepted. When the Appellate Court does
not indicate in the judgment whether the counsel for the
appellants/petitioners was heard or not, this Court is
constrained to believe the entry in Annexure A3 and to find
that without hearing the learned counsel for the appellants or
any counsel, who was engaged as an Amicus Curiae, the
appeal was dismissed.
6. The Apex Court in Bani Singh v. State of U.P.
[(1996) 4 SCC 720] held that no appeal against conviction
shall be dismissed for default. The Appellate Court can dispose
of the appeal after perusal of the records. The Apex Court in
Murukandan K. and others v. State, represented by the
Deputy Superintendent of Police and another [2021 (5)
KHC 363 (SC)] explained that if the appellant/accused does
not appear through the counsel appointed by him, the court is
obliged to proceed with hearing of the case only after
appointing an Amicus Curiae. The Appellate Court in this case
did not do so. Instead, the Appellate Court after perusing the
records dismissed the appeal. By adopting such a course,
there occurred denial of opportunity to the appellants.
Therefore, the impugned judgment is liable to be set aside
and the Appellate Court is directed to hear the appeal again
after affording an opportunity to the appellants/petitioners
and the Public Prosecutor.
7. Accordingly, this Revision Petition is allowed. The
judgment dated 19.01.2023 of the Additional Sessions
Court-I, Thiruvananthapuram is set aside. The Appellate Court
shall restore Crl.Appeal No.160 of 2021 to file and proceed
with it in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
APPENDIX OF CRL.REV.PET 517/2023
PETITIONER ANNEXURES
ANNEXURE A-1 TRUE COPY OF THE JUDGEMENT IN CC
NO.723/2011 OF THE JFCM I
NEYYATTINKARA DATED 30.11.2021
ANNEXURE A-2 CERTIFIED COPY OF THE JUDGEMENT IN
CRIMINAL APPEAL NO.160/2021 OF THE
ADDITIONAL SESSIONS COURT-I DATED
19.01.2023
ANNEXURE A-3 TRUE COPY OF THE E-COURT SHEET OF
PROCEEDINGS OF THE ADDITIONAL SESSIONS
COURT-I THIRUVANANTHAPURAM DATED
19.12.2022
ANNEXURE A-4 TRUE COPY OF THE PETITION FILED THE
PETITIONERS FOR REVIEW AS CRIMINAL
M.P.NO.366 OF 2023 DATED 03.02.2023
ANNEXURE A-5 CERTIFIED COPY OF THE ORDER IN
CRL.M.P.NO.366/2023 IN CRIMINAL APPEAL
NO.160/2021 OF THE ADDITIONAL SESSIONS
COURT-I, THIRUVANANTHAPURAM DATED
08.02.2023
