Madras High Court
P.Jeymuthu Kumanan vs The State Rep By on 18 August, 2021
Crl.R.C(MD)571 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.RC (MD)No.571 of 2017
P.Jeymuthu Kumanan :
Petitioner
Vs.
The State rep by
The Sub Inspector of Police,
Poovandhi Police Station,
Sivagangai District.
(Crime No.180 of 2008) :
Respondent
PRAYER: The Criminal Revision case is filed under Section 397 r/w 401
of the Code of Criminal Procedure, to set aside the judgment in C.A.No.28
of 2014 dated 09.09.2016 on the file of the Fast Track Mahila Court,
Sivagangai, confirming the judgment passed in C.C.No.35 of 2009 dated
12.06.2014 on the file of the Judicial Magistrate No.II, Sivagangai in Crime
No.180 of 2008 on the file of the respondent police.
1/9
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Crl.R.C(MD)571 of 2017
For Petitioner : Mr.T.Lajapathiroy
For Respondent : Mr.E.Anthony Sahaya Prabahar
Government Advocate (crl.side)
ORDER
The revision petitioner has preferred the present Criminal
Revision Case as against the judgment dated 09.09.2016 passed in C.A.No.
28 of 2014 on the file of the Fast Track Mahila Court, Sivagangai,
confirming the judgment passed in C.C.No.35 of 2009, dated 12.06.2014,
on the file of the Judicial Magistrate No.II, Sivagangai.
2.The learned Sessions Judge, Fast Track Mahila Court,
Sivagangai, while at the time of disposing the criminal appeal in C.A.No.28
of 2014, dated 09.09.2016 has observed as follows:-
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epiyapy; nky;KiwaPl;lhsh; jug;g[f;F thjk; Kd; itf;f nghjpa
mtfhrk; bfhLf;fg;gl;L nky;KiwaPl;lhsnu mtuJ tHf;FiuQnuh
M$uhfhj epiyapy; gpd;dpl;L vjph;nky;KiwaPl;lhsh;
jug;g[ nfl;fg;gl;L Mtzq;fis ghprPypj;J ,d;W ,e;ePjpkd;wk;
tHq;Fk;
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Crl.R.C(MD)571 of 2017
Ultimately, dismissed the appeal, thereby confirmed the judgment rendered
in C.C.No.35 of 2009, dated 12.06.2014, passed by the learned Judicial
Magistrate No.II, Sivagangai.
3.Being dissatisfied with the judgment dated 09.09.2016 in
C.A.No.28 of 2014 passed by the learned Sessions Judge, Fast Track Mahila
Court, Sivagangai, the revision petitioner as an aggrieved person, has
preferred the present Criminal Revision Case before this Court.
4.The learned counsel for the revision petitioner would contend
that before the Appellate Court neither the revision petitioner nor his
counsel had not appeared to address the arguments in the above referred
case. In the said circumstances, it is the duty vested upon the Court to
appoint amicus curie and only after hearing the arguments on behalf of the
appellant, the said appeal has to be necessarily disposed on merits. But in
this case, the said procedure regulated already by the various Courts, has not
been followed and therefore, it is necessary to set aside the judgment dated
09.09.2018 passed in C.A.No.28 of 2014, on the file of the learned Sessions
Judge, Fast Track Mahila Court, Sivagangai.
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Crl.R.C(MD)571 of 2017
5.At this juncture, considering the facts and circumstances of the
case, it would be relevant to see the judgment of our Hon'ble Apex Court
reported in (2013) 2 MLJ (Crl) 80 in the case of K.S.Panduranga Vs State
of Karnataka, wherein it is observed as follows:-
36. In view of the aforesaid annunciation of law, it
can safely be concluded that the dictum in Mohd. Sukur Ali V
State of Assam (supra) to the effect that the Court cannot
decide a criminal appeal in the absence of counsel for the
accused and that too, if the counsel does not appear
deliberately or shows negligence in appearing being contrary to
the ratio laid down by the larger Bench in Bani Singh and
Others V. State of U.P (supra), is per incuriam. We may hasten
to clarify that barring the said aspect, we do not intend to say
anything on the said judgment as far as engagement of amicus
curiae or the decision rendered regard being had to the
obtaining factual matrix therein or the role of the Bar
Association or the lawyers. Thus, the contention of the learned
counsel for the appellant that High Court should not have
decided the appeal on its merits without the presence of the
counsel does not deserve acceptance. That apart, it is
noticeable that after the judgment was dictated in open Court,
the counsel appeared and he was allowed to put forth his
submissions and the same have been dealt with.
37. At this juncture, we are obligated to state that in
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Crl.R.C(MD)571 of 2017
certain cases, this Court had remitted the matters to the High
Court for fresh hearing and in certain cases, the burden has
been taken by this Court. If we allow ourselves to say so, it
depends upon the facts of the each case. In the present case, as
we perceive, the High Court has dealt with all the contentions
raised in the memorandum of appeal and heard the learned
counsel at a later stage and hence, we think it apposite to advert
to the contentions raised by the learned counsel for the
appellant as regards the merits of the case.
6.Further the judgment of this Court reported in (2015) 3 MLJ
(Crl) 253 in the case of D.L.Saleem Ahamed Vs. Evan Paper and Board
(India) Pvt. Ltd., Krishnana Ayyangar rep by S.Seeman-Business Co-
ordinator, Chennai-02, wherein it is observed as follows:-
11.In Surya Baksh Singh Vs State of Uttar Pradesh
(2015) 1 SCC Crl.313 case, the Hon'ble Supreme Court laid
down the guidelines as to the disposal of the criminal appeal,
when the counsel for the appellant was not present. It is not
that when the counsel for the appellant was not present, the
Court cannot dispose of the appeal. The Court can adjourn
the appeal to enable the counsel to appear or without
adjourning the criminal appeal, the Court can dispose of the
criminal appeal, but, after fully referring to the evidence on
record, either it can allow the appeal or dismiss it. But, it
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Crl.R.C(MD)571 of 2017
must dispose of the appeal on merit.
7.The observations made in the above referred cases are very clear
that the Appellate Court has no power to dismiss the appeal, even in the
absence of appellant or appellant's Counsel and in short, the Appellate
Court has no power to dismiss the appeal for default. No doubt the Criminal
Court namely the Appellate Court or a Revisional Court has no power to
dismiss the appeal or revision for default, where counsel for the appellant
had not appeared, then the Court would appoint some advocate as amicus
curiae and determine the appeal on merits. It cannot be brushed aside that
the right of an appeal is a statutory one of an accused especially in a
criminal case, where the issue of conviction and sentence is involved.
Further, in a similar situation while at the time of disposing the criminal
revision case in Crl.RC (MD) No.545 of 2015, dated 06.01.2016, this Court
took the view to set aside the judgment rendered by the First Appellate
Court and remitted back for fresh consideration. Therefore, I am also of the
same opinion that the said finding arrived at by this Court is aptly applicable
to the present case.
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Crl.R.C(MD)571 of 2017
8.In fine, the Criminal Revision Case is allowed. The impugned
judgment dated 09.09.2016 passed in C.A.No.28 of 2014 on the file of the
learned Sessions Judge, Fast Track Mahila Court, Sivagangai, is hereby
set aside by this Court for the reason assigned in this revision. Further,
consequent to the allowing of present criminal revision case, this Court
directs the learned Sessions Judge, Fast Track Mahila Court, Sivagangai, to
restore C.A.No.28 of 2014 to file and to dispose of the same on merits in the
manner known to law and in accordance with law within a period of six
months from the date of receipt of a copy of this order.
18.08.2021
Index : Yes/No
Internet : Yes/No
cp
To:-
1.The Sessions Judge, Fast Track Mahila Court, Sivagangai.
2.The Judicial Magistrate No.II, Sivagangai.
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Crl.R.C(MD)571 of 2017
3.The Sub Inspector of Police,
Poovandhi Police Station,
Sivagangai District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)571 of 2017
R.PONGIAPPAN,J.
cp
Crl.RC (MD)No.571 of 2017
18.08.2021
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