Veerakumar vs The State
2022 Latest Caselaw 18206 Mad

                                                                             Crl.R.C.(MD)No.1250 of 2022


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATE : 16.12.2022

                                                        CORAM:

                          THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                           Crl.R.C.(MD)No.1250 of 2022

                     Veerakumar                              ... Petitioner/Appellant/Accused
                                                            Vs.
                     The State
                     Rep. by Inspector of Police,
                     Taluk Police Station,
                     Pattukkottai,
                     Crime No.439 of 2006.                ... Respondent/Respondent/Complainant


                     PRAYER: Criminal Revision Petition is filed under Section 397 r/w 401 of
                     Cr.P.C., to call for the records relating to the Judgment dated 28.10.2022
                     made in Crl.A.No.112 of 2018 on the file of the 3 rd Additional District
                     Judge, Thanjavur @ Pattukkottai, by confirming the conviction made in
                     C.C.No.470 of 2007 on the file of the Judicial Magistrate, Pattukkottai,
                     Thanjavur District, dated 03.09.218 and set aside the same as illegal.
                                  For Petitioner            : Mr..D.Rameshkumar
                                                              for M/s.S.Prabha

                                  For Respondent            : Mr.B.Nambiselvan
                                                             Additional Public Prosecutor

                     1/14


https://www.mhc.tn.gov.in/judis
                                                                                 Crl.R.C.(MD)No.1250 of 2022


                                                            ORDER

This Criminal Revision Petition has been filed by the

petitioner/accused against the order of dismissal of appeal for default dated

28.10.2022 in Crl.A.No.112 of 2018 by the learned 3rd Additional District

Judge, Thanjavur @ Pattukkottai by confirming the conviction made in

C.C.No.470 of 2007 on the file of the Judicial Magistrate, Pattukkottai,

Thanjavur District, dated 03.09.218.

2.The case of the prosecution is that the petitioner is an accused in

C.C.No.470 of 2007 filed by the respondent for the offences under Sections

341, 326 and 506(2) IPC. The trial Court had found the petitioner/accused

guilty and convicted him to undergo Rigorous Imprisonment for a period of

two years for the offence under Section 326 IPC and to undergo one year

Rigorous Imprisonment for the offence under Section 506(2) IPC and to pay

a fine of Rs.1000/- for each offence and in default to undergo Simple

Imprisonment for a period of two weeks.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

3.Against the Judgment of conviction and sentence passed by the trial

Court in C.C.No.470 of 2007, the petitioner/accused had filed Crl.A.No.112

of 2018, before the learned 3rd Additional District Judge, Thanjavur @

Pattukottai. The appeal was taken on file admitted and notice was ordered to

the respondent/complainant and the matter had been posted on 28.10.2022.

The petitioner/accused as well as his Advocate did not appear before the

Court and the Appellate Court finding that the criminal appeal is pending

from the year 2018 for arguments and that the respondent/complainant was

ready for arguments, had dismissed the appeal for non-prosecution. Against

the order of dismissal of the appeal, the present revision has been filed.

4.This Court heard the submissions of the learned counsel for the

petitioner and perused the materials available on record.

5. It is seen from the order that the criminal appeal has not been

decided on merits and the appeal has been dismissed for default. The

present revision has been filed against the dismissal of the criminal appeal

for default.

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6. The learned counsel for the revision petitioner would submit that

once a criminal appeal is admitted, it cannot be dismissed for default.

Hence, the dismissal of the criminal appeal for default by the Appellate

court is wrong and has to be set-aside. He would submit that the plain

language of Section 385 of Cr.P.C., makes it clear that the disposal of the

criminal appeal can be only on merits, after perusal and scrutiny of the

records.

7. The learned counsel would further submit that the Court should not

decide a criminal case against the accused even 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 situation, the Court should appoint another learned

counsel as Amicus Curiae to defend the accused.

8. Now the question to be considered is as to whether the dismissal of

the appeal for default is correct. In this context, it is apposite to refer and

analyse the provisions of Sections 385 and 386 of Cr.P.C., which are

extracted hereunder:-

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

"Sec. 385: Procedure for hearing appeals not dismissed

summarily:-

(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given :-

i) to the appellant or his pleader;

ii) to such officer as the State Government may appoint in this behalf;

iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

iv) if the appeal is under Section 377 or Section 378, to the accused and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal (2) The Appellate Court shall then send for the record of the case, if such record, is not already available in that Court and hear the parties; Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground".

"Sec. 386: Powers of the Appellate Court :- After perusing such record and

hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

appears, and in case of an appeal under Section 377 or Section 378, the accused, if

he appears, the Appellate Court may, if it considers that there is no sufficient

ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction -

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence -

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement;

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal".

9.The plain language of Section 385 makes it clear that if the

Appellate court does not dismiss the appeal summarily, it must call for the

record from the lower Court. Section 386 IPC mandates that after the record

is received, after hearing the appellant or his pleader, if he appears and the

Public Prosecutor, if he appears, the appellate court may dismiss the appeal

or dispose of the appeal as provided under Section 386 (b) Cr.P.C. Thus, the

plain language of Sections 385 and 386 Cr.P.C. does not contemplate

disposal of the appeal for non-prosecution simplicitor. Thus, it is clear from

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

the above provisions that the law envisages the disposal of the appeal only

on merits after perusal and scrutiny of the records.

10. The Apex Court in Parasuram Patel and Another v. State of Orissa

reported in [(1994) 4 SCC 664] has held that no criminal appeal can be

dismissed on the ground of default in appearance and the court has to go

through the record of the case even in the absence of the appellants or their

counsel and decide the matter on merit.

11.In a later decision in Bani Singh and Others v. State of Uttar

Pradesh reported in [AIR 1996 SC2439] a three-Judge Bench of the Hon'ble

Apex Court held that:-

"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 crosschecking 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".

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

12.It has been further held that :-

"The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so".

13.The Hon'ble Apex Court in the above judgment had referred to the

scheme of the Code, especially, to Section 384 – 386 of Cr.P.C. and

observed that if the appeal is already admitted, Section 384 of Cr.P.C.,

which enables the Court to summarily dismiss the appeal is not applicable.

14.Further, the Apex Court in a later decision in Rishi Nandan Pandit

and Others v. State of Bihar reported in [(1999) 8 SCC 644] has held that

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

when the counsel engaged by the appellant in a criminal appeal does not

turn up, there is no obligation on the Court of appeal to wait for him or even

to adjourn the case awaiting his presence and the Court can dispose of the

appeal on merits after perusing the records.

15.It has been further held that:-

"As a matter of legal position, the Court is not precluded from perusing the records and come to its own conclusion unaided by any legal practitioner to project the points favourable to the accused, when the counsel engaged by them does not turn up to argue. But the three- Judge Bench of this Court indicated in Bani Singh v. State of Uttar Pradesh, that it is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the State's expense to argue for the cause of the accused. Of course, it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could not be disposed of unassisted by counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range, it is advisable to seek the assistance of a legal talent".

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

16.Later the Apex Court in Md. Sukur Ali v. State of Assam [AIR

2011 SC 1222] has held thus:-

"22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as Amicus Curiae and decide the case after fixing another date and hearing him".

17.The law culled out from the above discussion is that the High

Court or the Appellate Court, cannot dismiss the appeal for default or for

non-prosecution, without examining the case on merits. Though the court is

not bound to adjourn the matter if the appellant or his counsel is absent, the

Appellate Court can dispose of the appeal on merits after perusing the

records and judgment of the Trial court without appointing any learned

counsel as Amicus Curiae. If the accused is in jail, it would be proper for

the Appellate Court, to adjourn the case and fix the date for facilitating the

appearance of the accused and if his lawyer is not present and if the lawyer

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

is absent, the appellate court should deem it appropriate to appoint a lawyer

for the appellant and nothing in law prevents the Court from doing so.

18.In the present case, it is seen that the appeal has not been disposed

of by the Appellate Court on merits and it has been dismissed for default. In

view of the propositions of law discussed above this Court finds that the

judgement of the Appellate Court is erroneous and thereby the same is liable

to be set-aside.

19.In the result, the present Criminal Revision stands allowed and the

order passed by the learned 3rd Additional District Judge, Thanjavur @

Pattukottai in Crl.A.No.112 of 2018, dated 28.10.2022, is set aside and the

matter is remanded back to the Appellate Court for fresh disposal of the

appeal in accordance with law, as expeditiously as possible. The

appellant/revision petitioner is directed to appear before the Appellate Court

along with his Advocate on 05.01.2023, without further notice and execute

a fresh bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two

sureties each for a like sum and also file an affidavit of undertaking that the

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

appeal will be argued by his counsel on the date fixed by the Appellate

Court and the Appellate Court shall hear the parties and deliver Judgment

on merits within a period of three weeks from thereof.

16.12.2022 Index : Yes/No Internet:Yes/No sji

To

1.The 3rd Additional District Judge, Thanjavur @ Pattukkottai.

2.The Judicial Magistrate, Pattukkottai, Thanjavur District.

3.The Inspector of Police, Taluk Police Station, Pattukkottai.

4.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.

5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.1250 of 2022

A.D.JAGADISH CHANDIRA, J.

sji

Crl.R.C.(MD)No.1250 of 2022

16.12.2022

https://www.mhc.tn.gov.in/judis