A. B. v. State of Bihar — 1990 DIGILAW 361 (PAT)

Judgment This case was on the list on 27.10.90, 29.10.90 and 30.10.90 and thereafter on 1.11.90, 2.11.90, 5.11.90 and 6.11.90 and is even today. On 27.10.90 the Court waited for long for the counsel and while waiting went through the record with the assistance of the learned counsel for the State, but the learned counsel for the appellant did not turn up inspite of the fact that his name is on the record. The case is coming on the list from 29.10.90 till today, on 30.10.90 in the hope that the learned counsel for the appellants may turn up but neither the counsel nor his clerk has appeared. Mr. Gupta learned counsel for the State says that he had personally informed the counsel for the appellant. If the name of the counsel appears in the list, he is expected to attend the case and give out to the Court if he has instruction or not. The Supreme Court in the case of Shyamdeo Pandey vs. State of Bihar ( AIR 1971 S.C. 1606 ) has said that a Criminal Appeal cannot be dismissed for default of an appellant or his counsel and the Court has either to adjourn the hearing of the appeal in order to enable the counsel to appear or consider the appeal on merit and pass final orders, but the consideration on the merit is not possible without testing the reasonings and findings recorded in the judgment under appeal. In the two decisions of Kabira vs. State of U.P. [(1981) Supp S.C.C. 76] and Khaili & ors vs. State of U.P. [(1981) Supp SCC 75]: 1982 SCC (Criminal) 143 their Lordships have been pleased to observe that howsoever diligent the learned Judge may be and howsoever careful and anxious he may be to protect the interest of the appellants in the absence of their counsel, his efforts cannot take place of an argument by an Advocate appearing on behalf of the appellant, so the Court should appoint some one as amicus curiae and dispose of the case on merit. In the latter decision of Ramnaresh Yadav vs. State of Bihar ( AIR 1987 S.C. 1500 ) the Supreme Court said that in Criminal matter the convicts must be heard before his matter is decided on merit. In the latter decision of Ramnaresh Yadav vs. State of Bihar ( AIR 1987 S.C. 1500 ) the Supreme Court said that in Criminal matter the convicts must be heard before his matter is decided on merit. The Court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view, but it can be disposed of on merit only after hearing the appellant or his counsel. The Court might as well appoint a counsel at the State cost to argue on behalf of the appellant. In this case, in view of the pronouncements of the Supreme Court that the counsel is not appearing inspite of the Court waiting for so many days, there is no option for the Court but to issue notice to the appellant as to why his bail may not be cancelled as he had been granted bail to be present in Court when called upon to receive the sentence. His presence through the counsel is accepted here when the counsel is not coming to the Court, the appellant must be present. As such notice may be issued to the appellants as to why his bail application may not be cancelled and he be not taken into custody. He should file a show came as well as must appear in person or through another counsel if he so desires by 14th December, 1990. Let this case be placed on 14th December, 1990. This matter may also be referred to the Bar Council in view of the observation of the Supreme Court.