T. SURYA RAO, J. ( 1 ) THE petitioner assails the order dated 19-01-1999 passed by the learned II additional Sessions Judge, Cuddapah, in criminal Appeal No. 77 of 1997. ( 2 ) THE petitioner is the second appellant in the said appeal. He along with the first appellant filed that appeal assailing the conviction and sentence passed against them by the Munsif Magistrate, Rajampet, in c. C. No. 226 of 1994 by his Judgment dated 04-04-1997. Both the accused were convicted for the offence punishable under section 29 (4) (a) (i) of the Andhra Pradesh forest Act read with Rules 3 and 4 of Sandal wood and Red Sandal (Sic Sanders) Wood transit Rules, 1969, and sentenced to suffer simple imprisonment for six months each and sentenced further to pay a fine of Rs. 500/- each and in default to suffer one month simple imprisonment each. Having been aggrieved by the said conviction and sentence passed against them, they filed the Criminal appeal No. 77 of 1997. ( 3 ) IT appears that for the absence of the petitioner before the appellate Court, a warrant was ordered to be issued against him for his apprehension and the same was pending execution. While things stood thus, learned II Additional Sessions Judge passed the following order in the appeal:"a-1 is called absent, NBW of A-2 returned unexecuted. No representation for the appellants, hence appeal is dismissed confirming the Judgment of the lower court. "as aforesaid, A-2 in the case is assailing the said order. ( 4 ) THE learned II Additional Sessions judge, Cuddapah, has obviously overlooked the provisions in the Code of Criminal procedure ( the Code for brevity) pertaining to the appeals in Chapter XXIX thereof. Coming within the realm of the said Chapter under the caption "appeals" Sections 372 to 378 of the Code are the provisions, which confer the right of appeal in various circumstances. Section 381 is the provision, which provides for the hearing of the appeal either by the Sessions Judge or by the other judges to whom the appeal is made over by the Sessions Judge. Section 382 deals with the form of appeal. Section 383 deals with the procedure in case where the appellant is in jail and files the appeal. Section 384, however, enables the court to dismiss the appeal summarily. Section 382 deals with the form of appeal. Section 383 deals with the procedure in case where the appellant is in jail and files the appeal. Section 384, however, enables the court to dismiss the appeal summarily. It is not a case where the appeal in this case can be said to have been dismissed summarily at the inception. Since that stage has gone and one of the appellants who is appearing through an Advocate, the other section which is germane in the context for consideration is Section 385. This section deals with the procedure for hearing the appeals, which are not dismissed summarily under Section 384. A perusal of the said section shows that the appellate court shall cause notice of time and place at which the appeal would be heard to be given to the appellant or his pleader, and such officer on the side of the State Government, and should send for the record of the case from the lower court, and then hear the parties. Section 386 deals with the power of the appellate Court in hearing the appeals. This section shows that after perusing the record and after hearing the appellant or his pleader, and then the Public Prosecutor, the appellate court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may reverse the order. The provisions contained in Chapter XXVII of the Code pertaining to the Judgment of a Criminal court of original jurisdiction shall apply as far as may be practicable to the Judgment in appeal also before the Court of Session. So the appellate court is expected to formulate the point (s) for its decision and then determine the same with reference to the material on record. There has been no provision in the Code, which enables the court to dismiss the appeal for default on the part of the appellant. ( 5 ) TURNING to the law enunciated by the apex Court on the point, a three-Judge Bench of the Apex Court in Sankatha Singh v. State of uttar Pradesh held in para 7 thus:"a criminal appeal cannot be dismissed for the default of the appellants or their counsel. The court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order. The court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order. " ( 6 ) WHILE referring to the above Judgment, the Apex Court in Shyam Deo Pandey v. State of Bihar in para 19 held thus:"a reading of Section 423 (Sections 385 and 386 of the New Code) makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the state of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the Judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the Public prosecutor, if he appears. After complying with these requirements, the appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the Public Prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the Public prosecutor, or both, are not present, the appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of an merits irrespective of the facts whether the appellant or his counsel or the Public prosecutor is present or not. It is clear that the appeal must be considered and disposed of an merits irrespective of the facts whether the appellant or his counsel or the Public prosecutor is present or not. " ( 7 ) IN Kaili v. State of Uttar Pradesh a two judge Bench of the Apex Court held thus:"it must be remembered by every advocate that he owes a duty to the court, particularly in a criminal case involving the liberty of the citizen, and even if he has not been paid his fees or expenses, he must argue the case and assist the court in reaching the correct decision. . . . . . . . . . . . We think that in a case such as this, what the learned Judge should have done was to appoint an advocate amicus curias and then proceed to dispose of the appeal on merits. " ( 8 ) FOLLOWING the said decision, the Apex court in Kabira v. State of Uttar Pradesh held at the end of para 2 thus:"we are, therefore, of the view that, there has not been a proper disposal of the appeal preferred by the appellant. The appeal could not be dismissed by the learned Judge for default of appearance. If the appellant was not present, the learned Judge should have appointed some advocate as amicus curiae and then proceeded to dispose of the appeal on merits". ( 9 ) THE Judgment of the Apex Court in shyam Deo Pandey v. State of Bihar (referred to 2 supra) was obviously passed far prior to the law making the legal aid as a fundamental right and as a basic human right. The legal position is thus obvious that no criminal appeal can be dismissed for default. ( 10 ) CAN the appeal be disposed of without hearing the appellant and without providing the necessary legal aid if the appellant happens to be an indigent person is the next question to be considered? Section 303 of the code mandates that any person accused of an offence before a Criminal Court may of right be defended by a pleader of his choice. Thus, the right of being heard through a counsel of the choice of the accused is guaranteed to the accused by this section. Section 303 of the code mandates that any person accused of an offence before a Criminal Court may of right be defended by a pleader of his choice. Thus, the right of being heard through a counsel of the choice of the accused is guaranteed to the accused by this section. Section 304 of the Code mandates that in a sessions trial, the court shall assign a pleader for his defence at the expense of the State where it appears to the court that the accused has not sufficient means to engage a pleader. ( 11 ) IN M. H. Hoskot v. State of Maharashtra the Apex Court held thus:"it may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. Of course, it must be recognised that there may be cases involving offences, such as, economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal service may not be provided by the State. "the Apex Court in Hussainara Khatoon s 4th case held thus:"the right to free legal service is therefore clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held to be implicit in the guarantee 6f article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require provided of course the accused person does not object to the provision of such lawyer. "in Hussainara Khatoon s 5th case the Apex court observed thus:"if free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening art. 21 and every State Government should try to avoid such a possible eventuality". "in Hussainara Khatoon s 5th case the Apex court observed thus:"if free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening art. 21 and every State Government should try to avoid such a possible eventuality". In Khatri v. State of Bihar the Apex Court held thus:"the Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the state". ( 12 ) IN Sheela Barse v. State of Maharashtra the Apex Court viewed that legal assistance to a poor or indigent accused who is arrested and deprived of personal liberty is constitutional imperative enjoined not only by Article 39-A but also by Articles 14 and 21 of the Constitution of India. Thus, what was considered to be a fundamental right has now been transformed into a human right. ( 13 ) IN Central Coal Fields v. Jaiswal Coal co. the Apex Court considered the effective access to justice provided for by Article 39-A to be basic human right. ( 14 ) IN Suk Das v. Union Territory of arunachal Pradesh following the Hussainara khatoon s case and M. H. Hoskot s case (referred to 2 supra) the Apex Court held thus:"free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. On the other hand the Magistrate or the Sessions Judge before whom the accused appears is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. The conviction reached without informing the accused that they were entitled to free legal assistance and inquiring from them whether they wanted a lawyer to be provided to them at State cost which resulted in the accused remaining unrepresented by a lawyer in the trial is clearly a violation of the fundamental right of the accused under Article 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity". ( 15 ) IT is obvious that in sequel to the above creative and innovative approach of the Apex court, the Legal Services Act came to be passed by the Union Parliament in the year 1987, which provides for rendering legal aid to the needy and indigent accused in a case or proceeding. Whether the same is extended to appeals also is the next moot question. ( 16 ) IN Akhtari Biv. State of Madhya Pradesh the Apex Court held that the appeal being a statutory right, the trial Court s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is obvious therefore that the hearing of a criminal appeal is nothing but the continuation of trial, of the case When that be the view of the Apex Court that the appeal is nothing but the continuation of the trial, there is no reason as to why an indigent appellant, who preferred an appeal assailing his conviction and sentence passed by the trial court either through the Superintendent of Jail or otherwise, shall not be given free legal aid, which is now a basic human right. ( 17 ) IT has been specifically held by a three Judge bench of the Apex Court in M. H. Hoskot v. State of Maharashtra (referred to 5 supra) thus:"every step that makes the right of appeal fruitful is obligatory and every action inaction which stultifies it is unfair and, ergo, unconstitutional. ( 17 ) IT has been specifically held by a three Judge bench of the Apex Court in M. H. Hoskot v. State of Maharashtra (referred to 5 supra) thus:"every step that makes the right of appeal fruitful is obligatory and every action inaction which stultifies it is unfair and, ergo, unconstitutional. Pertinent to the point are two requirements (i) service of a copy of the judgment to the prisoner in time to file an appeal and (ii) provision of free legal services to a prisoner in time to file an appeal and (iii) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are State responsibilities under Art. 21. Where the procedural law provides for further appeals these requirements will similarly apply". ( 18 ) IN Sheela Barse v. State of Maharashtra (referred to 9 supra) a three-Judge Bench of the Apex Court held at the end of para 1 thus:"it is therefore absolutely essential that legal assistance must be made available to prisoners in jails whether they be under-trial or convicted prisoners". ( 19 ) IN view of these authoritative pronouncements, legal aid which is a basic human right is not confined to a case but also applies equally to the appeals. ( 20 ) A perusal of the impugned order shows that it is nothing but an order passed for the default on the part of both the appellants, more particularly when both of them were not before the Court - one was called absent and as against the other, a warrant had been pending execution for his apprehension. The impugned order, therefore, does not answer the requirements enjoined under Section 386 of the Code. The court below ought to have sent for the record from the trial Court below and ought to have rendered the necessary legal aid if required to the appellants. The impugned order having been passed without any reference to the record of the trial Court and in ignorance of the above legal position cannot, therefore, be sustained under law and is liable to be set aside. ( 21 ) IN the result, the Criminal Revision case is allowed and the impugned order dated 19-01-1999 in Criminal Appeal No. 77 of 1997 is set aside. ( 21 ) IN the result, the Criminal Revision case is allowed and the impugned order dated 19-01-1999 in Criminal Appeal No. 77 of 1997 is set aside. Consequently, the matter is remitted back to the appellate court for fresh consideration in accordance with law.