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2019 DIGILAW 349 (AP)

Ganimineni Madhu v. Sakhamuri Rangaiah Chowdary

2019-11-29

CHEEKATI MANAVENDRANATH ROY

body2019
ORDER : Cheekati Manavendranath Roy, J. Assailing the Order, dated 20-11-2018, passed in Criminal Appeal No.27 of 2016 on the file of V Additional District and Sessions Judge, Tirupati, whereby the Criminal Appeal was dismissed for default owing to the absence of the appellant, this Criminal Revision Case is preferred. 2. The facts of the case lie in a narrow compass and may be stated as follows: The Revision Petitioner is the Accused in C.C.No.99 of 2014 on the file of IV Additional Judicial Magistrate of First Class, Tirupati. The said case relates to a complaint filed by the complainant therein, who is respondent No.1 herein, under Section 138 of Negotiable Instrument Act, for dishonour of the cheque issued by the petitioner. At the culmination of the trial in the trial Court, the petitioner was found guilty for the offence punishable under Section 138 NI Act and he was convicted for the said offence and he was sentenced to undergo Simple Imprisonment for a period of Six months and to pay a fine of Rs.5,000/-, in default, to undergo SI for one month. 3. Aggrieved thereby, he has preferred Criminal Appeal No.27 of 2016 on the file of V Additional District and Sessions Court, Tirupati. When the said appeal was coming on for hearing and when the same stood posted to 20-11-2018 for hearing, it appears that the Appellant was called absent on that day and that there was also no representation on his behalf. Since the first respondent was present on that day, the learned V Additional District & Sessions Judge, Tirupati, by the impugned order dismissed the said appeal for default. 4. Aggrieved thereby, the revision Petitioner, who is the appellant in Criminal Appeal No. 27 of 2016, preferred the instant revision questioning the legality and validity of the impugned Order. 5. Heard learned counsel for the Petitioner and the learned counsel for Respondent No.1 and the learned Assistant Public Prosecutor. 6. Learned counsel for the Petitioner would submit that the lower Court record is not received in the Appellate Court. Therefore, even if the Appellant is present on the said day, the appeal could not be heard. So, instead of adjourning the appeal for want of lower Court record, the learned Sessions Judge erroneously dismissed the appeal for default. Therefore, he would pray to allow the revision and set aside the impugned Order. 7. Therefore, even if the Appellant is present on the said day, the appeal could not be heard. So, instead of adjourning the appeal for want of lower Court record, the learned Sessions Judge erroneously dismissed the appeal for default. Therefore, he would pray to allow the revision and set aside the impugned Order. 7. Sri O. Udaya Kumar, learned counsel Respondent No.1, would submit that in spite of granting several adjournments, the Appellant did not turn up for hearing and even after imposing costs also, he did not turn up for hearing and he also did not pay the costs. Therefore, in the said facts and circumstances of the case, the learned Sessions Judge dismissed the appeal for default as the Petitioner is not evincing any interest to pursue the said appeal. So, he contends that there is no illegality in passing the impugned order. Therefore, he would pray for dismissal of the Revision Case. 8. As noticed supra, while narrating the facts of the Revision Case, aggrieved by the Judgment of the conviction and sentence imposed against the Petitioner in C.C.No.99 of 2014 on the file of IV Additional Judicial Magistrate of First Class, Tirupati, he has preferred the appeal in Criminal Appeal No.27 of 2016 before the learned V Additional District & Sessions Judge, Tirupati. It appears from the record that as the Appellant is not turning up for hearing in the said appeal that costs were imposed against him and the appeal stood posted to 20-11-2018 for hearing on payment of costs. On that day also, the Appellant did not appear before the Appellate court. He was called absent and he also did not pay the costs and there was also no representation on his behalf. Therefore, the learned V Additional District & Sessions Judge, Tirupati, passed the following Order and dismissed the said appeal for default. The Order reads thus: “Respondent is present. Appellant is called absent. Costs not paid. No representation to the Appellant since long time. Hence, the appeal is dismissed for default.” 9. Thus, as can be seen from the aforesaid impugned Order, it is clear that the learned V Additional District & Sessions Judge, Tiupati, dismissed the criminal appeal for default on account of the absence of the Appellant on the date of hearing and for non payment of costs and as there was no representation on behalf of the appellant. Thus, as can be seen from the aforesaid impugned Order, it is clear that the learned V Additional District & Sessions Judge, Tiupati, dismissed the criminal appeal for default on account of the absence of the Appellant on the date of hearing and for non payment of costs and as there was no representation on behalf of the appellant. The said Order dismissing the Criminal Appeal for default is clearly unsustainable under law. There is no provision in the Criminal Procedure Code contemplating dismissal of the Criminal Appeals or Criminal Revision Cases for default owing to absence of the Appellant or the Revision Petitioner in Criminal Appeals and Criminal Revision Cases. Even if the Appellant fails to turn up for hearing in spite of granting several adjournments and in spite of imposing costs, criminal appeals cannot be dismissed for default. The relevant provisions in the scheme of the Criminal Procedure Code to consider in this context are Sections 385 and 386 of Cr.P.C., and they read thus: “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) .... .... .... (iii) .... .... .... (iv) .... .... .... (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) .... .... ....” “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 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 – xxxx xxxx xxxx xxxx xxxx xxxx" 10. A careful reading of Section 385(2) Cr.P.C. makes it manifest that if the Appellate Court does not dismiss the appeal summarily, it ‘shall’, after issuing notice as required by sub-section (1) thereof, send for the record of the case and hear the parties. A careful reading of Section 385(2) Cr.P.C. makes it manifest that if the Appellate Court does not dismiss the appeal summarily, it ‘shall’, after issuing notice as required by sub-section (1) thereof, send for the record of the case and hear the parties. The proviso, however, states that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. Therefore, on a plain reading of the aforesaid provision, it is clear that once the Appellate Court, after examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally. There is no provision in the scheme of the Code which enables the Court to dismiss the Criminal Appeal for default owing to absence of the appellant or his pleader. The legal position in this regard is not res integra and the same has been well settled. 11. The three judge bench of the Supreme Court in the case of Bani Singh v. State of Uttar Pradesh AIR 1996 SC 2439 held that dismissal of appeal simplicitor for non-prosecution is not contemplated under the Criminal Procedure Code and when both the appellant and his lawyer are absent on the appointed day for hearing, Court is not bound to adjourn the case but should dispose of the appeal on merits. 12. In the above referred three-Judge Bench judgment of the Apex Court, the Apex Court held that obviously, the requirement to send for the record under Section 385(2) Cr.P.C. is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that “after perusing such record” the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This becomes clear from the opening words of Section 386 which say that “after perusing such record” the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued, the accused or his pleader, if he appears, must be heard. 13. In the case of Nisha Sharma v. Vinod Kumar Sharma1990 Cri.L.J. (NOC 57) Delhi 25, it was held that the Court should decide the revision on merits on the basis of record instead of dismissing it for default. 14. Thus, from the ratio laid down in the aforesaid judgments, the legal position is clear that there is no provision in the Criminal Procedure Code which enables the Courts to dismiss the criminal appeal or criminal revision for default on account of non-appearance of the appellant or his advocate for hearing in the criminal appeal or criminal revision. Therefore, even when the appellant or the revision petitioner and their counsel fails to turn up for hearing in the criminal appeals or criminal revisions inspite of granting several opportunities to them, the Courts cannot dismiss the said criminal appeals or criminal revisions for default. At best the Court can only dispose of the said criminal appeals or criminal revisions on merits as per the material available on record. 15. In important cases involving any complicated questions of law, Courts can also appoint amicus curiae to defend the accused in the said criminal appeals/criminal revisions to assist the Court to dispose of the said criminal appeals/criminal revisions on merits as per the material available on record. 16. In the case of Mohd. Sukur Ali v. State of Assam3 the Apex Court held as follows: “In criminal cases, whether trial, appeal or revision should not be decided against the accused in the absence of his counsel. Liberty of a person is most important feature of our Constitution. Article 21 of the Constitution can be said to be “heart and soul” of the Fundamental Rights. It is only a lawyer who is conversant with law who can properly defend the accused in a criminal case. Liberty of a person is most important feature of our Constitution. Article 21 of the Constitution can be said to be “heart and soul” of the Fundamental Rights. It is only a lawyer who is conversant with law who can properly defend the accused in a criminal case. Therefore, criminal case cannot be decided in the absence of counsel. As such, even if the counsel for the accused does not appear because of his negligence or deliberately, even then the Courts should not decide the criminal case against the accused in the absence of his counsel since the accused should not suffer for the fault of his counsel. In such a situation, the Courts should appoint another counsel as amicus curiae to defend the accused and proceed with the hearing of the accused by counsel appointed as amicus curiae.” 17. Therefore, faced with the situation where the appellants or the revision petitioners in criminal cases or criminal revision petitions fail to appear for hearing in the said cases inspite of providing several opportunities to them, the Courts have two options–-either to dispose of the criminal appeals or criminal revisions on merits on the basis of the material available on record or in case of necessity, where complicated questions of law are involved, to appoint amicus curiae to defend the accused and then dispose of the said cases according to law. 18. Although in the above judgment of the two-Judge Bench of the Apex Court in Mohd. Sukur Ali 2011 Cri.L.J. 1690 , it is stated that the Court has to appoint another counsel as amicus curiae to defend the accused and proceed with the hearing of the accused by counsel appointed as amicus curiae, the judgment in Bani Singh1 of the Apex Court, which is a three-Judge Bench judgment, prevails. As it is held in the said judgment by the three-Judge Bench of the Apex Court that the appeal is to be decided by the Court on merits as per the material available on record, in the considered view of this Court, appointment of amicus curiae is not an indispensable requirement to dispose of the appeal of the accused. As it is held in the said judgment by the three-Judge Bench of the Apex Court that the appeal is to be decided by the Court on merits as per the material available on record, in the considered view of this Court, appointment of amicus curiae is not an indispensable requirement to dispose of the appeal of the accused. So, the court can either dispose of the appeal on merits as per the material available on record or if the Court thinks fit to appoint an amicus curiae, if any important and complicated questions of law and fact are involved, it has the option to appoint an amicus curiae to argue the appeal on behalf of the appellant. 19. Therefore, to sum-up, in view of the law laid down by the three-Judge Bench judgment in Bani Singh , it is held that Criminal Appeal cannot be dismissed for default if the appellant fails to turn up for the hearing in spite of granting several opportunities and even if the advocate fails to attend the Court, the Court has to dispose of the said appeal on merits on the basis of the material available on record. 20. In view of the above settled legal position, the impugned order dismissing the Criminal Appeal for default is erroneous and clearly unsustainable under law. 21. In the result, the Criminal Revision Case is allowed. The impugned order dated 20.11.2018 dismissing the Criminal Appeal No.27 of 2016 for default is set aside. The learned V Additional District and Sessions Judge, Tirupati, is directed to dispose of the Criminal Appeal according to law.