Criminal Appeal Can't Be Dismissed For Default; Court Obliged To Appoint Amicus Curiae If Accused Unrepresented: Allahabad HC 

A bench of Justice Abdul Shahid observed that the dismissal of a criminal appeal in default on account of the absence of counsel for the appellant-accused is against the mandate of Section 425 BNSS (Section 384 CrPC).

Briefly put, the Court was hearing a criminal revision petition filed by one Sanjay Yadav, who had been convicted under Section 138 of the Negotiable Instruments Act (cheque bounce case) by the Additional Chief Judicial Magistrate, Gorakhpur, in May 2022.

Against the order of conviction, he moved a statutory criminal appeal within the limitation period before the Sessions Court. However, in October 2023, the same was dismissed in default for non-appearance of the appellant's counsel.

Subsequently, the revisionist filed another criminal appeal, along with an application under Section 5 of the Limitation Act, seeking to set aside the October 2023 order and to condone the delay in filing the appeal after eight months.

This application was also rejected by the Special Judge (S.C./S.T. Act), Gorakhpur, in September last year. Hence, he moved the present criminal revision.

At the outset, the bench referred to Section 425 of the BNSS to note that the appellant court is not empowered to dismiss an appeal solely on the ground of the advocate's absence.

The High Court placed heavy reliance on the Supreme Court's judgment in K. Muruganandam & Ors. v. State Rep. by the Superintendent of Police (2021), wherein it was held that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused.

Further, the bench noted that there was no legal necessity for the revisionist to file a second criminal appeal, as the first appeal had already been filed within the limitation period.

The Court added that the first appeal could only be decided on its merits and not dismissed for default. Consequently, the High Court set aside the order dated October 26, 2023, which had dismissed the original appeal in default.

The Court directed the appellate court to decide the restored appeal on merits as expeditiously as possible.