Appeal Against Conviction Can't Be Dismissed Merely Because Party Or Counsel Is Absent, Must Be Adjudicated On Merits: AP High Court
The Andhra Pradesh High Court has held that the absence of the appellant or his counsel is not a ground to dismiss a criminal appeal against conviction for non-prosecution, observing that the appellate court must decide the appeal on merits after examining the record. [2026 LiveLaw (AP) 117]
Justice Dr. Venkata Jyothirmai Pratapa allowed a criminal revision petition filed by a convict in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881, setting aside the appellate court's order dismissing his criminal appeal for non-prosecution.
The Court observed:
"It is pertinent to note that, in view of the aforesaid settled principles of law, a criminal appeal cannot be dismissed for default or for want of prosecution merely on account of the absence of the Appellant–Accused or his learned counsel. The appellate court is under an obligation to adjudicate and dispose of the appeal on its merits after due consideration of the material available on record...
Be that as it may, even assuming that neither the Appellant nor his counsel was present, the Appellate Court could not have dismissed the appeal for default. The only course open to the Appellate Court was either to adjourn the matter or to dispose of the appeal on merits in accordance with law. Since the impugned order suffers from a legal infirmity and is in direct contravention of the settled principles governing disposal of criminal appeals, this Court is of the considered view that the same cannot be sustained."
The petitioner had been convicted by the trial court for an offence under Section 138 read with Section 142 of the Negotiable Instruments Act and sentenced to one year's simple imprisonment along with a fine of Rs.7.90 lakh. He preferred a criminal appeal against the conviction, which was subsequently dismissed for non-prosecution.
The appellate court dismissed the appeal on the ground that the appellant had remained absent despite the pendency of a bailable warrant and had failed to prosecute the appeal.
Before the High Court, the petitioner contended that the dismissal order was legally unsustainable as his counsel had appeared before the appellate court and sought a pass over owing to bona fide circumstances. He further argued that, in any event, a criminal appeal against conviction could not be dismissed merely because of the appellant's absence.
Examining the impugned order, the High Court found that its preamble itself recorded the presence of the petitioner's counsel, making the subsequent observation that the appeal stood dismissed for non-prosecution self-contradictory and legally unsustainable. It held that “once the appearance of counsel had been acknowledged, the appeal could not be treated as unrepresented”.
The High Court observed that an appeal against conviction under Section 374 CrPC (now Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is a statutory right and, once admitted, cannot be dismissed for default. Even in the absence of the appellant or counsel, the appellate court must either adjourn the matter or decide the appeal on merits after examining the record.
Holding the impugned order to be legally unsustainable, the High Court restored the appeal and directed the appellate court to decide it afresh on merits, after hearing both parties, preferably within two months.
Case Title: Badeti Sridhar v. State of Andhra Pradesh & Another
Case No.: Criminal Revision Case No. 502 of 2026
Counsel for the Petitioner: Venkata Narayana Rao Vedula
Counsel for the Respondents: K. Priyanka Lakshmi, Assistant Public Prosecutor