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Criminal Appeal Against Order Of Conviction Cannot Be Dismissed For Default: Reiterates SC [Read Order]

Ashok Kini
10 July 2020 2:02 PM GMT
Criminal Appeal Against Order Of Conviction Cannot Be Dismissed For Default: Reiterates SC [Read Order]

The Supreme Court recently set aside a Madras High Court order that had dismissed a Criminal Appeal against an order of conviction for default.

The bench comprising Justices Rohinton Fali Nariman, Navin Sinha and BR Gavai agreed with the contention put forth by the counsel, relying on the decision of the Supreme Court in K. S. Panduranga v. State of Karnataka (2013) 3 SCC 721, that an appeal against an order of conviction cannot be dismissed in default but must be taken up and decided on merits even if the appellant in-person or the counsel representing him, is not present.

Even though the counsel for the state did not appear, the bench, taking into account the dictum laid down in the above cited case, set aside the High Court order and remanded the matter to be disposed of on merits.

The court, taking note that the accused has been in jail for a period of almost 11 years, also granted him bail subject to the satisfaction of the trial Court.

K. S. Panduranga v. State of Karnataka

In KS Panduranga, the Supreme Court bench comprising of Justices K.S. Radhakrishnan and Dipak Misra summarized the principles laid down in this regard by a three judge bench in Bani Singh and others v. State of U.P 1996 SCC (4) 720 as follows:

(i) that the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining the merits; (ii) that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; (iii) that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (iv) that it can dispose of the appeal after perusing the record and judgment of the trial court; (v) that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.
In the said case, the contention put forth was that the High Court could not have heard the appeal in the absence of the counsel for the accused and proceeded to deliver the judgment. Reliance was placed by the appellant counsel on a two judge bench decision of the Supreme Court in Mohd. Sukur Ali v. State of Assam. The Court observed that the observation in Mohd. Sukur Ali (supra) that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh (supra).
Recent Judgments By SC

Last year, the Supreme Court, in Shankar vs. State of Maharashtra, had observed that, the appeal filed by the accused against the conviction can be disposed of on merits only after hearing the appellant or his counsel. "Where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal. Once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. When the appellant was not represented by the advocate, in our view, the High Court ought not to have decided the matter on merits and the impugned order is liable to be set aside and the matter is remitted back to the High Court.", it was observed by the bench comprising of Justices R. Banumathi and AS Bopanna.

In Christopher Raj vs. K Vijayakumar, the same bench had held that, the High Court, in a criminal appeal, cannot reverse the acquittal without affording any opportunity of hearing to the accused or by appointing an amicus curiae to argue the matter on his behalf if he does not enter appearance.

Case no.: CRIMINAL APPEAL NO. 474/ 2020
Coram: Justices RF Nariman, Navin Sinha and BR Gavai
Counsel: Advocate Thomas Franklin Caesar

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