Himachal Pradesh High Court
Ram Lal vs Narender Kumar Ghoonta on 28 July, 2025
( 2025:HHC:24438 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 690 of 2024 .
Reserved on : 17.07.2025
Date of Decision: 28.07.2025
Ram Lal .... Petitioner
Versus
Narender Kumar Ghoonta ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? 1 Yes For the petitioner : Mr. Pawan Chauhan, Advocate, vice Mr. Vishva Vijay Singh, Advocate.
For the respondent : Mr. Vikrant, Advocate, vice Mr.
Narender Singh Thakur,
Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition against the judgment dated 14.08.2024 passed by learned Sessions Judge, Shimla (learned appellate Court), vide which the judgment of conviction dated 02.04.2024 and order of sentence dated 29.04.2024 passed by learned Judicial Magistrate First Class, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/07/2025 21:24:37 :::CIS 2( 2025:HHC:24438 ) Chopal, District Shimla (learned Appellate Court) were upheld.
(Parties shall hereinafter be referred to in the same manner as they .
were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present petition are that the complainant presented a complaint against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short "NI Act"). It was asserted that the accused obtained a loan of ₹ 3 lakh for land development. He promised to pay the loan in instalments but failed to do so. He issued a cheque of ₹78,900/-
to discharge his legal liability. The complainant presented the cheque to the Bank for realisation, but it was dishonoured with remarks "insufficient funds". The complainant issued a notice to the accused asking him to repay the amount within 15 days of the receipt of the notice. The notice was duly served upon the accused, but the accused failed to repay the amount. Hence, the complaint was filed against the accused for taking action as per the law.
3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 3 ( 2025:HHC:24438 ) punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.
.
4. The complainant examined Narender Kumar CW-1 to prove its case.
5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he had taken a loan of ₹3 lakhs. He admitted that he had executed various documents in favour of the Bank, and he had failed to pay the instalments to the Bank.
He admitted that he had issued a cheque but claimed that he had issued a blank cheque. He admitted that the cheque was dishonoured with remarks "insufficient funds". He stated that he was innocent. He did not produce any evidence despite having been granted various opportunities, and his evidence was closed by the order of the Court on 06.02.2024.
6. Learned Trial Court held that the accused admitted the taking of the loan. He admitted that he had issued a cheque in favour of the Bank. A presumption arose that the cheque was issued in discharge of the legal liability, and the burden is upon the accused to rebut this presumption. He failed to prove that he had repaid the amount to the Bank. The cheque was dishonoured with remarks "insufficient funds". A notice was served upon the ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 4 ( 2025:HHC:24438 ) accused, and he had failed to repay the amount despite the receipt of the notice of demand. All the ingredients of the .
commission of an offence punishable under Section 138 of the NI Act were duly satisfied. Hence, the learned Trial Court convicted the accused of the commission of an offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for two months, pay a compensation of ₹1 lakh and undergo further simple imprisonment for one month in default of payment of compensation.
7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Sessions Judge, Shimla (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by learned Trial Court that the accused had failed to rebut the presumption attached to the cheque. The cheque was dishonoured with remarks "insufficient funds". The notice was duly served upon the accused, and the accused failed to repay the amount despite the receipt of a valid notice of demand; therefore, he was rightly convicted and sentenced by the learned Trial Court. Accordingly, the appeal was dismissed.
::: Downloaded on - 28/07/2025 21:24:37 :::CIS 5( 2025:HHC:24438 )
8. Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present .
revision asserting that the learned Courts below erred in appreciating the evidence. The complainant had failed to prove its case beyond a reasonable doubt, and the plea taken by the accused that a blank cheque was issued was highly probable;
therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.
9. I have heard Mr. Pawan Chauhan, learned counsel representing the petitioner and Mr. Vikrant, learned counsel representing the respondent.
10. Mr. Pawan Chauhan, learned counsel representing the petitioner, submitted that the learned Appellate Court had passed the judgment in the absence of the petitioner/accused, and adequate opportunity was not granted to him to present his version before the Court. Learned Appellate Court should have appointed a Legal Aid Counsel to represent the petitioner/accused, and it had erred in deciding the matter in the absence of the parties. He prayed that the present revision be ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 6 ( 2025:HHC:24438 ) allowed and the judgment passed by the learned Appellate Court be set aside.
.
11. Mr. Vikrant, learned counsel representing the respondent/complainant, submitted that the matter was listed on 09.08.2024, and the learned counsel for the petitioner/accused was not present despite knowledge; hence, the learned Appellate Court was justified in proceeding with the matter after perusing the record. Therefore, he prayed that the present petition be dismissed.
12. I have given considerable thought to the submissions made at the bar and have gone through the record carefully.
13. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court does not exercise an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: -
"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise jurisdiction like the appellate court, and the scope of interference in revision is ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 7 ( 2025:HHC:24438 ) extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction to satisfy itself or himself as to the correctness, legality, or propriety of any finding, sentence, or .
order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.
14. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695:
14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.
15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 8 ( 2025:HHC:24438 ) of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, .
which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under CrPC."
16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 9 ( 2025:HHC:24438 ) charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 :
(2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) .
"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.::: Downloaded on - 28/07/2025 21:24:37 :::CIS 10
( 2025:HHC:24438 ) 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing .
of charge or quashing of charge.
*** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
*** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie."
17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.
15. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695:
::: Downloaded on - 28/07/2025 21:24:37 :::CIS 11( 2025:HHC:24438 )
14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself .
as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.
15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) "12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 12 ( 2025:HHC:24438 ) very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in .
mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under CrPC."
16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 :
(2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) "27. Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 13 ( 2025:HHC:24438 ) 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits to the powers of .
the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere.
27.3. The High Court should not unduly interfere.
No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
*** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
*** ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 14 ( 2025:HHC:24438 ) 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation .
of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie."
17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statement of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.
16. It was held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to reappreciate the evidence and come to its conclusions in the absence of any perversity. It was observed on page 169:
"12. This Court has time and again examined the scope of Sections 397/401 CrPC and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275], while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para
5) "5. ... In its revisional jurisdiction, the High Court can call for and examine the record of any ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 15 ( 2025:HHC:24438 ) proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High .
Court for correcting a miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ..."
13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material; the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135) "14. ... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-
consideration of any relevant material or there is ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 16 ( 2025:HHC:24438 ) palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an .
appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the rmaterial facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction."
14. In the above case, also conviction of the accused was recorded, and the High Court set aside [Dattatray Gulabrao Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom 1753] the order of conviction by substituting its view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views, and that too without any legal basis.
17. This position was reiterated in Bir Singh v.
Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40:
(2019) 2 SCC (Civ) 309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
"16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 17 ( 2025:HHC:24438 ) factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
17. As held by this Court in Southern Sales & .
Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457], it is a well- established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative."
18. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
19. A perusal of the record of the learned Appellate Court shows that the notice was issued to the respondent returnable for 09.08.2024. The record of learned Trial Court was also requisitioned for the day fixed. Learned Appellate Court noticed on 09.08.2024 that none was present. The notice issued to the Branch Manager, HP State Cooperative Agricultural and Rural Development Bank was served, but no one was present. Therefore, the Court proceeded to decide the matter on merits, and listed the matter for order on 14.08.2024, on which day the appeal was dismissed.
20. The procedure adopted by the learned Appellate Court is contrary to law. Learned Appellate Court failed to ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 18 ( 2025:HHC:24438 ) notice that the matter was not listed for argument on 09.08.2024, but merely for the presence of the respondent .
and for receipt of the record. Therefore, it could not have proceeded to decide the matter in the absence of the accused/appellant or his learned counsel. The accused/appellant had no notice that the matter would be heard on 09.08.2024, and learned Appellate Court violated the principle of natural justice by reserving the matter on the day when it was not listed for the argument. The accused/appellant could have been faulted for his absence if the matter was listed for arguments, because then it could have been presumed that he had nothing to say despite knowledge that the matter was listed for arguments. Hence, the judgment passed by the learned Appellate Court is liable to be set aside on this short ground alone.
21. It was laid down by Hon'ble Supreme Court, Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729, that if the counsel of the accused does not appear, the Court should not decide the case against him in the absence of counsel because the accused should not suffer for the fault ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 19 ( 2025:HHC:24438 ) of the counsel. The Court should appoint an amicus curiae and should hear him. It was observed: -
.
"5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because the liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the "heart and soul" of fundamental rights.
6. In our opinion, a criminal case should not be decided against the accused in the absence of counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama [77 L Ed 158: 287 US 45 (1932)], in which it was observed: (L Ed pp. 170-71) "What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 20 ( 2025:HHC:24438 ) without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his .
defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or Federal Court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."
The above decision of the US Supreme Court was cited with approval by this Court in A.S. Mohammed Raf v. State of T.N. [(2011) 1 SCC 688: (2011) 1 SCC (Cri) 509: AIR 2011 SC 308] vide para 24.
7. A similar view which we are taking here was also taken by this Court in Man Singh v. State of M.P. [(2008) 9 SCC 542: (2008) 3 SCC (Cri) 828] and in Bapu Limbaji Kamble v. State of Maharashtra [(2005) 11 SCC 413 : (2006) 1 SCC (Cri) 778].
8. In this connection, we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under:
"21. Protection of life and personal liberty. --No person shall be deprived of his life or personal liberty except according to procedure established by law.
***
22. Protection against arrest and detention in certain cases. --(1) No person who is arrested ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 21 ( 2025:HHC:24438 ) shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal .
practitioner of his choice." (emphasis supplied)
9. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248: AIR 1978 SCC 597], it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of counsel. It is only a lawyer who is conversant with the law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of counsel, there will be a violation of Article 21 of the Constitution.
10. The right to appear through counsel has existed in England for over three centuries. In ancient Rome, there were great lawyers, e.g. Cicero, Scaevola, Crassus, etc., who defended the accused. In fact, the higher the human race has progressed in civilisation, the clearer and stronger that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials, the Nazi war criminals, responsible for killing millions of people, were provided counsel. Therefore, when we say that the accused should be provided counsel, we are not bringing into existence a new principle but simply recognising what already existed and which civilised people have long enjoyed.
11. Apart from the above, we agree with the eminent jurist Seervai, who has said in his Constitutional Law of India, 3rd Edn., Vol. I, p. 857:
"The right to be defended by counsel does not appear to have been stressed and was clearly not considered in any detail, in Ajaib Singh case [State of Punjab v. Ajaib Singh, (1952) 2 ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 22 ( 2025:HHC:24438 ) SCC 421: AIR 1953 SC 10: 1953 Cri LJ 180: 1953 SCR 254]. But the right of a person accused of an offence, or against whom any proceedings were taken under the CrPC, is a valuable right .
which was recognised by Section 340 CrPC.
Article 22(1), on its language, makes that right a constitutional right, and unless there are compelling reasons, Article 22(1) ought not to be cut down by judicial construction. ... It is submitted that Article 22(1) makes the statutory right under Section 340 CrPC a constitutional right in respect of criminal or quasi-criminal proceedings."
12. We are fully in agreement with Mr Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen the civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for a long period under the formula "Na vakeel, na daleel, na appeal"
(No lawyer, no hearing, no appeal). Many of them were lawyers by profession and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
13. In this connection, we may also refer to the ringing speech of Rt. Hon'ble Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, 7-2-1919 (the Rowlatt Act prohibited counsel to appear for the accused in cases under the Act):
"When the Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent, then, is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays ::: Downloaded on - 28/07/2025 21:24:37 :::CIS 23 ( 2025:HHC:24438 ) his taxes, and salaams all the government officials all around. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who .
addresses a public meeting, then becomes a suspect. I am always on the borderland, and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible Government will be mere mockery....
Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land."
14. In Gideon v. Wainwright [9 L Ed 2d 799: 372 US 335 (1962)], Mr Hugo Black, J. of the US Supreme Court, delivering the unanimous judgment of the Court, observed: (L Ed p. 805) "... lawyers in criminal courts are necessities, not luxuries."
15. In Brewer v. Williams [51 L Ed 2d 424: 430 US 387 (1976)], Mr Stewart, J., delivering the opinion of the US Supreme Court, observed: (L Ed p. 441) "The pressures on state executive and judicial officers charged with the administration of the criminal law are great.... But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all."
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22. A similar view was taken in L. Laxmikanta v. State, (2015) 4 SCC 222, wherein it was observed:-
.
"19. Coming now to the last argument of the learned counsel for the appellant that the appeal should be remanded to the High Court for its rehearing afresh because no one appeared for the appellant in the High Court at the time of the hearing of the appeal, which caused prejudice to the appellant. In our view, the High Court in such circumstances should have appointed any lawyer as amicus curiae on behalf of the appellant to argue the appellant's case instead of proceeding to decide the appeal ex parte on merits. Indeed, in our considered opinion, it was the appropriate course which the High Court should have followed for deciding the appeal finally on merits to meet such eventuality."
23. This position was reiterated in Christopher Raj v. K. Vijayakumar, (2019) 7 SCC 398, wherein it was observed: -
"8. Admittedly, the appellant-accused did not appear in the criminal appeal before the High Court. When the accused has not entered an appearance in the High Court, in our view, the High Court should have issued a second notice to the appellant-accused or the High Court Legal Services Committee to appoint an advocate, or the High Court could have taken the assistance of Amicus Curiae. When the accused was not represented, without appointing any counsel as Amicus Curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits; more so, when the appellant- accused had the benefit of acquittal. The High Court erred in reversing the acquittal without affording any opportunity to the appellant- accused or by appointing an Amicus Curiae to argue the matter on his behalf."::: Downloaded on - 28/07/2025 21:24:37 :::CIS 25
( 2025:HHC:24438 )
24. A similar view was taken in K. Muruganandam v.
State of T.N., (2021) 20 SCC 642, wherein it was observed: -
.
"6. It is well settled 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 (see Kabira v. State of U.P. [Kabira v. State of U.P., 1981 Supp SCC 76: 1982 SCC (Cri) 144] and Mohd. Sukur Ali v. State of Assam [Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729: (2011) 2 SCC (Cri) 481.
25. The Court undoubtedly has the power to go through the record and decide the appeal on merit;
however, when the liberty of the person is involved and the person stood convicted, this course should not have been adopted, especially when legal aid counsel is available in every Court, and learned Sessions Judge is the Chairman of District Legal Services Authority. Further, the matter was not posted for hearing, and the learned Appellate Court should have at least posted the matter for hearing before reserving it for pronouncement of the judgment. Learned Appellate Court had no advantage of hearing anyone on behalf of the accused/appellant, which put him at a serious disadvantage.
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26. In view of the above, the present revision is allowed, and the judgment dated 14.08.2024 passed by .
learned Sessions Judge, Shimla, is set aside and the matter is remanded to the learned Appellate Court to hear the petitioner and decide the matter afresh. It is expressly made clear that in case no representation is made on behalf of the petitioner, the learned Appellate Court would be entitled to appoint Legal Aid Counsel for representation of the petitioner. The parties, through their learned counsel, are directed to appear learned Appellate Court on __August, 2025.
27. The present revision is disposed of, and so are the miscellaneous applications, if any.
(Rakesh Kainthla) Judge 28th July, 2025 (Ritu) ::: Downloaded on - 28/07/2025 21:24:37 :::CIS