Kerala High Court
Parthasarathy @ Parthan vs State Of Kerala on 18 September, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 18TH DAY OF SEPTEMBER 2020/27TH BHADRA, 1942
Crl.Rev.Pet.No.1990 OF 2005
AGAINST THE JUDGMENT IN CRA 409/2003 OF ADDITIONAL
SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA
CC 404/2002 DATED 18-10-2003 OF
CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA
REVISION PETITIONER/APPELLANT/ACCUSED:
PARTHASARATHY @ PARTHAN,
S/O.GOPALAKRISHNAN ACHARI,
DEVI NIVAS HOUSE, CHUTTIPPARA,
VALAMCHUZHY MURI, PATHANAMTHITTA.
BY ADV.SRI.S.SUBHASH CHAND
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 STATE OF KERALA,
REPRESENTED BY
THE ADDITIONAL SUB INSPECTOR OF POLICE,
PATHANAMTHITTA.
2 STATE OF KERALA,
REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 14-09-2020, THE COURT ON 18-09-2020 PASSED THE
FOLLOWING:
Crl.R.P.No.1990 of 2005
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[CR]
ORDER
The revision petitioner is the sole accused in C.C.No.404/2002 on the file of the court of the Chief Judicial Magistrate, Pathanamthitta and the appellant in Crl.Appeal No.409/2003 on the file of the Sessions Judge, Pathanamthitta. The revision petitioner was convicted by the learned Magistrate under Section 326 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for thirty days more. The fine amount, if recovered, was directed to be paid as compensation to the de facto complainant (PW2) under Section 357(1) of the Code of Criminal Procedure.
2. On 22.2.2005, the learned Sessions Judge made over the appeal to the Additional Sessions Court (Ad hoc) Crl.R.P.No.1990 of 2005 ..3..
Fast Track-II, Pathanamthitta for hearing and disposal. On 29.04.2005, the appeal stood listed for hearing before the learned Additional Sessions Judge. The learned counsel for the appellant prayed for one month's time to argue the appeal. The learned Additional Sessions Judge allowed the prayer and adjourned the case as last chance to 30.6.2005. However, the associate counsel of the learned counsel for the appellant prayed time for hearing and hence the learned Additional Sessions Judge proceeded to hear the learned Public Prosecutor alone and then dismissed the appeal on merits. Feeling aggrieved, the revision petitioner has, therefore, come up before this Court in revision.
3. The prosecution case, in brief, is that on 06.07.2002 at 9.30 pm., the accused with an intention of causing hurt to PW2, beat PW2 on his left cheek with a piece of firewood causing fracture of bone on the left side Crl.R.P.No.1990 of 2005 ..4..
of his left eye on Kannankara-Valanchuzhi Road near the shop of one Basheer at Kannankara and thereby committed the offence punishable under Section 326 of the Indian Penal Code.
4. The question arising for consideration before this Court is as to whether there was miscarriage of justice on the facts and in the circumstances of the case, as the learned Additional Sessions Judge proceeded to decide the appeal unaided by the arguments of an Advocate at least by appointing State Brief, Amicus Curiae or a legal aid counsel appointed by the legal services authority to assist the court.
5. Pursuant to the receipt of summons from the trial court, the revision petitioner appeared through his counsel and pleaded not guilty of the charge thus levelled against him by the prosecution. In the trial that followed, PWs.1 to 7 were examined and Exts.P1 to P5 were marked Crl.R.P.No.1990 of 2005 ..5..
on the side of the prosecution. No evidence was adduced on the side of the defence.
6. At the conclusion of the trial, the learned Chief Judicial Magistrate found the petitioner guilty of the offence under Section 326 of the IPC mainly relied on the oral evidence of PWs.2, 3 and 4. PW6 the Assistant Surgeon, Govt.Hospital, Pathanamthitta examined PW2 immediately after the occurrence on 06.07.2002 at 9.30 pm and issued Ext.P2 wound certificate noting fracture lateral bone of orbit on X-ray examination. The trial court convicted the revision petitioner on the strength of some of the eye witnesses.
7. Heard Sri.S.Subhash Chand, the learned counsel for the revision petitioner and Sri.M.S.Breez, learned Senior Public Prosecutor for the State.
8. The plain language of Section 385 of the Cr.P.C. makes it clear that, if the appellate court does not dismiss Crl.R.P.No.1990 of 2005 ..6..
the appeal summarily, it must call for the records from the trial court. That apart, Section 386 of the Cr.P.C. mandates that after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may reverse the finding and sentence as provided under Section 386(b) of the Cr.P.C. Thus, the plain language of Section 385 and Section 386 of the Cr.P.C. does not contemplate dismissal of an appeal for default or for non-prosecution. Needless to say that Sections 385 and 386 of the Cr.P.C. envisage the disposal of the appeal only on merits after perusal and scrutiny of the records.
9. A two Judge Bench of the Apex Court in Ram Naresh Yadav v. State of Bihar [AIR 1987 SC 1500] held that when the counsel engaged by the appellant in a Crl.R.P.No.1990 of 2005 ..7..
criminal appeal does not turn up, the court could only dismiss the appeal for default. The earlier view of the Apex Court has been held erroneous by a three Judge bench of the Apex Court in Bani Singh v. State of UP [(1996) 4 SCC 720] and stated the legal position thus:-
"The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case [AIR 1987 SC 1500: (1987 Crl.LJ 1856) that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non- prosecution."Crl.R.P.No.1990 of 2005
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10. A three Judge Bench of the Apex Court in Bani Singh's case (supra), it was further adumbrated thus:-
"15. ........The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add 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. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so."
11. Significantly, a two Judge Bench of the Apex Court in Rishi Nandan Pandi & others v. State of Bihar [AIR 1999 SC 3850] observed as under:- Crl.R.P.No.1990 of 2005
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"9. As a matter of legal position the Court is not precluded from perusing the records and come to its own conclusion unaided by any legal practitioner to project the points favourable to the accused, when the counsel engaged by them does not turn up to argue. But the three Judge Bench of this Court indicated in Bani Singh v. State of Uttar Pradesh, [(1996) 4 SCC 720:[1996 AIR SCW 2986:AIR 1996 SC 2439: 1996 Crl LJ 3491], that it is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the State"s expense to argue for the cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisable to seek the assistance of a legal talent."
12. In this context, it would be relevant to notice certain principles which have emerged from the reported decision in Md. Sukur Ali v. State of Assam [AIR 2011 SC 1222]. The question was whether in a criminal case if the counsel for the accused did not appear, for whatever Crl.R.P.No.1990 of 2005 ..10..
reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an Amicus Curiae to defend the accused. A two Judge Bench of the Apex Court observed in paragraph 7 of the judgment as under:-
"7. 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 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 the fundamental rights."Crl.R.P.No.1990 of 2005
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13. A two Judge Bench of the Apex Court in K.S.Panduranga v. State of Karnataka [AIR 2013 (SC) 2164] observed as under:-
"36. In view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali, (AIR 2011 SC 1222 : 2011 AIR SCW 1352) (supra) to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh: (AIR 1996 SC 2439:1996 AIR SCW 2986) (supra), is per incuriam."
14. While addressing the issue of per incuriam, the Apex Court in Panduranga's case (supra) followed the dictum in Bani Singh's case (supra) and held as follows:-
"22. From the aforesaid decision, the principles that can be culled out are (i) that the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining Crl.R.P.No.1990 of 2005 ..12..
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."
15. In the case on hand, the learned counsel for the appellant was present on the date of hearing. The appeal was decided on merits after rejecting the prayer for adjournment. Accordingly, the appeal was dismissed Crl.R.P.No.1990 of 2005 ..13..
confirming the conviction and sentence imposed by the trial court. The sentence imposed by the judgment impugned in this revision is of a substantial range. The appeal was decided by the learned Additional Sessions Judge unassisted by the learned counsel for the appellant. Although the appellate court was not under an obligation to adjourn the case to another date if the appellant or his lawyer was not ready for argument, it would have been just and proper for the appellate court to grant one more opportunity for the appellant to argue the appeal on merits. There is nothing on record in this case to hold that the appellant and his lawyer remained absent with impunity.
16. Judged by the above standards, the only course open before this Court in the facts and circumstances is to remit the case to the Sessions Court, Pathanamthitta for disposal of the appeal afresh in accordance with law. If no Crl.R.P.No.1990 of 2005 ..14..
counsel for the accused turns up, the learned Sessions Judge is at liberty on the peculiar facts of this case to dispose of the appeal in the light of the law laid down by the Apex Court in Bani Singh's case (supra).
17. Accordingly, the impugned judgment of the learned Additional Sessions Judge stands set aside. The appeal filed by the revision petitioner before the Sessions Court will stand restored for fresh disposal in accordance with law. The sentence had remained suspended during the pendency of this revision before this Court. Hence it is open to the revision petitioner to move before the appellate court for being released on bail till the disposal of the appeal. The case is remanded back to the Sessions Court, Pathanamthitta for hearing and disposal on merits in accordance with law. The learned Sessions Judge may either dispose of the case or make over the case to one of the Additional Sessions Judges for hearing and disposal in accordance with law.
Crl.R.P.No.1990 of 2005
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18. The parties are directed to appear before the Sessions Court, Pathanamthitta on 27.10.2020 without further notice. Since all the parties have representation before this Court, the appellate court need not issue fresh notice to the parties.
The criminal revision petition is disposed of as above.
Sd/-
N.ANIL KUMAR, JUDGE skj