1 Cri.Rev.Appl.No.81 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVIVISON APPL.NO.81 OF 2011 Sk.Imam @ Babu S/o. Sk.Hussain, Age-36 years, Occu-Labour, R/o.Phulkasa, Tq.Puna, Dist. Parbhani APPLICANT VERSUS State of Maharashtra, Through Police Station, Tadkalas, Tq.Purna, Dist. Parbhani RESPONDENT Mr.P.S.Agrawal, learned counsel for the applicant. Mr.N.R.Shaikh, learned A.P.P. for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 01/04/2011 ORAL JUDGMENT : 1. Heard learned counsel for the applicant. Issue notice to respondent. Learned A.P.P. accepts notice for respondent/State. 2. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2 Cri.Rev.Appl.No.81 of 2011 3. This is one more occasion to this Court to deal with the revision filed by the appellant/accused, whose criminal appeal against conviction stands dismissed for default by the order of Ad-hoc Additional Sessions Judge, Parbhani in Criminal Appeal No.72/2007. 4. Such of the facts as are necessary for the decision in this criminal revision, can be summarized as follows - Appellant alongwith his parents and with one Hajaratbee W/o. Sk.Imam were tried before learned J.M.F.C. Purna, Dist. Parbhani in RCC No.36/2006 for an offence punishable u/s. 498-A, 504, 506 r/w. 34 of The IPC. The learned Magistrate, vide his judgment dated 11/07/2007, pleased to convict the appellant accused for an offence punishable u/s. 498-A of The IPC, and sentenced to suffer RI for 6 months and to pay fine in the sum of Rs.1,000/- with default stipulation to undergo further SI for 15 days. The remaining accused who were tried alongwith the appellant were acquitted from all the charges. The applicant/accused was also acquitted from the charge for an offence punishable u/s. 504, 506 r/w. 34 of The IPC. 5. It appears that being aggrieved by the said order of conviction and sentence, appellant accused preferred Criminal Appeal No. 72/2007 before the learned Sessions Judge, Parbhani. It is urged across the bar that during the pendancy of the appeal, the matter was amicably settled between the applicant/accused and his wife, the original complainant who has filed the complaint u/s. 498-A of IPC 3 Cri.Rev.Appl.No.81 of 2011 with other offences. After amicable settlement, the husband and wife started to reside with each other. Due to that the present applicant had not attended the criminal appeal. It appears as the appellant and his advocate were absent at the time of final hearing of criminal appeal, non bailable warrant was issued against the appellant/accused with notice to his surety and ultimately on 12/12/2010, appeal was dismissed for default. 6. The only point require consideration in this revision is that Can the First Appellate Court dismiss the Criminal Appeal against conviction for default ? It revealed from the order of the Trial Court that before issuance of the NBW, the bail bond of the appellant was not forfeited. The report of the execution of the bailable warrant is not on record. It further appears that report of execution of NBW as well as service of notice on surety are also not on record. In absence of execution of NBW, and service of notice on the surety, the Trial Court directly dismissed the criminal appeal for default. 7. This Court had an occasion to deal with such situation in the matter of Jafar Shamshuddin Momin Versus Nighoj Gramin Bigarsheti Sahakari Patsanstha Maryadit and another, 2010 LawSuit (Bom) 1094 wherein it is observed that, “This Court had an occasion to deal with such a situation in the matter of “Kisan @ Kanhyalal S/o.Harishankar, Vs. The State of Maharashtra, Through Police Station, Kannad” in Criminal Application No.3333/2006 4 Cri.Rev.Appl.No.81 of 2011 decided on 14th November, 2006. This Court, para no.5 of the said judgment has observed that - “7. now it is settled law, that the Criminal Appeal can not be dismissed for default for want of prosecution. It is further settled that if the Advocate for the appellant does not appear or refuses to argue, the Court should appoint an Advocate as amicus curiae and then proceed to dispose of the appeal on merits. In this respect, a useful reference can be made to the judgments of the Apex Court in case of (i) Parsuram Patel Versus State of Orissa, 1994 4 SCC 664 and, (ii) State Khalili Vs.State of Uttar Pradesh, 1982 SCC (Cri) 143. In that view of the matter, the impugned order passed by the lower appellate Court is patently erroneous. The judgment and order of the lower appellate court, thereby dismissing the appeal in default, is passed in ignorance of the law laid down by the Apex Court.” 8. Even the Full Bench of Apex Court, in the matter of “Bani Singh Vs. State of U.P.”, 1996 AIR (SC) 2439 has observed that, “It is the duty of the appellant and his lawyer to remain present on theh appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss.385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court 5 Cri.Rev.Appl.No.81 of 2011 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. The plain language of Ss. 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. 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.” It is further useful to give the reference of the observation of the Apex matter in the matter of Md.Sukar Ali versus State of Assam, 2011 AIR SCW 1352, wherein it is observed in para no.7 that, “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 6 Cri.Rev.Appl.No.81 of 2011 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 ‘heard and soul’ of the fundamental rights.” 8. On perusal of the judgments cited supra, it reveals that if the appellant and his counsel were not present on the date of the hearing of the appeal, then the concerned Court to take necessary steps to secure the presence of the appellant and then the Appellate Court, on perusal of record available can pass the judgment only on merit, but can not dismiss the appeal for default for absence of appellant or his counsel and it is not permissible in law. Considering this legal aspect, the criminal revision is liable to be allowed. 9. Accordingly, this revision application succeeds. The order passed by the learned Ad-hoc Additional Sessions Judge, Parbhani in Criminal Appeal No.72/2007 dismissing the appeal for default, is hereby quashed and set aside and the Criminal Appeal No.72/2007 is restored on the file of the learned Sessions Judge, Parbhani. The appellant/accused to appear before the Trial Court on 13/04/2011. Thereafter, the learned Trial Court to decide the criminal appeal no. 72/2007 in accordance with Law. 7 Cri.Rev.Appl.No.81 of 2011 10. Rule made absolute as indicated above. Criminal Revision Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/APRIL 2011/cri.rev.81-11