1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :14.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.429 of 2011 and M.P.(MD).Nos.1 and 2 of 2011 Senthil Kumar ... Petitioner Vs. State represented by the Sub Inspector of Police, Chinnalapatti Police Station, Dindigul District. (Crime No.109 of 2008) ... Respondent Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C. against the judgment rendered in Crl.A.No.62 of 2010 dated 01.02.2011 by the Additional District and Sessions Judge/Fast Track Court, Dindigul confirming the conviction under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 and sentence of rigorous imprisonment for two years with a fine of Rs.5,000/- in default of payment of fine to undergo simple imprisonment for six months, rendered by the learned Judicial Magistrate No.III, Dindigul in C.C.No.243 of 2009, DT.4.10.2010 For Petitioner : M/s. A.Hariharan For Respondent : Mr.P.Kandasamy, Govt. Advocate (Crl.side) O R D E R By consent, the revision itself is taken up for final disposal as the issue arose in a very narrow campus. 2. The revision petitioner was arrayed as accused in C.C.No.243 of 2009 on the file of the Court of Judicial Magistrate No.III, Dindigul for the alleged commission of the offence under Section 4 r/w. Section 3 of the Tamil Nadu Women Harassment Act, 2002 and vide judgment dated 04.10.2010, he was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default to undergo six months simple imprisonment. The trial Court also ordered set off under Section 428 of Cr.P.C. The revision petitioner challenging the vires of the said conviction and sentence, preferred an appeal in C.A.No.62 of 2010 on the file of the Court of District and Sessions Judge/Fast Track Court, Dindigul. https://hcservices.ecourts.gov.in/hcservices/ 2 3. When the appeal was taken up for disposal on 01.02.2011, neither the revision petitioner herein, who is the appellant nor his counsel appeared and on previous occasions also there was no representation either by the revision petitioner/appellant or his counsel and the lower appellate Court taken into consideration the said fact has dismissed the appeal for default and further directed the respondent to take the custody of the revision petitioner. Challenging the said order dated 01.02.2011 made in C.A.No.62 of 2010, the present revision is filed. 4. The learned counsel appearing for the revision petitioner has invited the attention of this Court to the judgment of the Honourable Supreme Court reported in (2011) 4 SCC 729 in Mohd. Sukur Ali v. State of Assam, wherein it has been held as follows: "17. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae." 5. The lower appellate Court has failed to take into consideration of the fact that the appeal in C.A.No.62 of 2010 has been preferred against the conviction and sentence of imprisonment. Therefore, the lower appellate Court ought not to have dismissed the appeal for default, even though on number of occasions, neither the revision petitioner/appellant nor his counsel appeared before it. In such an event, the lower appellate Court should have taken steps to cancel the bail granted to the revision petitioner/appellant and ordered notice to him or in the alternative, should have appointed an amicus curiae to appear and argue on his behalf. Since the lower appellate Court has failed to follow the above said procedure, the impugned order is unsustainable and therefore, it is liable to be set aside. 6. In the result, the criminal revision is allowed and the order dated 01.02.2001 made in C.A.No.62 of 2010 is set aside and the C.A.No.62 of 2010 is restored to file. Consequently, the connected Miscellaneous Petitions are also closed. https://hcservices.ecourts.gov.in/hcservices/ 3 7. The learned counsel appearing for the revision petitioner/appellant on instructions, would submit that the revision petitioner will extend his fullest co-operation for the early disposal of the appeal and the same is recorded. Sd/ Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1. The Additional District and Sessions Judge /Fast Track Court, Dindigul. 2. The Judicial Magistrate No.III, Dindigul. 3. The Sub Inspector of Police, Chinnalapatti Police Station, Dindigul District. 4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.A.Hariharan, Advocate, Sr.No.18352 Crl.R.C.(MD)No.429 of 2011 14.06.2011 akv SMA/22.6.2011/6C/3P https://hcservices.ecourts.gov.in/hcservices/