1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated:10.08.2011 Coram: THE HONOURABLE MR. JUSTICE S.PALANIVELU Crl.RC.(MD)No.664 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 Chelladurai .. Petitioner vs. State through The Inspector of Police, Mukkoodal Police Station, Tirunelveli District. (In Crime No.78 of 2007) .. Respondent Criminal Revision Petition filed under Section 397 and 401 of Criminal Procedure Code to call for the records from the Appellate Court and hear the Revision and set aside the judgment dated 02.05.2011 delivered by the learned Fast Track Court No.II, Tirunelveli in C.A.No.25 of 2011 confirming the judgment of the learned District Munsif-cum- Judicial Magistrate, Cheranmahadevi in C.C.No.54 of 2008, dated 08.02.2011 and acquit the petitioner by allowing the Revision Petition. For Petitioner : M/s.C.Arul Vadivel @ Sekar For Respondent : Mr.P.Kandasamy Government Advocate (Crl.side) O R D E R This Criminal Revision is preferred to call for the records relating to the judgment dated 02.05.2011, passed in C.A.No.25 of 2011, by the learned Fast Track Court No.II, Tirunelveli confirming the judgment of the learned District Munsif-cum-Judicial Magistrate, Cheranmahadevi in C.C.No.54 of 2008, dated 08.02.2011, set aside the same and acquit the petitioner. 2. The petitioner is the appellant in C.A.No.25 of 2011, on the file of the Additional Session Judge/Fast Track Court No.II, Tirunelveli. When the appeal was taken up for hearing on 02.05.2011, neither the petitioner nor his counsel was present before the Court below. Hence, the Court below proceeded to hear the arguments advanced on behalf of the State and passed judgment on merits. It is the matter in issue before this Court. 3. Mr.C.Arul Vadivel @ Sekar, the learned counsel appearing for the petitioner would contend that when the Court finds that there is no representation on behalf of the appellant in Criminal Appeal, it is its duty to appoint any Legal Aid counsel at the cost of the State or an https://hcservices.ecourts.gov.in/hcservices/ 2 amicus curiae to assist the Court on behalf of the appellant and if the Court proceeds to dispose the appeal on merits in the absence of the appellant or his counsel, the judgment has no force in the eye of law. 4. Heard the learned Government Advocate (Crl. side) appearing for the respondent, who says that there is no wrong in the judgment passed by the Court below. 5. The learned counsel for the petitioner in support of his contention placed reliance upon the three decisions of the Honourable Apex Court. 6. In AIR 1987 Supreme Court 1500 (Ram Naresh Yadav and others v. State of Bihar), it is held as follows: "We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf." 7. In AIR 1990 Supreme Court 1224,(Dr.Jainendrakumar Vijaykumar Badjate v. State of Maharashtra) it is held as under: "2. We find that Criminal Appeal No.25 of 1986 has been decided without the learned counsel of the appellant (accused) who was appointed by the Court not being present. We do not wish to enter into the question as to why the counsel was not present. That is a matter which can be considered by appropriate authorities, if hey think fit. In the circumstances, however, we set aside the judgment of the High Court and direct that the Criminal Appeal No.25 of 1986 shall be heard afresh by the High Court." 8. In (2008) 9 Supreme Court Cases 542, (Man Singh and another v. State of Madhya Pradesh), it is held as follows: "5. We need not deal with the merits of the case as we find that the learned counsel appointed by the Legal Aid Committee did not appear on the date fixed before the High Court. The High Court could have in such circumstances required the Legal Aid Committee to appoint another counsel. Considering the seriousness of the offence, it would have been appropriate for the High Court to do so." https://hcservices.ecourts.gov.in/hcservices/ 3 9. It is well settled that when the criminal appeal is taken up for hearing, the Court may grant sufficient time for the appearance of the appellant or his counsel and even if they do not appear in the future dates of hearing, it is incumbent upon the Court to appoint Legal Aid counsel at the cost of the State or amicus curiae. In the absence of representation on behalf of the appellant, no judgment or order shall be passed on merits. There is no impediment for the Court below to appoint a counsel from the panel of lawyers recommended by Legal Aid Services Authority. In such view of the matter, the judgment challenged before this Court is liable to be set aside and it is accordingly set aside. 10.In the result, the Criminal Revision case is allowed directing the Court below to restore the appeal in C.A.No.25 of 2011 to file and proceed with the same following the settled principles of law after servicing notice to appellant as to the date of hearing. Consequently, connected miscellaneous petitions are closed. srm Sd/- Assistant Registrar[AS] /True copy/ Sub Assistant Registrar To The Fast Track Court No.II[Additional Sessions Judge], Tirunelveli. [With Records if any] Copy: 1. The District Munsif cum Judicial Magistrate, Cheranmahadevi. 2. The Inspector of Police, Mukkoodal Police Station, Tirunelveli District. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.R.C.(MD)No.664 of 2011 Dated:10.08.2011 3P/5C RPB 26.08.2011 https://hcservices.ecourts.gov.in/hcservices/