1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD) No.4 of 2011 Palanidurai . . . Revision Petitioner/Accused Vs. 1.State rep. by The Sub Inspector of Police, All Women Police Station, Alangudi. (Cr.No.446 of 2004). . . . 1st Respondent/Complainant 2.Dhanam . . . 2nd Respondent/Defacto Complainant R2 is impleaded as per the orders of this Hon'ble High Court made in M.P.(MD) No.3 of 2011 in Crl.R.C. 4/2011, vide its order Dt.31.01.2011 by CTSJ Prayer: Criminal Revision Case is filed under Sections 397 read with 401 of the Criminal Procedure Code, praying to set aside the judgement dated 05.04.2010 made in C.A.No.20 of 2009 by the Court of Additional District and Sessions Judge, Fast Track Court, Pudukkottai, confirming the Judgment of the Court of Judicial Magistrate, Alangudi, dated 01.07.2009 made in C.C.No.146 of 2005. For petitioner : Mr.G.Sridharan For 1st Respondent : Mr.P.Kandasamy Government Advocate (Crl. Side) For 2nd Respondent : No Appearance O R D E R The revision petitioner is the accused in C.C.No.146 of 2005, on the file of the Court of Judicial Magistrate, Alangudi and he was charged and convicted for the offence under Section 417 of the Indian Penal Code and sentenced to undergo 3 months Simple Imprisonment, vide judgment dated 01.07.2009. The revision petitioner challenging the vires of the same, preferred appeal in C.A.No.20 of 2009 before the Sessions Court and it was transferred to the file of the Court of the Additional District and Sessions Judge, Fast Track Court, Pudukkottai. 2. The lower appellate Court has recorded the fact that even though the matter was posted a number of times for disposal, there was no representation for the appellant and therefore, proceeded to dispose of the Criminal Appeal on merits and confirmed the conviction and sentence awarded by the trail Court. Challenging the legality of the same, present Criminal Revision Case has been filed. 3. The learned counsel appearing for the revision petitioner filed M.P. (MD) No.4 of 2011 to raise additional grounds. In the additional grounds it has been stated as follows: https://hcservices.ecourts.gov.in/hcservices/ 2 "3. I beg to submit that on 05.04.2010, my counsel could not appear before the Learned Fast Track Judge, to argue the case as he held up in the Principal Sessions Court, Pudukkottai regarding some other matter and a request for adjournment was made on his behalf. I beg to submit that though my counsel was present and a request was made on his behalf, the approach of the Learned Fast Track Judge in disposing of the appeal without hearing the arguments is erroneous and unsustainable. I further beg to submit that the Learned Fast Track Judge, Pudukkottai, while disposing of C.A.No.20 of 2009 has failed to see that the counsel for the petitioner has not put forth his arguments and in the said circumstances the judgment pronounced by the Learned Fast Track Judge on merits without affording an opportunity to the petitioner is liable to be interfered with by this Hon'ble Court. Further, the Learned Fast Track Judge, having held that inspite of several opportunities the counsel for the petitioner has not argued the case, ought to have appointed an advocate as amicus curiae and then proceed to dispose of the appeal on merits and the failure to do so rendering the judgment liable to be interfered with by this Hon'ble Court." 4. A report was also called for from the lower appellate Court and the report was filed by the successor to the learned Judge, who pronounced the judgment and this Court also perused the said report dated 30.03.2011. 5. Admittedly, neither the revision petitioner/ accused nor his counsel was present when the appeal was taken up for hearing and the lower appellate Court has also recorded that even though the appeal was adjourned number of times, there was no representation and hence, it proceeded to dispose of the appeal on merits. 6. It is settled proposition of law that once the appellant in Criminal Appeal is absent, it is not open to dispose of the appeal in the absence of the accused or his counsel. It is open to the Court either to issue warrant to secure the custody of the accused or to appoint an amicus curiae on behalf of the accused and dispose of the case on merits. Since, the lower appellate Court has failed to adopt the said procedure in this case, the impugned order is liable to be set aside. 7. In the result, the Criminal Revision Case is allowed and the judgment of the Court of the Additional District and Sessions Judge, Fast Track Court, Pudukkottai dated 05.04.2010, made in C.A.No.20 of 2009 is set aside and the matter is once again remanded to the said Court for fresh disposal in the light of the above observation. The learned counsel appearing for the revision petitioner/accused on instructions, would submit that the revision petitioner/accused will be suitably advised to extend his co-operation for the early disposal of the Criminal Appeal. Sd/- Assistant Registrar (P & A) /True copy/ Sub Assistant Registrar(C.S) https://hcservices.ecourts.gov.in/hcservices/ 3 To: 1.The Additional District and Sessions Judge, Fast Track Court, Pudukkottai. 2.The Judicial Magistrate, Alangudi. 3.The Sub Inspector of Police, All Women Police Station, Alangudi. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1. CC to Mr.G.Sridharan, Advocate, SR.No. 19314 sj Crl.R.C.(MD) No.4 of 2011 21.06.2011 TR : 05.07.2011 : 3P/6C https://hcservices.ecourts.gov.in/hcservices/