IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 Crl.Rev.Pet.No. 2067 of 2011() ------------------------------------------- CRA.528/2009 OF ADDL. DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE. CC.90/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, PERAMBRA. .................... REVISION PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------------- SHAJIB, AGED 38 YEARS, S/O.PRABHAKARAN, RESIDING AT KODUVATTUPARAMBIL HOUSE, VRINTHAVAN COLONY, CHEVAYOOR, KOZHIKODE DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------------ 1. SHANILA, D/O.SANKARAN, VIKAS VEEDU, PANAYI DESOM, BALUSSERY VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT-673 612. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SMT.SAJITHA.S.DHARAN. R2 BY PUBLIC PROSECUTOR MR.SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2067 OF 2011 ----------------------------------------- Dated this the 2nd day of September 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 498(A) of the Indian Penal Code, concurrently by the two inferior courts. The de facto complainant, wife, is the 1st respondent. Crime was registered on the basis of her complaint for offences punishable under Sections 498(A) and 406 IPC and pursuant to a report filed indicting the revision petitioner/accused for both such offences, the trial proceeded leading to his conviction for the offence under Section 498(A) IPC and acquittal of the other offence. Challenge against his conviction by an appeal preferred before the Additional District and Sessions Judge, Fast Track (Adhoc - II), Kozhikode was unsuccessful. Conviction as confirmed by the learned Sessions Judge with the sentence imposed directs his incarceration in prison for one year and to pay fine of `.5,000/- with default term of simple imprisonment for six months more. Feeling aggrieved, he has preferred this revision. 2. Revision was filed with a petition to condone delay, on which notice was ordered to the 1st respondent/ complainant. After hearing both sides, delay was condoned on terms. Crl.R.P No.2067 OF 2011 - 2 - 3. I heard the learned counsel for the revision petitioner/accused and also the 1st respondent/ complainant. Looking into the merits of the conviction, as affirmed by the learned Sessions Judge, I find, the judgment of the learned Sessions Judge has to be set aside and the case remitted for fresh hearing and disposal of the appeal as it is noticed that the appeal was disposed of without hearing the appellant or his counsel. The learned Sessions Judge has noted that several opportunities were given, but, there was no representation on the part of the appellant and also his counsel to advance arguments on the merits of the appeal. In view of the default of the appellant and his counsel, to appear and argue the appeal, it is seen, the appeal was taken as heard and then disposed of. Procedure followed by the learned Sessions Judge for disposal of the appeal is not in consonance with the provisions of the Code of Criminal Procedure. In case the appellant or his counsel is absent, as the challenge in the appeal is against conviction in a penal offence, ends of justice require issue of notice to the appellant directing his appearance or at least appointment of a counsel at the instance of the court to present arguments on the merits of the appeal after going through the records of the case. A disposal of the appeal without assistance from a counsel solely looking upon the records of the case or even with the assistance of the respondent/complainant Crl.R.P No.2067 OF 2011 - 3 - can never be treated as a disposal under law of an appeal, which had been received and taken on file of the court. Though under Section 386 of the Code, dealing with the powers of appellate court, hearing of the appellant or his counsel is qualified with the words 'if he appears', still, it does not postulate that an appeal could be disposed of in the absence of the appellant or his counsel treating him as ex parte. No such procedure is contemplated by the Code. Conflicting views expressed by the apex court, whether an appeal could be disposed without hearing the appellant, that question, it is submitted, awaits consideration. When the appellant or his counsel is absent, issue of notice to the appellant for his appearance before the court or appointing a counsel on behalf of the appellant to present arguments on the merits of the appeal and, thus, disposal of the appeal taking into consideration of such arguments by the appellant or the counsel so appointed has to be followed, to secure and safeguard the ends of justice. 4. Setting aside the judgment rendered by the lower appellate court impugned in the revision, the learned Sessions Judge is directed to take back the appeal on file and dispose the case afresh after hearing both sides in accordance with law taking note of the observations made above. Crl.R.P No.2067 OF 2011 - 4 - 5. Parties are directed to mark their appearance before the Judicial First Class Magistrate - II, Perambra on 03-10-2011. Revision disposed of. vdv S.S.SATHEESACHANDRAN, JUDGE