*THE HON’BLE SRI JUSTICE K.G. SHANKAR +Crl.R.C.No.1201 of 2005 %27.09.2011 Between: #Cheekatimarla Satyanarayana … Petitioner Vs. $The State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad, and 4 others … Respondents ! Counsel for the petitioner: T.S.N. Murthy Counsel for the Respondents: Addl. Public Prosecutor <Gist: >Head Note: ? Cases referred: 1. AIR 2008 SC (Supp) 593 2. (1994) 4 SCC 664 3. 1982 SCC Crl. 143 THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1201 of 2005 Date: 27.09.2011 Between: Cheekatimarla Satyanarayana … Petitioner/ Accused AND The State of A.P. rep.by Public Prosecutor, High Court of A.P., Hyderabad. …Respondent/ Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1201 of 2005 ORDER: The revision petitioner is A.1 in C.C.No.402 of 1992 on the file of the III Metropolitan Magistrate, Vijayawada. There were four accused in that case. The case against A.2 was split up. A.1, A.3, and A.4 were charged for the offence under Section 394 of the Indian Penal Code (IPC). The learned trial Judge considered that the case was proved against the accused who faced trial. He sentenced each of the three accused (A.1, A.3 & A.4) to Rigorous Imprisonment for a period of three years and fine of ` 5,000/- with appropriate default sentence. Assailing the judgment of conviction, A.1 and A.4 alone preferred Criminal Appeal No.53 of 1996 before the Sessions Court. However, before the appellate Court, after their sentences recorded by the trial Court were suspended, A.1 and A.4 jumped bail. There was no representation for the accused before the Sessions Court. The learned VII Additional Sessions Judge, Krishna District at Vijayawada went on to dispose of the appeal on the basis of available record without the presence of appellants who are A.1 and A.4 and without hearing the arguments of the counsel for the accused. The appellate Court confirmed the conviction as well as the sentence recorded by the trial Court. Aggrieved by the same, the first accused alone preferred the present revision. 2. Sri T.S.N. Murthy, learned counsel appearing for the accused raised only one contention that it was imperative for the appellate Court to dispose of the appeal after hearing the counsel for the accused. He pointed out that in the event there was no advocate for the accused or the counsel representing the accused either was absent or refused to advance submissions on behalf of the accused, the appellate Court was duty bound to appoint a legal aid counsel to represent the accused and dispose of the case after hearing the counsel for the accused. In short, his contention is that ex parte disposal of the case is not sustainable. He placed reliance upon Section 385 Cr.P.C. in support of his contention and urged that Section 385 Cr.P.C. ordains the appellate Court to hear the accused before it disposes of the appeal. 3. Section 385 Cr.P.C. reads: “385. Procedure for hearing appeals not dismissed summarily.— (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given---- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant; (iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.” (emphasis supplied) 4. It is the contention of the learned counsel for the accused that in view of Sec.385 (2), it is imperative for the appellate Court to hear the parties. Sec.385 Cr.P.C. does not contemplate a situation where the accused is absent and where the accused is not represented by a counsel. There is no provision in the Code to meet such a contingency. 5. The learned counsel for the accused placed reliance upon Man Singh v. State of M.P.[1] in support of his claim. In that case, the accused was convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to Rigorous Imprisonment for a period of five (twenty) years. The High Court appointed a legal aid counsel to represent the accused in the appeal. The legal aid counsel, however, did not appear before the Court when the case was taken up. The High Court of Madhya Pradesh disposed of the appeal without hearing the accused. In the appeal by the accused before the Supreme Court, the Supreme Court observed: “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 he 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.” 6. On the strength of this decision, it is the contention of the learned counsel for the revision petitioner/A.1 that the judgment of the appellate Court deserves to be set aside and that the case deserves to be remitted to the Sessions Court for fresh consideration. I am afraid that this decision is not to the effect that an appeal should not be disposed of without hearing the accused. In that particular case, a legal aid counsel was appointed. The counsel appointed by the Court did not appear before the Court. The Supreme Court consequently considered that the Court ought to have appointed another counsel to represent the accused. 7. In the present case, A.1 and A.4 were represented by a counsel engaged by them and not by a legal aid counsel before the appellate Court. This decision, therefore, is of no help in deciding the present case. 8. However, while in Parsuram Patel v. State of Orissa[2], the Supreme Court considered that Criminal appeals should not be dismissed for default in appearance of the appellant or his advocate, it was observed in Khalil v. State of U.P.[3] that when the advocate of the appellant did not appear or refused to argue, the appellate Court should appoint an advocate as amicus curiae and then proceed with the appeal on merits. It, therefore, is evident that the appellate Court is not entitled to dismiss the criminal appeal for default nor can it dispose of the appeal on merits without hearing the advocate of the accused or a legal aid counsel on behalf of the accused. 9. As the learned Sessions Judge disposed of the appeal without hearing the counsel for the accused, the order of the appellate Court is not sustainable and is liable to be set aside. The judgment of the criminal appeal is accordingly set aside. The case is remitted to the appellate Court for fresh disposal according to law after according opportunity to both sides to make their submissions. 10. The Criminal Revision Case is, accordingly, ordered. __________________ K.G. SHANKAR, J Date: 27.09.2011 Note: L.R. Copy marked. Isn [1] AIR 2008 SC (Supp) 593 [2] (1994) 4 SCC 664 [3] 1982 SCC Crl. 143