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.445 of 2011 and M.P.(MD) Nos.3 and 4 of 2011 Murugan . . . Revision Petitioner/Appellant Accused Vs. State rep. by The Inspector of Police, Senthamaram Police Station, In Cr.No.104 of 2006, Tirunelveli District. . . . Respondent/Complainant Prayer: Criminal Revision Case is filed under Sections 397 and 401 of the Criminal Procedure Code, praying to set aside the judgement dated 10.01.2011 made in C.A.No.160 of 2010 by the Court of Additional District and Sessions Judge (Fast Track Court No.II), Tirunelveli, confirming the Judgment of the Court of Judicial Magistrate, Tenkasi, Tirunelveli District dated 21.09.2010 made in S.T.C.No.3345 of 2006. For petitioner : Mr.K.Samidurai For Respondent : Mr.P.Kandasamy Government Advocate (Criminal Side) O R D E R The petitioner is the accused in S.T.C.No.3345 of 2006, on the file of the Judicial Magistrate, Tenkasi and he was charged under Section 354 and 506(i) IPC by the respondent police with the regard to the offence said to have taken place at 10.00 A.M. on 12.05.2006. The trial Court vide judgment dated 21.09.2010, has acquitted the revision petitioner/accused for the offence under Section 506(i) IPC and convicted him under Section 354 IPC and imposed 3 months simple imprisonment and a fine of Rs.5,000/- in default to undergo 2 months simple imprisonment and the period of incarceration undergone by the appellant/accused was ordered to be set-off in terms of Section 428 of Cr.P.C. The revision petitioner challenging the vires of the same, preferred an appeal in C.A.No.160 of 2010 on the Principal District and Sessions Court, Tirunelveli and it was transferred to the Court of Additional District and Sessions Judge, Fast Track Court No.2, Tirunelveli. 2. When the case was posted for arguments on 04.01.2011, neither the revision petitioner nor his counsel appeared, therefore, the lower appellate Court proceeded to dispose of the matter on merits and confirmed the conviction and sentence awarded by the trial Court and consequently, dismissed the appeal vide judgment dated 10.01.2011. The revision petitioner aggrieved by the same has preferred this Criminal Revision Case. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The learned counsel appearing for the revision petitioner would submit that since the appeal has been preferred against the conviction and sentence of imprisonment, it is not open to the lower appellate Court to dispose of the Criminal Appeal on merits, in the absence of the revision petitioner or his counsel and the lower appellate Court could have issued warrant to secure the presence of the revision petitioner/accused or could have appointed an amicus curiae to argue the case on behalf of the accused and thereafter, could have disposed of the matter on merits. However, the lower appellate Court has chosen to dismiss the appeal in the absence of the accused or his counsel and the procedure adopted by the lower appellate Court is not at all in order. 4. On the said submissions, this Court heard the submissions of the learned Government Advocate (Criminal side) also. 5. As rightly contended by the learned counsel appearing for the revision petitioner, the order passed by the lower appellate Court in disposing of the appeal on merits in the absence of the accused or his counsel is not at all in order. Once the accused is absent, so also his counsel, it is always open to the lower appellate Court to issue warrant to the accused to secure his presence or in the alternative to appoint an amicus curiae to argue the appeal on behalf of the appellant/accused. It is also pertinent to point out that the appeal has been preferred by the revision petitioner/accused against the conviction under Section 354 of the Indian Penal Code and the sentence of 3 months simple imprisonment and a fine of Rs.5,000/- in default to undergo 2 months simple imprisonment. Therefore, the dismissal of the appeal on merits in the absence of the accused or his counsel in the considered opinion of the Court is not sustainable. 6. 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 No.2, Tirunelveli dated 10.01.2011, made in C.A.No.160 of 2010 is set aside and the matter is once again remanded to the said Court for adjudication and disposal in accordance with law. The learned counsel appearing for the revision petitioner/accused on instructions, would submit that the revision petitioner/accused will fully co-operate for the disposal of the Criminal Appeal on merits and the same is recorded. Consequently, connected M.P.(MD) Nos.3 and 4 of 2011 is closed. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 3 To: 1.The Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli. 2. The Judicial Magistrate, Tenkasi. 3.The Inspector of Police, Senthamaram Police Station, Tirunelveli District. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. +1CC TO MR.K.SAMIDURAI, ADVOCATE SR.19643 Sj SR : 30.06.2011 : 3p/7c Crl.R.C.(MD) No.445 of 2011 and M.P.(MD) Nos.3 and 4 of 2011 https://hcservices.ecourts.gov.in/hcservices/