IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.431 of 2002 [Against the judgment and order dated 23.11.2000 passed by the learned 4th Additional Sessions Judge, Bhagalpur in Cr. Appeal No. 13 of 1992] ======================================================= Parasuram Singh @ Punam Singh, son of late Gore Lal Singh, resident of Dogachhi, P. O. Tadar, P.S. Sanhaula, Dist. Bhagalpur. .... .... Petitioner Versus The State Of Bihar .... .... Opposite Party ======================================================= Appearance : For the Petitioner :Mr. Krishna Pd. Singh, Sr. Adv. :Mr. D. K. Singh, Adv. For the State :Mrs. Indu Bala Pandey ======================================================= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The accused- petitioner has preferred this revision application against the judgment and order dated 23.11.2000 passed by the learned 4th Additional Sessions Judge, Bhagalpur in Cr. Appeal No. 13 of 1992 by which the judgment and order dated 7.3.1992 passed by the learned Judicial Magistrate, 1st Class, Bhagalpur in G. R. No. 1208/80, Trial No. 825/92 convicting the petitioner has been confirmed and the appeal has been dismissed. 2. The sole –accused petitioner Patna High Court CR. REV. No.431 of 2002 dt.30-11-2011 2 faced the trial and was held guilty and he was sentenced to undergo rigorous imprisonment for three years under Section 25(1)(a) and rigorous imprisonment for six months under Section 26(1) of the Arms Act and both the sentences to run concurrently by the learned Judicial Magistrate vide order dated 7.3.1992. Thereafter, the petitioner preferred Cr. Appeal No. 13 of 1992 which has been dismissed without hearing learned counsel for the petitioner. 3. Learned counsel for the petitioner submits that Cr. Appeal No. 13 of 1992 was filed through his counsel Sri Sukdeo Prasad Singh, Advocate and the petitioner was allowed bail. The petitioner is a driver and he went in the job to several places leaving pairavi of the case to one advocate clerk. It appears that his counsel Sukdeo Prasad Singh died on 27.6.1994 but he could not get the information about his death and as such he could not engage any advocate and the case was taken up for hearing. Admittedly, no one appeared on behalf of the petitioner and the learned appellate court proceeded with this case in absence of the appellant. He has Patna High Court CR. REV. No.431 of 2002 dt.30-11-2011 3 further submitted that the Court should have appointed an amicus curiae, if no counsel for the appellant appeared in the appeal. 4. Learned counsel for the State could not controvert the contention of the petitioner. 5. After hearing learned counsel for the petitioner and learned counsel for the State and on perusal of the impugned order it appears that the learned appellate court has proceeded with the appeal without the presence of an advocate on behalf of the appellant- petitioner. Only learned APP has been heard appearing on behalf of the State on 20.11.2000 and the case was fixed for judgment on 23.11.2000 and the appeal has been dismissed by judgment and order dated 23.11.2000. From perusal of the judgment dated 23.11.2000 the name of the counsel for the appellant has been mentioned as Sri Sukdeo Prasad Singh, Adv., whereas, in the order-sheet it has been mentioned that no one appeared on behalf of the appellant. In that view of the matter, the contention of the petitioner is correct. His counsel Sukdeo Prasad Singh died and no one appeared on behalf of the appellant. From Patna High Court CR. REV. No.431 of 2002 dt.30-11-2011 4 perusal of the judgment vide paragraph 3 it also appears that no one appeared on behalf of the appellant and only Additional P. P. has been heard. 6. It is settled principle of law that in absence of the counsel for the appellant in criminal cases amicus curiae should be appointed. In support of this view, reference may be made to a decision in the case of Md. Sukur Ali vs. State of Assam, reported in 2011(2) PLJR (SC) 67. Paragraph 7 of judgment is as follows:- “7. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel‟s negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 12 can be said to be the „heart and soul‟ of the fundamental rights.” Patna High Court CR. REV. No.431 of 2002 dt.30-11-2011 5 7. Considering the facts and circumstances, stated above, in my opinion, the impugned order is not fit to be sustained. It is set aside and Cr. Appeal No. 13 of 1992 is remanded to the Court of 4th Additional Sessions Judge, Bhagalpur for fresh hearing and disposal of the appeal in accordance with law. 8. In the result, this revision application is allowed. Patna High Court Dated 30th of November 2011 A.F.R/Kanchan (Amaresh Kumar Lal, J.)