Saturday, 27 July 2019

Whether court can dispose off appeal against conviction on merit when convict is not represented by Advocate?

 When the accused has preferred the appeal against the
conviction, the appeal can be disposed of on merits only after
hearing the appellant or his counsel. When there was no
representation for the appellant, in our considered view, the High
Court ought not to have disposed of the case on merits. It was held
in 2005 (11) SCC 185 titled Mangat Singh vs. State of Punjab that
where the advocate for the appellant is absent on the date of
hearing, the Court shall either appoint an amicus curiae and then
decide the appeal. Once the appeal against the conviction is
admitted, it is the duty of the Appellate Court either to appoint
an advocate as amicus curiae or to nominate a counsel through Legal
Services Authority and hear the matter on merits and then dispose

of the appeal. 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1106 OF 2019

SHANKAR Vs THE STATE OF MAHARASHTRA 

R.BANUMATHI, J.
Dated:23RD JULY, 2019.

Leave granted.
2. The appellant-accused (husband) is alleged to have abused his
wife - Anusaya in a filthy language and quarreled with her on
05.05.2008 at 6.00 a.m. During the wordy quarrel, the appellant is
alleged to have thrown a plastic bottle containing kerosene and lit
a matchstick and set fire on her. Initially, the case was
registered under Sections 307 IPC and 498 IPC in Crime No. 151 of
2008. Deceased-Anusaya succumbed to burn injuries and the case was
altered to Section 302 IPC. The prosecution relied upon three
dying declarations of the deceased-Anusaya. Based upon the dying
declaration and other evidence adduced by the prosecution, the
Trial Court convicted the appellant-accused under Section 302 IPC
and sentenced him to undergo imprisonment for life. The Trial
Court, however, acquitted the appellant under Section 498 IPC.
Being aggrieved by the verdict of conviction, the appellant has
preferred the appeal before the High Court. Before the High Court

on the date of hearing, none appeared for the appellant-accused.
However, the High Court proceeded to consider the appeal on merits
and, thereafter, dismissed the appeal thereby affirming the
conviction and the sentence of life imprisonment imposed upon the
appellant-accused. Being aggrieved, the appellant has preferred
this appeal.
3. We have heard Mr. A. Sirajudeen, learned senior counsel
appearing on behalf of appellant as well as Mr. Nishant Ramakantrao
Katneshwarkar, learned counsel appearing on behalf of the
respondent-State of Maharashtra and perused the impugned judgment
and other materials on record.
4. Admittedly when the appeal was taken up for hearing
before the High Court, there was no representation for the
appellant. However the High Court proceeded to consider the appeal
on merits.
5. When the accused has preferred the appeal against the
conviction, the appeal can be disposed of on merits only after
hearing the appellant or his counsel. When there was no
representation for the appellant, in our considered view, the High
Court ought not to have disposed of the case on merits. It was held
in 2005 (11) SCC 185 titled Mangat Singh vs. State of Punjab that
where the advocate for the appellant is absent on the date of
hearing, the Court shall either appoint an amicus curiae and then
decide the appeal. Once the appeal against the conviction is
admitted, it is the duty of the Appellate Court either to appoint
an advocate as amicus curiae or to nominate a counsel through Legal
Services Authority and hear the matter on merits and then dispose

of the appeal. When the appellant was not represented by the
advocate, in our view, the High Court ought not to have decided the
matter on merits and the impugned order is liable to be set aside
and the matter is remitted back to the High Court. The High Court
shall restore the Criminal Appeal No. 296 of 2014 and afford
sufficient opportunity to the appellant and proceed with the matter
in accordance with law. In case, if the appellant is still not
represented, we request the High Court to nominate a counsel for
the appellant through the Legal Services Authority and proceed with
the matter. Since the appellant is said to have undergone more than
twelve years of imprisonment and since the Criminal Appeal
No.296/2014 is remitted back to the High Court, the sentence of
imprisonment imposed upon the appellant is ordered to be suspended
and the appellant is ordered to be released on the condition that
he should execute bail bond for a sum of Rs.10,000/- with two
sureties for a like sum each to the satisfaction of the committal
Court. the High Court shall proceed with the Criminal Appeal in
accordance with law.
6. The appeal is, accordingly, disposed of.
.....................J.
[R.BANUMATHI]
NEW DELHI .....................J.
23RD JULY, 2019 [A.S. BOPANNA]

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