Whether court can dismiss Criminal Appeal For Non-Representation Or Default Of Accused' Advocate?

  It is well settled that if the accused does

not appear through counsel appointed by him/her, the

Court is obliged to proceed with the hearing of the

case only after appointing an amicus curiae, but cannot

dismiss the appeal merely because of non-representation

or default of the advocate for the accused (see Kabira

vs. State of Uttar Pradesh1 and Mohd. Sukur Ali vs.

State of Assam2). {Para 8}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 809/2021

K. MURUGANANDAM & ORS.  Vs STATE 

Dated: AUGUST 12, 2021.

1. Delay condoned.

2. Leave granted.

3. Heard learned counsel for the parties.

4. This appeal takes exception to the judgment

and order dated 16.02.2018 passed by the High Court of

Judicature at Madras in Criminal Appeal No.246/2012.

5. When the appeal came up for hearing on

08.07.2021, this Court passed the following order:

"There is a delay of 1040 days in filing the

special leave petition.

On perusal of the impugned order, it

appears that the High Court disposed of the

criminal appeal for non prosecution because

of non appearance of the counsel for the

petitioners. In such a situation, the High

Court is expected to nominate an Amicus

Curiae; and after taking assistance of Amicus

Curiae proceed with the hearing of the

matter.

On this count alone, the impugned order

of non prosecution is unsustainable.

Nevertheless, before we remand the

criminal appeal back to the High Court for

considering it afresh while taking note of

the submission made by counsel for the

respondents that the petitioners have

intentionally avoided to appear when the

appeal was called out for hearing on

different dates, we direct the petitioners to

first surrender and produce surrender

certificate. Thereafter the appeal will be

remitted back to the High Court for

consideration on its own merits.

The petitioners shall surrender within

four weeks from today and produce surrender

proof in the Registry within the same time,

failing which this Court may discuss the

petition for not abiding the direction to

surrender given by this Court.

List the matter on 12th August, 2021."

6. As all the appellants have surrendered and

surrender proof has been produced on record, the

counsel for the appellants was permitted to address on

merits of the case.

7. The High Court vide impugned judgment and

order summarily dismissed the appeal preferred by the

appellants vide following order:

"When the matter was taken up for hearing

on 15.02.2018, there was no representation

for the appellant and hence, the case was

directed to be listed under the caption for

dismissal on 16.02.2018. Even today,

(16.02.2018), there is no representation on

behalf of the appellant either in person or

through the learned counsel on record.

Therefore, the criminal appeal is dismissed

for non prosecution.

8. It is well settled that if the accused does

not appear through counsel appointed by him/her, the

Court is obliged to proceed with the hearing of the

case only after appointing an amicus curiae, but cannot

dismiss the appeal merely because of non-representation

or default of the advocate for the accused (see Kabira

vs. State of Uttar Pradesh1 and Mohd. Sukur Ali vs.

State of Assam2).

9. Accordingly, we have no hesitation in setting

aside the impugned judgment and order and relegate the

parties before the High Court for hearing of Criminal

Appeal No. 246/2012 afresh on its own merits and in

accordance with law.

10. The parties to appear before the High Court on

31.08.2021, when the Court may proceed to hear the

appeal or pass such other appropriate order as may be

necessary.

11. All contentions available to both sides in the

remanded appeal are left open.

12. If the appeal cannot proceed for hearing

1 1981 (Supp) SCC 76

2 (2011) 4 SCC 729

expeditiously, it is open to the appellants to make a

formal application for bail, which can be considered by

the High Court on its own merits.

13. The appeal and pending applications are

disposed of accordingly.

..................,J.

(A.M. KHANWILKAR)

..................,J.

(SANJIV KHANNA)

NEW DELHI;

AUGUST 12, 2021.

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