Whether session court can decide criminal appeal or criminal revision in absence of accused?

 Sessions courts in India have specific limitations regarding deciding criminal appeals and revisions in the absence of the accused, with established legal principles that prioritize fair trial and due process.

General Principle Against Deciding in Absence

Criminal cases, whether trials, appeals, or revisions, should generally not be decided against an accused in their absence. The Supreme Court has consistently held that "criminal case, whether trial, appeal or revision should not be decided against accused in absence of his counsel". This principle stems from Article 21 of the Constitution, which guarantees protection to life and personal liberty.

Distinction Between Accused and Counsel Presence

Presence of Counsel

The more critical requirement is the presence of counsel rather than the accused themselves. The Supreme Court in Md. Sukur Ali vs. State of Assam established that if counsel for the accused does not appear due to negligence or deliberately, "the court should not decide the criminal case against the accused in the absence of his counsel since the accused in a criminal case should not suffer for the fault of his counsel". In such situations, the court should appoint another counsel as amicus curiae to defend the accused.

Physical Presence of Accused

While counsel's presence is mandatory, the physical presence of the accused has different considerations depending on the stage of proceedings.

Appeals Cannot Be Dismissed for Default

It is well-established law that "no criminal appeal can be dismissed on the ground of default in appearance". Criminal appeals must be decided on merits rather than being dismissed for non-appearance. This principle applies equally to criminal revisions, as "a criminal matter cannot be dismissed for default and it must be decided on merits".

Pronouncement of Judgment Requirements

For pronouncement of judgment in appeals against conviction, courts have specific obligations:

• Appellate Court's Duty: "It is the Appellate Court's duty to see that the Judgment in an appeal against conviction should be pronounced in presence of the accused"

• Procedural Safeguards: Section 387 of CrPC requires that rules for judgment in original jurisdiction apply to appellate courts, and unless specific directions for exemption are passed, the accused's presence should be secured before judgment is pronounced.

• Invalid Practice: The Bombay High Court has deprecated "the practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant"

Exceptions and Flexibility

While Section 353(7) of the CrPC provides that no judgment shall be deemed invalid solely due to absence of any party, appellate courts cannot rely on this provision without making genuine efforts to secure the accused's presence.

Regarding revision applications, the Supreme Court in Bihari Prasad Singh v. State of Bihar held that High Courts cannot refuse to hear matters solely because the accused has not surrendered, as "there is no such requirement" under the Criminal Procedure Code provisions.

Conclusion

Sessions courts should not decide criminal appeals or revisions against an accused in the absence of legal representation, and should make reasonable efforts to ensure the accused's presence during judgment pronouncement. The emphasis is on ensuring fair trial principles while maintaining the efficiency of the justice system.

Print Page