Supreme Court: Criminal revision or appeal needs to be considered on merits even in the absence of a party or their counsel

 We have carefully gone through the impugned order. It would reveal that the learned counsel for the appellant as also the appellant were absent when the matter was taken up for hearing. The order would further reveal that after noting their absence, the Court perused the records and ultimately passed the order impugned. However, the order does not reflect consideration of the case on merits. In other words, it is a non-reasoned order. When an adverse order would affect the personal liberty of a person, the fact that he is a convict cannot be a reason to deprive him of fair treatment in the matter of consideration of his revision petition in the manner prescribed by this Court, as the law laid down by this Court in that regard is binding on all Courts by virtue of Article 141 of the Constitution of India.{Para 4}

5. In the decision in Madan Lal Kapoor v. Rajiv Thapar(2007) 7 SCC 623, a Two-Judge Bench of this Court held that the rule laid down by this Court that a criminal appeal should not be dismissed for default would also apply to criminal revisions. The reference thus made was to the decision of a Three-Judge Bench of this Court in Bani Singh v. State of U.P. (1996) 4 SCC 720 In Bani Singh’s case (supra), this Court held thus: -

“14. …… The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record…...”

6. We are in perfect agreement with the view taken by the Two-Judge Bench in Madan Lal Kapoor’s case (supra) and, therefore, even in the absence of a party or his counsel, a revision petition calls for consideration on merits in accordance with the parameters for consideration of a revision petition.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO. 2421 OF 2023 (Arising out of SLP (Crl.) No.5298/2023) 

TAJ MOHAMMAD Vs STATE OF UTTAR PRADESH & ANR.

Coram: C.T. RAVIKUMAR; J., SANJAY KUMAR; J. 

Dated: 11 AUGUST, 2023. 

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Whether second partition suit will be barred by res judicata if first partition suit was dismissed for default?

The suit filed by the Plaintiff in 1962, based on the settlement deed executed by her husband in her favour and the sufferance of the dismissal of the suit, will not, in any way, be a bar for making a claim for her share, if any, of the family property, if otherwise permissible under law. As succinctly addressed by the first appellate court, the 1962 suit for the entire property was based on a settlement deed and it was a suit for possession. Whereas, the 1988 suit for partition was for Plaintiff's one-half share in the property based on her birth right. Cause of action is entirely different. {Para 18}

19. Thus, the High Court in our opinion is not right on the point of res judicata.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016

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Whether court can dismiss criminal revision in default?

This appeal is directed against the order passed by the learned Single Judge of the High Court of Delhi in Criminal Revision Petition No. 42 of 2000 dated August 11, 2005. The learned Single Judge dismissed the Criminal Revision Petition filed by the appellant herein by the order which reads thus;

In spite of notice, nobody appears for the petitioner today. Crl. Rev. P. 42/2000 is accordingly dismissed in default for non-prosecution.

4. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed.

5. Thus in Bani Singha and Ors. v. State of U.P. MANU/SC/0615/1996 : 1996CriLJ3491 , a three Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel present, the Court could decide the appeal on merits. If the appellant is in jail the Court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent.

8. In our opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1150 of 2007 

Decided On: 31.08.2007

 Madan Lal Kapoor  Vs.  Rajiv Thapar and Ors.

Hon'ble Judges/Coram:

C.K. Thakker and Markandey Katju, JJ.

Citation: MANU/SC/7884/2007.

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