1. Conviction under Section 498A IPC — Appeal dismissed for non-appearance of counsel due to Registry error in cause list — Petition to set aside dismissal. (Para 2 , 3 , 4 )
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1998 Supreme(SC) 535
1998(4) Supreme 281
Supreme Court of India
(From Andhra Pradesh High Court)
A.S. Anand & S. Rajendra Babu, JJ.
G. Raj Mallaiah & Anr. -Appellants
versus
State of A.P. -Respondent
Crl. Appeal Nos. 521-522 of 1988
(Arising out of SLP (Crl.) Nos. 3706-3707 of 1997)
Decided on 27-4-1998
Counsel for the Parties :
For the Appellants : D. Prakash Reddy, K.M. Rao and Mrs. D. Bharathi Reddy, Advocates.
For the Respondent : Guntur Prabhakar, Advocate.
Important Points
Very Important Point
It is no doubt true that it is open to the Court to dispose of an appeal on merits even in the absence of the learned counsel appearing for the parties when the case is set down for hearing and the advocate or the party concerned does not appear. However, when the learned counsel could not appear before the Court not on account of the fault either of the appellant or the advocates themselves, but on account of mistake committed by the Registry of the High Court in not showing the names of the counsel in the cause list properly and the counsel not being aware of the listing of the case before the Court in such a matter we do not think that principle should be extended.
It is no doubt true that it is open to the Court to dispose of an appeal on merits even in the absence of the learned counsel appearing for the parties when the case is set down for hearing and the advocate or the party concerned does not appear. However, when the learned counsel could not appear before the Court not on account of the fault either of the appellant or the advocates themselves, but on account of mistake committed by the Registry of the High Court in not showing the names of the counsel in the cause list properly and the counsel not being aware of the listing of the case before the Court in such a matter we do not think that principle should be extended.
Subject
Criminal Law - Dismissal of Appeal
Act Referred
Headnote
Criminal Procedure Code, 1973 -Appeal-Procedure for disposal-Dismissal on ground of absence of counsels for appellant-Absence of counsels not on account of fault of appellant or their advocates but an account of mistake committed by Registry of High Court in not showing the names of the counsels in the cause list properly and consequently counsels not aware of listing of the case before Court-Order of High Court dismissing appeal resulted in miscarriage of justice-Liable to be set aside and matter remitted back to High Court for disposal in accordance with law. (Paras 5 & 6)
Legal Category Hierarchy
Table of Contents
2. Appellants contended dismissal resulted from Registry's failure to update counsel names; High Court held old counsel should have informed appellants and appeal was decided on merits. (Para 4 )
3. Dismissal of an appeal on merits in the absence of counsel is impermissible when such absence results from a Registry mistake in the cause list. (Para 5 , 6 )
4. A decision rendered without hearing the party or counsel due to a Registry error in notifying the hearing date constitutes a miscarriage of justice. (Para 6 )
5. High Court order dismissing the appeal set aside — Appeal restored to original number for disposal in accordance with law. (Para 7 )
6. Can a criminal appeal be decided on merits if the appellant and counsel are absent?
Yes, under Sections 385 and 386 of the CrPC, the court is not bound to adjourn and may dispose of the appeal on merits if both the appellant and lawyer are absent. (Para 6 )
7. Does the power to decide an appeal on merits apply if the absence of counsel is due to a court registry error?
No, if the counsel's absence is caused by a mistake by the Registry in not properly showing the counsel's name in the cause list, leading to a lack of notice, the principle of deciding on merits does not apply. (Para 5 , 6 )
8. What is the remedy if a decision made in the absence of a party results in a failure of justice?
A higher court can remedy the situation if there has been a failure of justice, such as when a party was not given proper notice of the hearing due to administrative errors. (Para 6 )
Judgment
S. Rajendra Babu, J.-Leave granted.
2. The appellants were chargesheeted for offences arising under Section 304 I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act read with Section 498A, I.P.C. The allegation made in the chargesheet is that one G. Madhavi Latha was married to Manik Prabhu the son of the appellants herein on 8.6.1983; that the deceased Madhavi Latha, the appellants and her husband were living in Hyderabad, that on 27.6.1989 Madhavi Latha is said to have committed suicide by setting fire to herself in the presence of her children and she succumbed to the same on 29.6.1989; that the appellants were ill-treating the deceased by hurling abuses at her and did not provide proper or timely food as she did not bring enough money towards dowry. In the trial 20 witnesses were examined on behalf of the prosecution and several documents were marked while the defence examined two witnesses and also got several documents marked. The trial court held that the offences arising under Section 304 I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act were not established and acquitted them of the said charges. However, the trial court convicted the appellants for offences arising under Section 498A and sentenced them to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 200/- each in default to suffer simple imprisonment for one month.
3. Aggrieved by the said conviction, the appellants preferred an appeal being Criminal Appeal No. 577 of 1993 on the file of the High Court. The appellants engaged the services of Shri Shankar Rao Biloliker and Shri Milind Gokhale and subsequently they were replaced by Shri Anil Kumar and Shri C. Praveen Kumar, Advocates who filed memo of appearance with consent of the learned counsel appearing earlier in the case. The appeal was listed for hearing on 12.8.1997 when Mr. Milind Gokhale filed a memo stating that the appellant had taken away the file and wanted to engage some other counsel and he had already endorsed his no objection on the Vakaltnama. The matter was listed for hearing on 14.8.1997, 26.8.1997, 27.8.1997 and finally on 28.8.1997 on which date the matter was dismissed. On all these dates the name of Mr. Milind Gokhale was shown as the learned counsel for the appellants whereas in fact Mr. Anil Kumar and Shri Praveen Kumar had filed memo of appearance on 25.10.1993. However, that information was not put up with the file, fed into the computer either, nor printed in the cause list. In those circumstances the appeal came to dismissed in the absence of the learned counsel for appellants.
4. An application was filed by the parties under Section 482 of the Criminal Procedure Code in Miscellaneous Petition No. 4201 of 1997 seeking for setting aside the judgment passed on 28.8.1997 dismissing their appeal. The said application set out the facts to which we have adverted to now about the change of the advocates and the names of the new advocates appearing in the case not having been shown in the cause list. In fact, the High Court held an enquiry into the matter and called upon the office to make a report and the said report, a copy of which is made available to us, reflects what we have stated about the mistake of the office in not indicating the names of the advocates and about the change of the advocates. It is clearly admitted in the Report that by mistake the names of Mr. Anil Kumar and Mr. Praveen Kumar were not shown in the cause list. The High Court however, dismissed the petition observing that Mr. Milind Gokhale whose name was shown in the cause list should have informed the appellants and the criminal appeal having been disposed of on merits, the same could not be restored. The respondent remained unrepresented.
5. It is no doubt true that it is open to the Court to dispose of an appeal on merits even in the absence of the learned counsel appearing for the parties when the case is set down for hearing and the advocate or the part
