IMPORTANT POINT
Disposal of appeal – If accused does not appear through Counsel appointed by him/her, Court is obliged to proceed with hearing of case only after appointing an amicus curiae, but cannot dismiss appeal merely because of non-representation or default of Advocate for accused.

ORDER

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 Pradesh, 1981 (Supp) SCC 76 and Mohd. Sukur Ali vs. State of Assam, (2011) 4 SCC 729).

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 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.