The First Appellate Court must reassess evidence and ensure a fair trial, even in the absence of the appellant, to prevent miscarriage of justice.

ORDER :

(V. Srishananda, J.)

Heard Sri.M.Shashidhara, learned counsel for the revision petitioner and Smt.Waheeda M.M., learned High Court Government Pleader for respondent/State.

2. Accused who suffered an order of conviction in C.C.No.7848/2018 dated 30.04.2022 on the file of Metropolitan Magistrate Traffic Court – IV, Bengaluru for the offence punishable under Section 279 and 304A of IPC.

3. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.626/2022.

4. Learned Judge in the First Appellate Court suspended the order of conviction and sentence by order dated 02.06.2022 and ordered to secure the Trial Court Records.

5. Learned Additional Public Prosecutor took notice of the appeal and Trial Court Records were received on 17.11.2022. Matter thereafter was listed eleven times before the First Appellate Court but on all those dates of hearing, learned counsel for the revision petitioner/appellant remained absent. Taking note of the conduct on the part of the revision petitioner/appellant, learned Judge in the First Appellate Court on 04.09.2024 passed the following order:

“Case has been called out.

Learned Public Prosecutor is present.

Appellant and counsel absent.

Perused the records.

It is evident from the order sheet that there is no representation on behalf of the appellant on several adjournments.

So, it appears that the appellant is not interested. As such, appeal is dismissed by confirming the Trial Court judgment.

Office is directed to send back the Trial Court Records.”

6. Being aggrieved by the same, accused is before this Court in this revision.

7. Sri.M.Shashidhara, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that the approach of the learned Judge in First Appellate Court cannot be countenanced in law especially having regard to the rights envisaged for the accused in criminal justice system.

8. He further pointed out that the lawyer could not note proper hearing dates and whereby he lost track of the appeal and only when the appellant/revision petitioner came to know about the present impugned order, he questioned the lawyer and then the lawyer who represented the appellant/revision petitioner has told the appellant/revision petitioner that he lost track of the case because of lost of his dairy. Therefore, impugned order needs to be set aside.

9. He also pointed out that law on the point is very clear inasmuch as even in the absence of the appellant/revision petitioner, learned Judge in the First Appellate Court has to reassess the material evidence and then pass appropriate order. However, in the impugned order, no such reassessment is forthcoming which has resulted in miscarriage of justice and sought for allowing the revision petition.

10. Per contra, Smt.Waheeda M.M., learned High Court Government Pleader while admitting the proposition of law that a fair opportunity is to be granted to the appellant/revision petitioner and in the absence of appellant/revision petitioner, the First Appellate Court has to reassess and pass appropriate orders.

11. She further contended that even after granting eleven adjournments, when learned counsel for the appellant/revision petitioner failed to appear before the Court, the impugned order is passed and submits to the Court that suitable order is to be passed in the facts and circumstances of the case.

12. Having heard the parties in detail, this Court perused the material on record meticulously.

13. On such perusal of the material on record, material on record especially the order sheet of the First Appellate Court, there is no doubt that the appellant/revision petitioner has neglected to address the arguments on merits of the matter.

14. Even in the absence of appellant/revision petitioner, the First Appellate Court is required to pass the judgment on merits by reassessing the material evidence on record. Said proposition of law was emphasized by this Court time and again inclu