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2002 Supreme(Guj) 91
Gujarat High Court
Judgename :D.P.Buch
AMRATBHAI LILABHAI DESAI - Appellant
Versus
STATE - Respondent
CRIMINAL REVISION APPLICATION 56 of 2002
Decided On : 02/01/2002
Headnote:Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sec. 397 read with Sec. 401 — Revision against dismissal of appeal against conviction recorded by Metropolitan Magistrate — Only point argued is that petitioner had engaged a counsel to argue his case in appeal before Sessions Court but advocate did not appear before Sessions Court for reasons not known — Learned Sessions Judge also did not appoint any advocate on behalf of appellant to place the case of appellant before him — Appellant, therefore, deprived of his statutory right to plead his case and prove his innocence on the principle enumerated in Ram Naresh Yadav vs. State of Bihar, reported in AIR 1987 SC 1500, squarely applies on judgment and order of Sessions Court — In view of the matter and in the facts and circumstances of the case as also considering the principle enunciated by Apex Court in Ram Naresh Yadav vs. State of Bihar, (Supra), the impugned Judgment & Order of the Sessions Court requires to be quashed and set aside and the matter is required to be remanded to Sessions Court for decision on merits — However, considering the problem created by advocate by his absence and giving no reason before referring matter to Bar Council, Court orders to issue show-cause notice to him.
In the case on hand the appeal has been dismissed on merit and judgment and order recorded by the learned trial Judge have been confirmed without hearing the petitioner or his advocate and without appointing advocate to argue out the case of the petitioner. In above view of this fact situation it is clear that the Sessions Court should have dealt with the said appeal and in accordance with the decision of AIR 1987 Supreme Court 1500 which has not been done. This has resulted in some sort of injustice to the present petitioner as his case was not put forward in proper perspective. Therefore, the stigma of the conviction has continued to be with him.
[Para 9]
In view of the matter and in the background of facts and circumstances of the case as also considering the principle enunciated in AIR 1987 Supreme Court 1500, the said judgments and orders of the Sessions Court are required to be quashed and set aside and the matter is required to be remanded to the Sessions Court for decision on merits, according to law and in accordance with the observation made by the Honble Supreme Court in AIR 1987 Supreme Court 1500. At the same time, because of absence of the advocate before the Court of appeal, the petitioner was required to rush to this Court, and in turn, this Court is required to remand the matter back to the Sessions Court. This also shows that even the time of the Sessions Court has been wasted and the Sessions Court will be required to hear and dispose of the matter afresh again. There is nothing on record to show that the advocate was sick or he was busy with his personal/social work. It is required to be noted that the absence of advocate on account of his engagement in another matter in another Court will not be a ground for adjourning any case pending in a particular Court. However, in the present case Court does not find anything on record to show that advocate, was busy with his social work or he was sick. Therefore, in the interest of justice and with a view to protect the interest of the present petitioner Court is of the opinion that the matter should be taken up by the Bar Council for appropriate decision in the matter. At the same time before referring the matter to the Bar Council a notice should be issued by this Court to the said advocate to show-cause as to why the matter should not be referred to the Bar Council for disciplinary action against him.
[Para 10]
( 1 ) ). This is a Revision Application filed under Section 397 read with 401 of the Criminal Procedure Code (for short "the Code"), challenging the judgment and order dated 7. 1. 2002 recorded by the learned Additional Sessions Judge, Court No. 10 in Criminal Appeal No. 15/1999 under which the learned Judge dismissed the said appeal and confirmed the judgment and conviction order dated 18. 1. 1999 recorded by the learned Metropolitan Magistrate, Court No. 10, Ahmedabad City, in Criminal Case No. 1806/1997 whereby the learned Magistrate convicted the present petitioner for the offences punishable under Section 279, 304-A of the I. P. C. as well as for the offences punishable under Section 177 and 184 of the Motor Vehicles Act, and sentenced him to suffer S. I. for 3 months and fine of Rs. 500. 00 for the offence punishable under Section 279 of the I. P. C. The petitioner was directed to suffer further S. I. for 15 days in case the fine was not paid. For the offence punishable under Section 304-A of the I. P. C. the petitioner was sentenced to suffer S. I. for six months. He was directed to pay fine of Rs. 1,000. 00 and in case he did not pay the fine he was required to undergo further S. I. for 1 month. For the offences punishable under Section 177 and 184 of the Motor Vehicles Act the petitioner was directed to pay fine of Rs. 500. 00 and in default of payment of fine he was required to undergo S. I. for 15 days.
( 2 ) ). Looking to the contentions raised on behalf of the petitioner this Revision Application is being heard and disposed of finally with the consent of the learned advocates for the parties.
( 3 ) ). The learned advocate for the petitioner has taken a contention that the present petitioner had engaged advocate Mr. M. I. Laliwal in the aforesaid Criminal Appeal No. 15/1999 before the City Sessions Court, Ahmedabad. It is also contended by him that the learned advocate for the petitioner was not present when the above appeal was taken up by the learned Additional Sessions Judge for hearing and disposal. It is also contended by him that even the petitioner was not present before the said Court when the said appeal was heard. It is also argued by him that the petitioner was not informed by his learned advocate that the matter was fixed before the Sessions Court for hearing argument in the aforesaid appeal, Therefore, the Court had not heard either the appellant or his learned advocate. It is also argued by him that the learned Judge did not appoint any advocate on behalf of the appellant to place the case of the appellant before the Court of appeal. It is next contended by him that an appeal is a statutory right of a convicted accused person and it is also a right vested in him to plead his case before the Court of appeal and prove his innocence. It is also a right of the accused person to show that the learned trial Magistrate had committed some error in convicting the convict and this right could not be availed of when the advocate did not appear before the trial Court.
( 4 ) ). At the same time the learned advocate for the petitioner was not in a position to say as to why the learned advocate for the petitioner was absent at the time when the above matter was heard exparte by the Sessions Court. When an advocate has been engaged, by a party, then it is the duty of the advocate to see that he remains present before the Court concerned when the matter is posted for hearing. In case he is unable to attend the said Court he has to make some alternative arrangement to see that the matter is either heard or adjourned. Absence of an advocate without any intimation to the Court causes great deal of difficulty to the Court and hardship to the party. The difficulty to the Court is that the Court is never in know as to whether the advocate is absent on account of some good cause or his absence is without any cause. The Court also does not get a assistance of such an advocate at the trial or at the stage of hear
