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2025 Supreme(Raj) 1935
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
MANOJ KUMAR GARG, J.
Firm Jehtmal & Sons Through its Proprietor Jethamal S/o Omprakash Tater – Appellant
Versus
State Of Rajasthan, - Respondent
S.B. Criminal Revision Petition No. 841 of 2025
Decided on : 11-07-2025
Advocate Appeared:
For the Appellant : Ms. Oshin Sharma
For the Respondent: Mr. Virkam Singh Rajpurohit, PP
Appeals cannot be dismissed for non-prosecution; the principle of natural justice demands fair hearing and representation.
Headnote:(A) Limitation Act - Section 5 - Non-appearance in appeals - Principle of natural justice - The court emphasized that the doctrine of 'audi alteram partem' requires that no individual should be condemned unheard. Denying an appeal due to counsel's negligence undermines judicial integrity. (Paras 12, 14)
(B) Criminal Procedure Code - Sections 385-386 - Dismissal of appeals - The court ruled that appeals cannot be dismissed for non-prosecution without consideration of the merits adjudicated based on a proper opportunity for both parties to present their case. (Paras 16)
Facts of the case:
The petitioner filed a revision against the dismissal of the appeal for non-prosecution by the learned Judge, leading to an arrest warrant based on previous conviction under the N.I. Act.
Findings of Court:
The appellate court's order was mechanical, lacking due diligence or reasoning, thus warranting remand for a fresh hearing.
Issues: The main issue concerns the dismissal of an appeal without merit consideration and the right to fair representation.
Ratio Decidendi: The court affirmed that appeals must be decided based on merits, honoring the principles of natural justice, especially in light of counsel's absence.
Result: The impugned order was set aside, and the case was remanded for a fresh hearing with directions.
Order :
MANOJ KUMAR GARG, J.
An application (01/25) under Section 5 of the Limitation Act has been filed by the counsel for the petitioner.
For the reasons mentioned in the application, the same is hereby allowed.
Delay in filing the criminal revision petition is hereby condoned.
Heard on revision petition.
1. The instant revision petition has been filed by the petitioner against the order dated 23.08.2022 passed by the learned Addl. District & Session Judge No.7, Bikaner, in Criminal Appeal No.133/2021, by which the learned Judge has rejected the appeal for non appearance and the learned trial Court vide order dated 29.11.2024 issued arrest warrant against the petitioner.
2. Learned counsel for the petitioner submits that the learned Special Judge, N.I. Act No.2, Bikaner vide order dated 22.07.2021 has convicted the present petitioner for offence under Section 138 of N.I. Act and sentenced him for one year’s simple imprisonment and a fine of Rs.8 Lacs. Against the said conviction order, the petitioner has filed an appeal before the learned Addl. District & Sessions Judge No.7, Bikaner, which was dismissed vide order dated 23.08.2022 for non prosecution and without giving any proper opportunity of hearing. Counsel further submits that no appeal, against the conviction, can be dismissed on the ground of non-prosecution, whereas it will be decided on merits. In such circumstances, the order dated 23.08.2022 may be quashed and set aside and the matter may kindly be remanded back to the learned Addl. District & Sessions Judge No.7, Bikaner for deciding afresh after hearing the petitioner and in accordance with law.
Per contra, learned counsel Public Prosecutor opposed the prayer made by the counsel for the petitioner.
3. I have considered the submissions advanced before me and carefully gone through the material available on record.
4. It is well settled by a catena of decisions that doctrine of ‘audi alteram partem’ contemplates that no one should be condemned unheard. This principle embodies the foundational tenet of natural justice, ensuring fairness and preventing arbitrary decisions. Furthermore, numerous rulings affirm that a party should not be penalized or prejudiced due to the negligence or misconduct of their legal counsel. The rationale underpinning this position is rooted in the recognition that the integrity of judicial proceedings depends on the principles of fairness and justice. Allowing a party to suffer consequences arising solely from counsel’s negligence would undermine these principles, as it would unjustly penalize an individual for circumstances beyond their control. It also emphasizes that the onus of ensuring proper representation ultimately rests with the party, and that justice should not be compromised by procedural lapses attributable to counsel. Consequently, these doctrines collectively serve to uphold the fairness, transparency, and integrity of judicial processes.
5. In the case of Bani Singh and others v. State of U.P. reported in AIR 1996 SC 2439 has observed as under:-
“.....It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385- 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law
