The main legal point established is that the appeal against acquittal can be heard in the absence of the accused by appointing a legal aid counsel/amicus curiae, based on the interpretation of relevant provisions of the Cr.P.C. and conflicting judicial precedents.

JUDGMENT :

Tarlok Singh Chauhan, J.

The instant appeal has been preferred by the State assailing the judgment dated 29.04.2011, passed by the learned Sessions Judge, Sirmaur District at Nahan, thereby acquitting the accused/respondent for the office punishable under Section 376 of the Indian Penal Code.

2. Leave to appeal was granted by the Court on 24.11.2011 and while admitting the appeal, bailable warrants against the respondent in the sum of Rs. 20,000/- with one surety in the like amount were issued. Despite various efforts made by the State, bailable warrants could not be served, therefore, the State filed an application being Cr.MP No. 1517 of 2018 for declaring the accused/respondent as proclaimed offender. The application was allowed on 25.10.2018 and the respondent was accordingly declared as proclaimed offender and thereafter proclamation as required under Section 82(2) of the Cr.P.C. also stood issued but the accused/respondent failed to put in appearance.

3. When the appeal came up for consideration before the Court, the question arise as to whether the appeal against acquittal could be heard on merit in absence of the respondent/accused, who had been declared as proclaimed offender by appointing legal aid counsel/amicus curiae or is required to be adjourned sine die till the actual service of the accused/respondent.

4. It is after hearing arguments of the learned Additional Advocate General on this question, that the order came to be reserved.

5. At the outset, it may be observed that once leave to appeal is granted to the State, such appeal acquires the same status, as is conferred on the accused, who challenged the order of conviction and sentence in terms of Section 374 Cr.P.C. The presence of the accused even though he has been acquitted by the learned Trial Court is imperative before the Appellate Court, because, if after the order of acquittal, he flees, then he would be successful in defeating and deflecting the course of justice. After grant of leave by the Appellate Court, it is for the accused to contest the appeal and support the order passed by the learned Trial Court.

6. It is more than settled position of law that an appeal is continuation of the Trial Court proceedings and the order of conviction or acquittal if it is challenged either by the accused or the State, as the case may be, will become final only after the decision is given by the Appellate Court(s).

7. Whether the appeal against the acquittal can be heard against the respondent in absence of service of notice being effected upon him, came up firstly before a Division Bench of the Hon'ble Nagpur High Court in State Government Madhya Pradesh vs. Vishwanath Nidhanji and others AIR 1954 Nagpur 231, wherein it was held that before an appeal against an acquittal can be heard against the respondent, he must be served with a notice, even if he may be absconding and that would be no ground for hearing the appeal in his absence. The Court may issue a proclamation against an absconding respondent, declaring him proclaimed offender but the same is not taken as substituted service.

8. It shall be apt to reproduce the relevant observations as contained in para-11 of the judgment, which read thus:-

11. These decisions of their Lordships leave no doubt whatsoever that before an appeal against an acquittal can be heard against a respondent, he must be served with a notice under Section 422, Criminal P.C. It may be that a respondent may be absconding nevertheless that would be no ground for hearing an appeal in his absence. Where a person accused of an offence is absconding, Section 87, Criminal P. C. empowers the Court to issue a proclamation against him. Issue of a proclamation however is not equivalent to a substituted service. Indeed, as was pointed out in - 'Cri. Appeal No. 253 of 1949, D/- 21-7-1950 (Nag) (A)', the Criminal P. C, does not set out the procedure to be adopted where personal service of the notice under Section 422, Criminal P. C., cannot be effe