Criminal appeals cannot be dismissed for non-prosecution due to absence of accused or counsel; court must appoint amicus curiae to protect liberty and ensure fair hearing.

JUDGMENT :

SANDEEP SHARMA, J.

Being aggrieved and dissatisfied with the order dated 29.11.2025 passed by learned Additional District Judge-II, Solan, Himachal Pradesh, whereby appeal, having been filed by the petitioner against the judgment dated 31.01.2025, passed by the learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P., in criminal case No.45/3 of 2020, titled as “ The HPSCB Vs. Ramesh ”, came to be dismissed in default, petitioner has approached this Court in the instant proceedings filed under Section 438 of BNSS, praying therein to set aside the aforesaid order and restore the appeal filed under Section 415 of .

2. Learned Counsel representing the petitioner fairly states that on account of some unavoidable circumstances, petitioner was unable to come present on the date of passing of the impugned order and he was under impression that his counsel will come present and seek further time, however, learned Appellate Court, taking note of his absence as well as his counsel, dismissed the appeal for want of prosecution.

3. To the contrary, Mr. Narender Singh Thakur, learned counsel for the respondent, supported the impugned order. He submitted that since petitioner/accused had not come present to pursue his appeal, no illegality can be said to have been committed by the Court below, while passing impugned order. He submitted that in criminal proceedings complainant and accused, unless exempted, are always under obligation to put in appearance on each and every date.

4. Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 29.11.2025, case was listed for appearance of petitioner/appellant. No doubt, perusal of the zimni order placed on record reveals that on 29.11.2025, matter was called several times, enabling petitioner/appellant or his counsel to come present, but since none came present on behalf of appellant, learned Appellate Court proceeded to dismiss the appeal for want of non-prosecution, but certainly learned Appellate Court ought not have straightway proceeded to dismiss the appeal, rather in such a situation, Court could either issue fresh notice to the appellant or its counsel, specifically calling upon him to come present or his counsel, or could have adjourned the matter for a later date.

5. Having taken note of effect of dismissal of appeal for non-appearance of accused, Hon'ble Apex Court in case titled Md.Sukur Ali vs State Of Assam , 2011 (4) SCC 729, held that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused, rather in such a situation, Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date. Relevant Para of afore judgment read as under:

“5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.

6. In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in