IMPORTANT POINT
The appellate court cannot dismiss a conviction appeal for non-appearance; it must appoint amicus curiae and decide the appeal on merits, safeguarding the accused's right to liberty.

JUDGMENT :

Sanjeev Kumar, J.

1. The petitioner has invoked the revisional jurisdiction of this Court under Section 397 of Code of Criminal Procedure to assail the order dated 29.09.2021 passed by the court of 1st Additional District Judge, Srinagar ("appellate court") in a criminal appeal titled Mohammad Aslam Shah Vs. State, whereby the appeal of the petitioner against the order and judgment of conviction passed by the Sub-Judge Spl. Mobile Magistrate, Srinagar ("trial court") has been dismissed in default.

2. The impugned order of the appellate court is challenged by the petitioner primarily on the ground that there is no provision in the Code of Criminal Procedure which empowers the appellate court to dismiss the conviction appeal other than on merits.

3. It is submitted by learned counsel for the petitioner that the criminal appeal against the order of the trial court cannot be dismissed by the appellate court for non-prosecution on account of absence of the appellant- convict. He argues that in such situation where the appellant-convict does not appear on the date the appeal is called for hearing, the only option to the appellate court is to appoint amicus curiae and decide the appeal on merits. He further submits that if the appellant-convict is on bail granted by the appellate court, he is bound to adhere to the terms and conditions of the said bail and violation thereof may entail securing of his presence through bailable or non-bailable warrant.

4. Per contra, Mr. Dar, Sr. AAG could not point out any provision from the Code of Criminal Procedure to demonstrate that the order passed by the appellate court is sustainable in law and that if the appellant-convict fails to appear in the appeal, his appeal could be dismissed in default.

5. Having heard learned counsel for the parties and perused the material on record, I am of the view that the order impugned is not sustainable. As is correctly contended by learned counsel for the petitioner that the Code of Criminal Procedure does not contain any provision empowering the appellate court, hearing the appeal against the conviction, to dismiss the same in default or for non-prosecution.

6. If the appellant, who has filed the conviction appeal, does not appear on the date of hearing of the appeal, the only course available to the court is to appoint amicus curiae and decide the appeal on merits. In a case where the appellant-convict is on bail and does not appear before the court, it could be a case of non- compliance of the terms and conditions of the bail; in such situation the appellate court is well within its powers to secure the presence of the appellant-convict through bailable or non-bailable warrant, as it may deem fit.

7. The view, which I have taken herein, is supported by the judgment of the Hon'ble Supreme Court in case Kabira Vs. State of Uflar Pradesh (1981) Supp. SCC 76. The relevant extract from Para 2 of the judgment of Kabira (supra), which deals with the point in issue, is reproduced herein-under:-

".........We are, therefore, of the view that there has not been a proper disposal of the appeal preferred by the appellant. The appeal could not be dismissed by the learned Judge for default of appearance. If the appellant was not present, the learned Judge should have appointed some advocate as amicus curiae and then proceeded to dispose of the appeal on merits. The order dated August 7, 1979 passed by the learned Judge dismissing the appeal, as also the reasoned judgment bearing the date August 7, 1979 given by the learned Judge must accordingly be set aside."

8. The Hon'ble Supreme Court was confronted with the similar issue in the case of Mohd. Sukur Ali Vs. State of Assam (2011) 4 SCC 729 and in Para 17 it concluded thus:-

"We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practicing on the criminal side as amicus curiae an