Back
2016 Supreme(Mad) 63
IN THE HIGH COURT OF MADRAS MADURAI BENCH
M. Venugopal, J.
D. Appinackkar – Appellant
Vs.
State – Respondent
Crl. R.C. (MD) No. 545 of 2015
Decided On : 6-1-2016
Advocate Appeared:
For The Appellant: G. Karuppasamy Pandian.
For The Respondent:P. Kandasamy, Government Advocate.
Headnote:
Criminal Revision Petition - Delay of 4 years - Dismissal of Criminal Appeal – Power of Appellant and Revision Courts - Appellant contended that trial court failed to see delay of 4 years in registering case - Further, appellant contended that amount is very meager and there was a communal violence at time of payment and same was also accepted by all witnesses - Petitioner/Appellant urges before this Court that before appellate court, neither Revision Petitioner/Appellant had appeared nor his counsel had appeared to address arguments in Criminal Appeal and in fact, appellate court in its judgment in C.A. at, had inter alia observed - Held, A Criminal Court namely an Appellate court or a Revisional court has no power to dismiss appeal or revision for default, where counsel for appellant had not appeared, then Court would appoint some advocate as amicus curiae and determine appeal on merits - It cannot be brushed aside that right of an Appeal is a statutory one of an accused especially in a criminal case, where the issue of conviction and sentence is involved - Court comes to an inevitable conclusion that the dismissal of C.A., in absence of Revision Petitioner/Appellant not advancing his arguments and also his counsel not appearing in Appellate court, is not a proper one and because of reason appeal was not decided on merits - Sets aside judgment of Appellate court to prevent an aberration of justice and to promote substantial cause of justice - Criminal Revision Petition is allowed.
1. The Revision Petitioner/Appellant/Accused has preferred the instant Criminal Revision Petition as against the judgment dated 27.04.2015 in C.A. No. 18 of 2013 in C.C. No. 92 of 2002, passed by the Learned IV Additional District and Sessions Judge, Madurai.
2. The Learned IV Additional District and Sessions Judge, Madurai, while passing the impugned judgment in C.A. No. 18 of 2013 (filed by the revision petitioner as the appellant) on 27.04.2015, at paragraph No. 3, had observed the following:
"The appellant contended that the trial court failed to see the delay of 4 years in registering the case. Further, the appellant contended that the amount is very meager and there was a communal violence at the time of payment and the same was also accepted by all the witnesses."
Ultimately dismissed the appeal, thereby confirmed the judgment in C.C. No. 92 of 2002 dated 10.06.2013, passed by the Learned District Munsif-cum-Judicial Magistrate No. I, Usilampatti.
3. Being dissatisfied with the judgment dated 27.04.2015 in C.A. No. 18 of 2013, passed by the Learned IV Additional District and Sessions Judge, Madurai, the Revision Petitioner/Appellant/Accused as an aggrieved person, has preferred the instant Criminal Revision petition before this Court.
4. The Learned Counsel for the Revision Petitioner/Appellant urges before this Court that before the appellate court, neither the Revision Petitioner/Appellant had appeared nor his counsel had appeared to address arguments in Criminal Appeal No. 18 of 2013 and in fact, the appellate court in its judgment in C.A. No. 18 of 2013, dated 27.04.2015, at paragraph No. 3, had inter alia observed as under:
"The accused also has not chosen to advance his argument despite sufficient chances and notice was also served on the appellant's counsel. Hence, this court holds that the above appeal is liable to be dismissed."
Consequently dismissed the appeal by confirming the judgment of the trial court passed in C.C. No. 92 of 2002, dated 10.06.2013.
5. Added further, the Learned counsel for the Revision Petitioner/Appellant brings it to the notice of this Court that the appellate court in its judgment in C.A. No. 18 of 2013, dated 27.04.2015 at paragraph No. 3 had observed among other things as under:
"The appellant contended that the trial court failed to see the delay of 4 years in registering the case. Further, the appellant contended that the amount is very meager and there was a communal violence at the time of payment and the same was also accepted by all the witnesses. Though these contentions were raised by the appellant the trial court answered that the delay of 4 years cannot be a valid ground to disbelieve the prosecution version which proved the non payment and the commission of the offence and the absence of any evidence by the accused to adduce the existence of communal violence as the valid reasons for the delay in registering the case. This Court also is not able to find any evidence on the side of the accused except the alleged admission of the prosecution witnesses about the communal violence and that the prosecution case cannot be rejected on the ground that the amount is very meagre as contended by the accused. The accused also has not chosen to advance his argument despite sufficient chances and notice was also served on the appellant's counsel. Hence, this court holds that the above appeal is liable to be dismissed."
Contends that when the Appellate court in its judgment had stated at the end of paragraph No. 3 that the accused (appellant) had not chosen to advance his arguments, despite sufficient chances and notice was also served on the appellant's counsel etc., then, it was observed at the beginning of paragraph No. 3 of the judgment in Criminal Appeal that the appellant contended that the trial court failed to see the 4 years delay in registering the case etc.,' is mutually a contradictory one, which exhibits prima facie non-application of mind.
6. At this stage, the Learned Counsel
