An appellate court must consider the merits of an appeal and cannot dismiss it for non-prosecution or absence of the appellant or counsel per the Criminal Procedure Code.

ORDER :

MOHAMMED SHAFFIQ, J.

The present Criminal Revision Petition has been filed challenging the judgment of Additional District Judge (FTC), Theni in Crl.A.No.137 of 2024 dated 26.11.2024, whereby, it was observed that appellant, i.e., petitioner herein, was called absent; there was no representation in appeal and appeal was dismissed summarily. Relevant portion of judgment reads as under:

“Appellant called absent. No representation, Perused, This Appeal is dismissed summarily.”

2. The short question that arises for consideration in the present revision is as to whether it is open to Appellate Court to dismiss the appeal summarily on the premise that appellant is called absent and is not represented by any counsel. The above question is no longer res integra and stands resolved by a series of judgments of the Supreme Court and other High Courts.

3. However, before I proceed to answer the above question, it may be relevant to give a brief overview of the case.

3.1. The defacto complainant Prakash/PW.1 is the son of the injured witness, Ammavasi/PW.2. Case of prosecution is that petitioner/accused Mokkaiyan habitually consumes alcohol and uses abusive language in the street and involved in street brawl/quarrel. P.W.2 Ammavasi reproached such behaviour on numerous occasions. On 09.02.2022, at about 07.30 p.m., when Ammavasi was standing near Vinayagar Temple tree in Rajadhani Kaliamman Temple Street, accused arrived at the spot, abused Ammavasi and immediately took out a concealed aruval and attacked him, causing a bleeding injury on the right side of his head. When the accused attempted to strike again on the head, P.W.2 blocked the blow with his left hand. On the basis of complaint given by P.W.1, FIR was registered in Crime No.37 of 2022 for offences under Section 294 (b) and 307 of IPC . On completion of investigation, charge sheet was filed in P.R.C.No15 of 2022 before Judicial Magistrate, Andipatti and the case was committed to Principal District Sessions Court, Theni. Thereafter, case was numbered in S.C.No.136 of 2022 and transferred to Assistant Sessions cum Chief Judicial Magistrate, Theni.

4. Assistant Sessions cum Chief Judicial Magistrate, Theni, by order dated 30.08.2024 passed in S.C.No.136 of 2022, acquitted the petitioner of offence under Section 294 (b) of IPC and convicted for offence under Section 307 of and sentenced him to undergo four years rigorous imprisonment and to pay a fine of Rs.2000/-, in default to undergo three months simple imprisonment.

4.1. Aggrieved, petitioner filed an appeal before Additional District Judge (FTC), Theni in Crl.A.No.137 of 2024. However, appeal came to be dismissed summarily by merely recording ''Appellant called absent. No representation, Perused, This Appeal is dismissed summarily''.

4.2. It is against the above order of summary dismissal by Appellate Court, the present revision has been filed on the premise that once the Appellate Court has admitted the appeal, it ought to be decided on merits and it is impermissible for the Appellate Court to dismiss the appeal for non-prosecution or for non-appearance of appellant or his counsel.

5. The above question, as stated supra, is no longer res integra and stands resolved by the judgment of three Judges Bench of the Supreme Court inBani Singh and others Vs. State of U.P. reported in(1996) 4 SCC 720. The Supreme Court in Bani Singh's case while dealing with the question as to whether it is permissible to dismiss an appeal for non- prosecution, overruled the earlier decision inRam Naresh Yadav Vs. State of Bihar rep