The High Court erred in dismissing the appeal for default without appointing an amicus curiae and in relying on statements made to the investigating officer, which are legally forbidden as evidence.

K.T. Thomas, J. - Leave granted.

Twelve persons stand convicted by a Sessions Court under Section 395 of the Indian Penal Code and all of them were sentenced to undergo rigorous imprisonment for 10 years. All of them jointly filed an appeal before the High Court of Patna in August, 1986. It appears that the High Court had suspended the sentence passed on the appellants pending disposal of the appeal. On 3.8.1998 the appeal stood listed before a Single Judge of the High Court. But the counsel engaged by the appellants did not turn up and hence learned Single Judge proceeded to hear the counsel for the State alone and then dismissed the appeal on merits. Appellants have therefore come up to this Court aggrieved by aforesaid judgment of the High Court.

2. Shri P.S. Mishra, learned Senior Counsel who argued for the appellants did not endeavour to justify the absence of the counsel for the appellants before the High Court when the case was called for arguments, nor are we interested in knowing why the counsel did not turn up. The appellants should have engaged a responsible counsel to argue their appeal in the High Court, as they now put the blame on the Advocate whom they engaged there. No doubt the High Court could have reported the dereliction of the advocate to the Bar Council concerned for appropriate action in the matter.

3. When the counsel engaged by the appellants in a criminal appeal does not turn up there is no obligation for the court of appeal to wait for him or even to adjourn the case awaiting his presence. The earlier view of a two Judge Bench of this Court in Ram Naresh Yadav and others v. State of Bihar, AIR 1987 Supreme Court 1500 : that in such a situation the court could only dismiss the appeal for default, has been held erroneous by a three Judge Bench of this Court in Bani Singh and others v. State of U.P., 1996(4) SCC 720. A.M. Ahmadi, CJ, speaking for the Bench, has stated the legal position thus :

"The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case (AIR 1987 SC 1500) that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution."

4. Nonetheless the learned Chief Justice hastened to add that if the counsel is absent there is nothing in law which precludes the court of appeal from appointing another counsel at States expense to assist the court. The following observations of the bench are pertinent :

"We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so."

5. The question before us is whether there was miscarriage of justice on the fact situation in this case as the learned Single Judge of the High Court proceeded to decide the appeal unaided by the arguments of an advocate at least by appointing as Amicus Curiae to assist the court. On a deeper analysis we feel that there was miscarriage of justice in this case. To substantiate it, we make a brief reference to the facts of the present case.

6. According to the prosecution story, a dacoity was committed in the house of the informant on the night of 16.11.1980, by a large number