Question: A, an accused is convicted by the trial court. Being aggrieved by the order of conviction passed by the trial court, convict A prefers an appeal in the appellate court. The appeal is admitted by the appellate court. But on the date of the hearing fixed by the appellate court, neither the appellant nor his lawyer appears before the appellate court. The appellate court further fixed the date of the hearing.
Again neither appellant nor his lawyer appeared before the appellate court. The appellate court dismissed the appeal without going into the merit of the case, on the ground of the non-appearance of the appellant or his lawyer. Is the order of dismissal passed by the appellate court legal? Give reasons in support of your answer and refer to case law, if any, to the point.
Find the answer only on Legal Bites. [A, an accused is convicted by the trial court. Being aggrieved by the order of conviction passed by the trial court, convict A prefers an appeal in the appellate court… The appellate court dismissed the appeal without going into the merit of the case, on the ground of the non-appearance of the appellant or his lawyer. Give reasons]
An individual should be given a proper opportunity to present his side of the case before a decision is reached. All courts are bound to follow the principles of natural justice.
Section 386 of CrPC defines the powers of the appellate Courts in dealing with appeals. As observed in the case of Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 73 Bom LR 36 (SC) the Code gives ample powers to the Courts to alter or amend a charge, whether by the trial Court or by the appellate Court, provided that the accused is not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about the charge or in not giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him.
It was held in Bani Singh v. State of UP, AIR 1996 SC 2439 that the appellate Court can dismiss the appeal only on the merits and has no power to dismiss it summarily. Even where the appellant and his counsel both absented themselves on the day fixed for the hearing of the appeal, it was held that the Court was not bound to adjourn the hearing and had to dispose of the appeal on merits. The Code does not contemplate the dismissal of the appeal for non-prosecution.
In KS Panduranga v. State of Karnataka, AIR 2013 SC 2164, the Supreme Court culled out the following principles –
that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;
that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer is absent;
that the court may, as a matter of prudence or indulgence, adjourn the matter, but it is not bound to do so;
that it can dispose of the appeal after perusing the record and judgment of the trial court;
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, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in the law would preclude the court from doing so; and
that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.
It is a basic rule of natural justice that before a case is decided by the court, the parties to the case must be given a reasonable opportunity of being heard. Therefore, applying the decisions of the aforesaid judgment to the present case at hand where the appellate court dismissed the appeal without going into the merit of the case, on the ground of non-appearance of the appellant or his lawyer. The order of dismissal is not sustainable at law by virtue of section 386 of the CrPC.
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