Allowed

K.P. Varghese v. Abdul Khader

Kerala HC11 Sept 2018Crl.Rev.Pet/1498/2012

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, setting aside the conviction and sentence passed by the appellate court because the appeal was disposed of without hearing the appellant or his counsel and without appointing an amicus curiae. The matter was remitted for afresh disposal.

What did the court decide?

Conviction and sentence set aside; matter remitted to appellate court for afresh disposal after hearing counsel or amicus curiae within four months.

K.P. Varghese Vs Abdul Khader — Criminal Trial and Appeal | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

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TUESDAY ,THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940

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Crl.Rev.Pet.No. 1498 of 2012

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AGAINST THE ORDER/JUDGMENT IN CRA 685/2011 of ADDL.SESSIONS COURT (ADHOC-III),NORTH PARAVUR DATED 02-04-2012

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AGAINST THE JUDGMENT IN ST 320/2010 of J.M.F.C.- III, ALUVA

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REVISION PETITIONER/S:

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K.P. VARGHESE

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S/O. POULOSE, KIZHUTHARA HOUSE, NEAR P & P INDUSTRIES, MANJAPRA P.O., PIN-683581.

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BY ADV. SRI. ROY CHACKO

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RESPONDENT/S:

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1 ABDUL KHADER S/O. OORAN, KARAKKATTU HOUSE, CHOWARA, NOW RESIDING AT KARAKKATTU HOUSE, NO. 1/145 (NO.55), VELAYAMPARAMBIL ROAD,THOTTAKKATTUKKARA, ALUVA-683108.

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2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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BY ADV. SRI. V.M. ALI

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OTHER PRESENT:

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PUBLIC PROSECUTOR E.C BINEESH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER

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The revision petitioner was convicted and sentenced by the courts below under Section 138 of the

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Crl.Rev.Pet.No. 1498 of 2012

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Negotiable Instruments Act, 1881 (“the N.I.Act” for short).

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Heard.

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The learned counsel for the appellant has submitted that the appellant or his counsel was not heard before passing the judgment by the appellate court and in the said circumstances, serious prejudice had been caused to the appellant.

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It is not stated in the judgment of the appellate court that the appellant was not heard. However, it is not stated in the judgment that anybody was heard. An affidavit had been filed by the counsel for the appellant stating that he was not present before the court when the case was taken up for judgment. It is further stated in the affidavit that neither the appellant nor his counsel was heard before disposing of the appeal. A three Judge Bench of the Apex Court in Shridhar Namdeo Lawand v. State of Maharashtra [2013 KHC 4659] held that the court should not decide criminal cases in the absence of the counsel for the accused as an accused in a criminal case should not suffer for the fault

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Crl.Rev.Pet.No. 1498 of 2012

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of his counsel and the Court should, in such a situation appoint another counsel as an amicus curiae to defend the accused.

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The Apex Court in L. Laxmikanta v. State [(2015) 4 SCC 222] held that the Court should not dispose of the appeal without hearing the appellant or his counsel and if the appellant or his counsel is not present, the court has to appoint an amicus curiae before disposing of the appeal on merits.

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In this case, the revision petitioner or his counsel was not heard by the appellate court before passing the judgment. The revision petitioner had taken various contentions in the memorandum of appeal. However, the said contentions were not considered by the appellate court. The appellate court also did not appoint any lawyer as an amicus curiae before disposing of the appeal on merits. In the said circumstances, I am of the view that it is only just and proper to remit the matter to the appellate court to enable the appellate court to pass judgment afresh after hearing the counsel for the appellant or the amicus curiae as the case may be. For

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Crl.Rev.Pet.No. 1498 of 2012

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the said reason, the conviction and sentence passed by the appellate court cannot be sustained and consequently, I set aside the same.

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In the result, this Revision Petition stands allowed, setting aside the conviction and sentence passed by the appellate court and the matter is remitted to the appellate court for disposal of the appeal afresh in accordance with law, after hearing the counsel for the appellant or the amicus curiae, as the case may be, as expeditiously as possible and at any rate within four months from the date fixed for the appearance of the revision petitioner before the appellate court.

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The parties shall appear before the appellate court on 1-11-2018, without further notice.

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Dated this the 11^th day of September, 2018.

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Sd/-B.SUDHEENDRA KUMAR,JUDGE

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ani/

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/true copy/

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P.S. to Judge

K.P. Varghese v. Abdul Khader

Case brief

What is this about?

What did the court decide?

K.P. Varghese v. Abdul Khader

Case brief

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