S.Veeramani Vs State Of Tamilnadu Rep By Inspector Of Police, Thevaram

PRAYER: Criminal Revision Petition is filed under Section 438 r/w 442 of BNSS, 2023, to call for the records pertaining to the order passed in S.C. No. 18 of 2019 dated 19.06.2024 on the file of the Assistant Sessions Court cum Chief Judicial Magistrate, Theni confirmed by the Additional District Judge (FTC), Theni in Crl.A. No. 110 of 2024 dated 07.11.2024 and set aside the same.

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For Petitioner : Mr.M.Karunanithi For Respondent : Mr.P.Kottaichamy Government Advocate

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Crl.R.C(MD)No.292 of 2026

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O R D E R

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The present Criminal Revision Petition has been filed challenging the judgment of Additional District Judge (FTC), Theni in Crl.A. No. 110 of 2024 dated 07.11.2024, whereby, the appeal was dismissed summarily on the premise of non-prosecution. Relevant portion of judgment reads as under:

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“Appellant called absent. No representation by Advocate, sufficient time already given. Hence this Appeal is dismissed for non prosecution.”

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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.

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However, before I proceed to answer the above question, it may be relevant to give a brief overview of the case. The defacto complainant Gubendran/PW.1 is brother of the injured witness, Arivu @

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Crl.R.C(MD)No.292 of 2026 Karuppanan/PW.2. Case of prosecution is that petitioner/accused S.Veeramani and defacto complainant attended a funeral of Periyapandi in their village. At that time, a wordy quarrel arose between petitioner/accused and defacto complainant's sister's husband with regard dispute over money. Immediately, Arivu @ Karuppanan/PW.2 intervened and abused petitioner/accused. During the last rites of Periyapandi, when Arivu @ Karuppanan/PW.2 was standing near burial ground, accused arrived at the spot, abused Arivu @ Karuppanan/PW.2 and stabbed him on the left side of his stomach and fled from the scene of occurrence. On the basis of complaint given by P.W.1, FIR was registered in Crime No. 13 of 2018 for offences under Section 294(b) and 307 of IPC. On completion of investigation, charge sheet was filed in P.R.C.No.09 of 2018 and the case was committed and numbered in S.C.No.18 of 2019 on the file of Assistant Sessions Court cum Chief Judicial Magistrate, Theni.

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Assistant Sessions Court cum Chief Judicial Magistrate, Theni, by order dated 19.06.2024 passed in S.C.No.18 of 2019, acquitted the petitioner of offence under Section 294(b) of IPC and convicted for offence under Section 307 of IPC and sentenced him to undergo four years rigorous imprisonment and to pay a fine of Rs.1000/-, in default to undergo one month simple imprisonment.

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4.1. Aggrieved, petitioner filed an appeal before Additional District Judge (FTC), Theni in Crl.A.No.110 of 2024. However, appeal came to be dismissed summarily by merely recording '' Appellant called absent. No representation by Advocate, sufficient time already given. Hence this Appeal is dismissed for non prosecution'' .

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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.

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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 in Bani 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 nonprosecution, overruled the earlier decision in Ram Naresh Yadav Vs. State of Bihar reported in AIR 1987 SC 1500. In Ram Naresh Yadav's 4/13

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Crl.R.C(MD)No.292 of 2026 case, it was found that the Court can dismiss the appeal for nonprosecution and enforce disciplinary action against the erring Advocate or refer the matter to Bar Council. In Bani Singh 's case, it was held that the decision in Ram Naresh Yadav 's case was rendered without noticing the earlier decision in Shyam Deo Pandey and others Vs. State of Bihar reported in AIR 1971 SC 1606 , wherein, it was held that once the Appellate Court had admitted the appeal, it must be heard on merits and Appellate Court cannot dismiss the appeal for non-prosecution or for non-appearance of the appellant or his counsel. Relevant portion of the judgment in Shyam Deo Pandey 's case is extracted hereunder:

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''19. A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits so as to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the Court and the appeal is set down for hearing, it is essential that the appellate court should: (a) peruse such record; (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the appellate court has full power to pass any of 5/13

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Crl.R.C(MD)No.292 of 2026 the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present it is not obligatory on the appellate court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the appellate court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the appellate court has considered the appeal on merits.''

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(emphasis supplied)

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Thus divergent views were expressed by the Supreme Court in

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Ram Naresh Yadav and Shyam Deo Pandey. Divergence of opinion on the above aspect was resolved by the Supreme Court in Bani Singh's case, wherein, the Supreme Court overruled the decision in Ram Naresh Yadav' s case and approved the law laid down in Shyam Deo Pandey 's case. Relevant portion of the said decision is extracted hereunder:

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''14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and Section 386 mandates that after the record is received, the appellate

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Crl.R.C(MD)No.292 of 2026 court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. 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 : 1987 Cri LJ 1856] that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.''

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I also find support for the above position in the following judgments of the Supreme Court:

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a) K.Muruganandam and others Vs. State in Criminal Appeal No. 809 of 2021 dated 12.08.2021:

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The Supreme Court found that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed 7/13

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with the hearing of the case only after appointing an amicus curiae. Relevant portion of judgment is extracted hereunder:

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'' 8. It is well settled that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused (see Kabira vs. State of Uttar Pradesh and Mohd. Sukur Ali vs. State of Assam).''

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b) Shankar Vs. The State of Maharashtra in Criminal Appeal

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No.1106 of 2019 dated 23.07.2019:

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It was reiterated that once appeal against conviction is admitted, it

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is duty of Appellate Court either to appoint an Advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. Relevant portion of judgment is extracted hereunder:

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'' 5. When the accused has preferred the appeal against the conviction, the appeal can be disposed of on merits only after hearing the appellant or his counsel. When there was no representation for the appellant, in our considered view, the High Court ought not to have disposed of the case on merits. It was held in 2005 (11) SCC 185 titled Mangat Singh vs. State of Punjab that where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal. Once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services

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Authority and hear the matter on merits and then dispose of the appeal. When the appellant was not represented by the advocate, in our view, the High Court ought not to have decided the matter on merits and the impugned order is liable to be set aside and the matter is remitted back to the High Court. The High Court shall restore the Criminal Appeal No. 296 of 2014 and afford sufficient opportunity to the appellant and proceed with the matter in accordance with law. In case, if the appellant is still not represented, we request the High Court to nominate a counsel for the appellant through the Legal Services Authority and proceed with the matter.''

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From the above discussion, it leaves no room for any doubt that it is impermissible for an Appellate Court to dismiss for non-prosecution a criminal appeal filed against conviction on the premise that appellant is called absent or is not represented by a counsel. In view thereof, this Court has no hesitation in setting aside the judgment passed in the appeal. Accordingly, the judgment passed by Additional District Judge (FTC), Theni in Crl.A.No.110 of 2024 dated 07.11.2024 is set aside and the matter stands remanded to the Additional District Judge (FTC), Theni, who shall decide the appeal on merits. It is made clear that if for any reason, the appellant is not represented by counsel, appellant may request the Additional District Judge (FTC), Theni to nominate a counsel through Legal Services Authority and thereafter, proceed with the matter.

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It is submitted by learned counsel for petitioner that petitioner

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Crl.R.C(MD)No.292 of 2026 was on bail during pendency of appeal before the Additional District Judge (FTC), Theni. However, he is presently confined in Central Prison, Madurai and thus prayed for grant of bail. Learned Additional Public Prosecutor would submit that it is necessary that petitioner co-operates in proceedings before the Appellate Court, which was agreed to by learned counsel for petitioner.

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In the circumstances, this Court is of the view that since petitioner was on bail during pendency of appeal, he shall be enlarged on bail subject to the following conditions:

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i) Petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of Judicial Magistrate, Bodinayackanur;

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ii) Petitioner and sureties shall affix their photographs and Left Thumb Impression in the bond and the above said Court may obtain a copy of their Aadhaar card or Bank pass Book to ensure their identity;

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iii) Petitioner shall appear and sign before Judicial Magistrate, Bodinayackanur, on the first working day of every month at 10.30 a.m., until the disposal of appeal;

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iv) In case, petitioner is not able to appear before the said Court on any day, he shall make arrangements to file an application under Section 317 Cr.P.C. (corresponding to 355 B.N.S.S) and shall appear before the said Court on any other day in lieu of the date of his absence, as directed by the said Court.

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