Illegal to dismiss criminal appeals for default or non-prosecution: HC

It grossly violates the right guaranteed under Article 21, says the judge

It is illegal on the part of lower appellate courts to dismiss appeals filed by convicts in criminal cases just because their lawyers have failed to conduct the cases despite repeated adjournments, the Madras High Court Bench here has ruled.

Allowing a criminal revision case, Justice S. Nagamuthu held that the appellate courts could dispose of appeals only on merits either on self appreciation of the trial court verdict or after ordering appointment of another counsel for appellant at State expense.

“In short, I have to say, dismissal of a criminal appeal, preferred by a convict, by the appellate court, for default or non-prosecution is illegal as it grossly violates the right guaranteed under Article 21 (protection of life and personal liberty) of the Constitution,” the judge observed.

He recalled that in 1996, a three-judge Bench of the Supreme Court, led by the then Chief Justice of India A.M. Ahmadi, had stated that the law expected appellate courts to dispose of appeal on merits after cross-checking the reasoning given by trial courts with the evidence on record.

Much before that, former Supreme Court judge V.R. Krishna Iyer, in a judgement penned by him in 1978, had observed that providing an opportunity to a convict to conduct his case by engaging a counsel at State expense formed part of fair procedure implicit in Article 21 of the Constitution.

“In the instant case, I regret to say that the lower appellate court, in total disregard to the above law declared by the Supreme Court, has simply dismissed the appeal for default,” Mr. Justice Nagamuthu said, and set aside an order passed by Virudhunagar Principal Sessions Court on August 1, 2006.

The judge agreed with the appellant’s counsel, RM. Arun Swaminathan, that the dismissal of the appeal for non-prosecution had caused great prejudice to the convict, Gurusamipandian, who was arrested after the dismissal of the appeal in order to undergo two years of imprisonment.

He sent the matter back to the Sessions Court for fresh disposal on merits and restored the benefit of suspension of sentence enjoyed by the convict during the pendency of the appeal preferred against his conviction under Sections 323 (causing hurt) and 506 (ii) (criminal intimidation) of the Indian Penal Code.

‘Dismissal of the appeal for non-prosecution had caused great prejudice to the convict, who was arrested thereafter’