Whether criminal appeal can be dismissed in default?

It is seen that the learned Judge has dismissed the appeal for
default. It means the conviction and sentence are confirmed without a
hearing. It is not a merit disposal. A suit can be dismissed for default. But
not a criminal appeal. So, the impugned judgment passed by the learned I
Additional Sessions Judge is vitiated.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED : 13.06.2016  

CORAM   
 DR.JUSTICE P.DEVADASS            

C.R.L.RC(MD) No.190 of 2016  
and Crl.M.P.(MD) No.2672 of 2016 

Kalaiselvi  Vs    Sivasubramanian                               




Now the short and simple question is whether like a suit or appeal suit, a
criminal appeal could be dismissed for default.

2.In this respect a civil case is different from a criminal case. In Civil
Law, exparte disposal, dismissal for default is well known. But it is unknown
in criminal law. Under the Criminal procedure, there is no exparte disposal,
exparte conviction, exparte sentence. An accused cannot be punished without a
hearing.

3.As per Article 22(1) of the Constitution of India, a person accused of a
crime is entitled to be defended by a lawyer of his choice. It is a
fundamental right. It is a constitutional right. It is a basic human right.
In the absence of counsel for the accused conducting trial and punishing the
accused is against law. It is not fair trial.

4.In the absence of a lawyer, if criminal proceedings are conducted, it is
like conducting trial with deaf and dumb person. It flows from Article 22(1)
of the Constitution of India. This has also been reiterated in Section 303
Cr.P.C. Such right to be defended by lawyer cannot be taken away/curtailed.
It is the bounden duty of a Court to ensure availability of proper legal
assistance to the accused. It also arises from Article 39-A Constitution of
India. This has also been reiterated in Section 304 Cr.P.C. Such right is not
only available in the original/ trial Court but also in the appellate and
revisional Courts as well as in this Court, otherwise it would not be a fair
trial.
5.In a democratic country, one of the basis of personal freedom is having
legal assistance. Equally if a person appeals as against his conviction, the
said principles applies to the appeal proceedings. There is no
disposal/dismissal of a criminal appeal for default. There cannot be an
exparte judgment under criminal law. If an appeal is dismissed for default,
it will result in conviction and the sentence get confirmed. However, it is
without an hearing. It is against Article 22(1) of the Constitution of India
and Sections 303 and 304 I.P.C.
6.Sometimes an appellant may fails to appear and prolongs the Criminal
Appeal. Even then such absconding appellant must be given legal assistance
through a lawyer. After that if the appeal is dismissed or allowed that is a
different matter. In such circumstances, the Court has to engage some lawyer
to represent the absentee appellant. The Court can appoint a legal aid
counsel or lawyer as amicus curiae. Only after hearing on merits a conviction
can be confirmed. It also equally applies to appeals filed as against order
of acquittal.
7.In this case originally the accused was convicted in S.T.C.No.2880 of 2007
under 138 of N.I. Act by the learned Judicial Magistrate No.IV, Tirunelveli.
Thereafter, he filed Criminal Appeal No.7 of 2015 which was pending before
the learned I Additional Sessions Judge, Tirunelveli. On 01.12.2015, the
learned appellate Judge passed the following order:
?This Criminal Appeal has been filed against the judgment of the Judicial
Magistrate Court No.4, Tirunelveli in S.T.C.No.2880 of 2007 dated 18.12.2014.
Appellant / Accused not present. Counsel for the accused not present. But
counsel for Respondent present. Ready for Arguments. Further, this appellant
side has not filed any fresh surety contemplated u/s 437(A) Cr.P.C.
Sufficient time granted. Since no representation by counsel for the accused
this criminal appeal is dismissed for default. Directed the lower court to
execute the lower court judgment against the appellant/accused.?
        8.It is seen that the learned Judge has dismissed the appeal for
default. It means the conviction and sentence are confirmed without a
hearing. It is not a merit disposal. A suit can be dismissed for default. But
not a criminal appeal. So, the impugned judgment passed by the learned I
Additional Sessions Judge is vitiated.

9.Ordered as under:
(1) Revision is allowed.
(2) The impugned order passed by the 1st Additional Sessions Judge,
Tirunelveli dated 01.12.2015 in Crl.A.No.7 of 2015 is set aside..
(3) The 1st Additional Sessions Judge, Tirunelveli will restore the criminal
appeal.
(4) Both side counsels on record in the appellate Court will appear before
the said Court on 06.07.2016.
Consequently, connected Miscellaneous Petition is closed.

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