Naser, S/o Khader v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 887 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 21/2009 OF IIIRD ADDITIONAL ``` ``` DISTRICT COURT (ADHOC-I), THODUPUZHA ``` ``` CC 651/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I , THODUPUZHA REVISION PETITIONER/S: ``` ``` NASER, S/O.KHADER, KULATHINKAL HOUSE ANNAIKANNAM KARA, KARIKODE VILLAGE, THODUPUZHA. BY ADV SRI.LATHEESH SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SMT. SEETHA.S, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P. No.887 of 2011 ## **C. S. DIAS, J.** **------------------------Crl.R.P. No.887 of 2011 ------------------------Dated this the 27[th] day of November, 2023 ORDER** The revision petition is filed challenging the judgment in Crl.A No.21/2009 of the Court of the IIIrd Additional Sessions Judge (Adhoc-I), Thodupuzha (Appellate Court), confirming the judgment in CC No.651/2005 of the Court of the Judicial Magistrate of First Class-I, Thodupuzha (Trial Court) and holding the revision petitioner guilty for the offence under Section 379 of the Indian Penal Code ( in short, IPC) and consequently, convicting and sentencing him for the said 3 Crl.R.P. No.887 of 2011 offence. The revision petitioner was the first accused in the above case. 2. The prosecution case was that on 21.4.2003 while PW1 was walking through Arikuzha – Periyambra canal road, the revision petitioner/first accused along with the second accused went on a motor cycle and snatched the gold chain of PW1. Thus the accused have committed the offence under Sec.379 read with Sec.34 of the IPC. 3. The Trial Court, after analysing the materials on record, by judgment dated 8.1.2009, found the revision petitioner guilty and convicted him for the offence under Sec.379 of the IPC and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine 4 Crl.R.P. No.887 of 2011 of Rs.7,000/- and in default to undergo simple imprisonment for a further period of six months. 4. Aggrieved by the said judgment, the revision petitioner filed Criminal Appeal No.21/2009 before the Appellate Court. 5. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment, dismissed the appeal and confirmed the conviction and sentence imposed by the Trial Court. 6. It is assailing the concurrent judgments passed by the courts below, the revision petition is filed. 7. Heard; Sri.Latheesh Sebastian, the learned Counsel appearing for the revision petitioner and 5 Crl.R.P. No.887 of 2011 Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent/State. 8. The learned counsel appearing for the revision petitioner confined his arguments to the sole point that, the revision petitioner was not granted an opportunity to address his arguments before the Appellate Court. He contended that a reading of paragraph No.5 of the judgment would reveal that the Appellate Court had called the revision petitioner absent, set him ex parte and decided the appeal. The procedure adopted by the Appellate Court was in violation of the law laid down by the Hon’ble Supreme Court. Hence, the revision petition may be allowed. 6 Crl.R.P. No.887 of 2011 9. Is there or any illegality, impropriety irregularity in the impugned judgment ? 10. It is discernible from paragraph No.5 of the impugned judgment that the revision petitioner was called absent, set ex parte, and then the appeal was heard and decided. 11. In **K.Muruganandam and others vs. State represented by Deputy Superintendent of Police and another** [2021 (5) KHC 363] , the Hon’ble Supreme Court has succinctly held that if the accused does not appear through counsel appointed by him, the Court is obliged to proceed with the hearing of the case only after appointing an Amicus Curiae. However, the Courts 7 Crl.R.P. No.887 of 2011 cannot dismiss an appeal merely because of nonrepresentation or default of the Advocate for the accused. 12. In the case on hand, the Appellate Court has decided the appeal in the absence of the revision petitioner, which is in hostile violation of the law in **K.Muruganandam** (supra). Thus, I am of the definite view that the impugned judgment is erroneous and wrong, and is liable to be set aside. 13. The revision petitioner ought to have been granted an opportunity to address his arguments and if he failed to appear on the appointed day, the Appellate Court ought to be appointed an Amicus Curiae and then decided the appeal on its merits. Thus, I am inclined to 8 Crl.R.P. No.887 of 2011 allow the revision petition, by setting aside the judgment of the Appellate Court. In the result, ## (i) The revision petition is allowed. (ii) The judgment in Crl.A No.21/2009 is set aside. (iii) Crl.A No.21/2009 is remitted back to the Appellate Court. (iv) The revision petitioner is directed to appear before the Appellate Court on 4.1.2024. - (v) The Appellate Court shall afford the revision - petitioner an opportunity of being heard. (vi) In case of failure of the revision petitioner to appear on the said day, the Appellate Court shall appoint 9 Crl.R.P. No.887 of 2011 an Amicus Curiae as laid down in the aforecited decision, and then decide the appeal. (vii) As the appeal is of the year 2009, the Appellate Court shall dispose of the appeal within two months from 4.1.2024. (viii) The Registry shall forward a copy of this order with the lower court records to the Appellate Court, as expeditiously as possible. **C.S.DIAS** sks/27.11.23 **JUDGE**