Suresh Kumar s/o Sukumaran v. Maheendran s/o Bhaskaran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** **Crl.Rev.Pet.No.140 OF 2018** **AGAINST THE ORDER/JUDGMENT IN ST 58/2014 DATED 08-05-2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, NEDUMANGAD** **AGAINST THE ORDER/JUDGMENT IN CRA 136/2015 DATED 26-10-2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/S/APPELLANT/ACCUSED:** **SURESH KUMAR S/O.SUKUMARAN, CHUNDAVILA VEEDU, KAVALOOR, VATTIYOORKAVU P O, THIRUVANANTHAPURAM DISTRICT, PIN-695013.** **BY ADV. SRI.R.B.RAJESH** ## **RESPONDENT/S/RESPONDENTS/COMPLAINANT & STATE:** **1 MAHEENDRAN S/O.BHASKARAN, KADAMBRAVILA VEEDU, KAVALOOR, VATTIYOORKAVU P O, THIRUVANANTHAPURAM,PIN-695013.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **R1 BY ADV. SRI.GIREESH NEYYAR R1 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT. M. K. PUSHPALATHA, SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.140 OF 2018** **2** **O R D E R** The revision petitioner was the appellant in Crl.Appeal No.136/2005 on the files of the appellate court. The above appeal was filed against the conviction and sentence passed by the trial court under Section 138 of the N.I.Act. On 26.10.2017, when the appeal was taken up, there was no representation for the appellant. In the said circumstances, the court below dismissed the appeal. 2. Heard. 3. The learned Counsel for the revision petitioner has argued that since the disposal of the appeal by the appellate court was not on merits, the judgment of the appellate court cannot be sustained. **Crl.Rev.Pet.No.140 OF 2018** **==> picture [8 x 9] intentionally omitted <==** 4. It appears that the appellant was continuously absent before the court. In the said circumstances, the court below passed a very brief judgment, which is extracted hereunder: “Appellant is continuously absent and there was no representation for the appellant. The order of conviction and sentences though challenged, nothing has been brought in recorded to dispute the final finding. On reevaluation of evidence adduced before the court below established the guilt of accused. Accordingly the appeal stands dismissed. Communicate the judgment to Judicial First Class Magistrate Court – IV, Nedumangadu for necessary action against the accused”. 5. Now the question to be considered is to whether the appellate court had the power to dismiss the **Crl.Rev.Pet.No.140 OF 2018** **4** appeal without complying with the mandates under Sections 385 and 386 of the Code, once the appeal is admitted. The power of the court to dismiss the appeal summarily is provided under Section 384 of the Code. Once the appeal is not dismissed summarily under Section 384 of the Code, the appellate court has to follow the procedure prescribed under Sections 385 and 386 of the Code. The plain language of Section 385 of the code makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it must call for the records from the lower court. Section 386 of the code mandates that after the records are received, the appellate court may dispose of the appeal after hearing the appellant or his counsel and the Public Prosecutor, if he appears. Therefore, the **Crl.Rev.Pet.No.140 OF 2018** **5** plain language of Sections 385 and 386 does not contemplate dismissal of the appeal without going into the merits of the case. On the contrary, the Code envisages the disposal of the appeal only on merits, if the appeal is not dismissed summarily under Section 384 of the Code. The law clearly expects the appellate court to dispose of the appeal on merits. 6. Three Judge Bench of the Hon’ble Supreme Court in Bani Singh and Others. v. State of U.P. [AIR 1996 SC 2439] held that the plain language of Sections 385 and 386 does not contemplate dismissal of the appeal for non-prosecution simpliciter and on the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the records. The Apex Court in Harjinder Singh v. State of Punjab **Crl.Rev.Pet.No.140 OF 2018** **6** [2010(13) SCC 533] followed the decision in Bani Singh (supra) and held that Sections 385 and 386 do not contemplate dismissal of the appeal for nonprosecution. 7. In this case, the appellate court dismissed the appeal without appreciating the evidence. The appellate court simply stated that the re-valuation of the evidence adduced before the court below would establish the guilt of the accused. 8. Under Sections 385 and 386 of the Code, once the appeal is not dismissed summarily under Section 384 of the Code, the appellate court has no power to dismiss the appeal without going through the merits of the case. The appellate court has to re-appreciate the evidence and dispose of the appeal only on merits. If **Crl.Rev.Pet.No.140 OF 2018** **7** the appellant fails to appear before the appellate court, the appellate court can dispose of the appeal on merits after appointing an Amicus Curiae to argue the case for the appellant. The court below ought to have gone through the evidence of the case before disposing of the appeal. In this case, it appears that the revision petitioner had taken so may contentions in the appeal memorandum. However, none of the said contentions was considered by the appellate court. In the said circumstances, I am of the view that the judgment of the appellate court cannot be said to be legal, proper and correct and consequently, the same cannot be sustained. In the result, this revision petition stands allowed, setting aside the judgment of the appellate court and **Crl.Rev.Pet.No.140 OF 2018** **8** the matter is remitted to the appellate court for the disposal of the appeal afresh in accordance with law, affording reasonable opportunity of hearing to the revision petitioner or the Amicus Curiae, as the case may be. Since the appeal is of the year 2015, the appellate court is directed to dispose of the appeal, in accordance with law, as expeditiously as possible and at any rate within six months from the date fixed for the appearance of the parties before the appellate court. The parties shall appear before the appellate court on 10.03.2021. **Sd/-** ## **B.SUDHEENDRA KUMAR** **JUDGE** RK/19.12.2020