A SIVANESAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Special leave granted.

(2.) On 1/10/1996 while directing notice to issue insofar as Petitioner 4, A. Sivanesan is concerned, it was felt necessary to verify whether or not notice of lodgement of appeal was served on him before the appeal wasdisposed of by the High court. The Registrar of the High court was directed to verify the record and to inform this court whether or not the notice of lodgement of appeal was initially served on A. Sivanesan also along with petitioners 1, 2 and 3. The special leave petition-insofar as Petitioners 1, 2 and 3 are concerned has already been dismissed. We now find from the letter of the Assistant Registrar of the High court of Tamil Nadu dated 29/10/1986 that no notice of lodgment of appeal was served on the petitioner - A. Sivanesan - before the appeal was disposed of.

(3.) The facts reveal that the appeal was allowed and the order of acquittal was set aside by the High court. Thereafter, this petitioner/appellant applied by Cri MPs Nos. 1907-08 of 1996 for recalling the order and for hearing the appeal on merits. The learned Single Judge in the High court observes that although the vakalatnama was filed on behalf of the first three respondents only, on the docket of the vakalatnama it was mentioned that the counsel was appearing for all the respondents. This misled the Registry of the High court to think that the advocate was appearing on behalf of all the respondents and, therefore, it notified the appeal to be ripe for hearing. It now transpires that the present petitioner/appellant - A. Sivanesan - had in fact not been served. Merely because an advocate was appointed amicus curiae for all the respondents because the counsel who filed the vakalatnama did not appear, the defect insofar as the present petitioner/appellant is concerned, cannot be said to be cured. The petitioner/appellant, if he were served, was entitled to engage his own counsel, if he so desired. We are, therefore, of the opinion that having regard to this situation the judgment in appeal against him must be recalled and the matter must go back to the High court for the disposal of the appeal on merits. Since he is now represented before us by counsel, we direct that he appear before the Registrar of the High court on 25/2/1997 so that the Registrar may inform him of the next date of hearing of his appeal. This would ensure that history does not repeat itself and time is not lost in effecting service on the petitioner/appellant.