MURALEEDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE grievance of the petitioner is that he had preferred Crl.A. No. 584 of 2012 challenging his conviction and sentence imposed vide judgment dated 24.7.2012 in C.C. No. 730 of 2006 of the court of the Judicial First Class Magistrate -I, Aluva by which the petitioner is found guilty and sentenced for the offences under Sections 419, 468 and 471 read with Section 34 of I.P.C. and 12(1)(b) of the Passport Act and the lower appellate court by its judgment dated 6.11.2012 in Crl.A. No. 584 of 2012 dismissed the same without affording an effective opportunity of being heard. I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

(2.) THOUGH I have gone through the judgment of the appellate court, nothing is discernible from the same to show that the appeal was disposed of without hearing the petitioner/appellant. But, the learned counsel, handed over to me the certified copy of the proceedings of the lower appellate court in the above appeal, which would show that as per the proceedings dated 30.10.2012, the learned Judge has recorded to the effect as follows: - "The appeal is posted to this day as suggested by counsel for the appellant. Today the appellant and counsel absent. Hence heard the respondent and taken for disposal to 06.11.2012". Subsequently, by judgment dated 6.11.2012, the appeal was dismissed. Thus, it is crystal clear that though the learned Judge has passed an elaborate order, the fact remained is that the revision petitioner/the appellant is not heard and the order, confirming the findings, conviction and sentence ordered by the trial court, was passed behind the back of the petitioner, which cannot be sustained by this Court. The Apex Court in the decision reported in Rajoo v. State of Madhya Pradesh [ : AIR 2012 SCC 1539] has held that while reiterating the right under Arts. 21 and 39A of the Constitution of India, it is held that it is the duty of the court to enquire of accused or convict whether he or she requires legal representation at State expenses and in the present case, though an appeal was filed through the counsel engaged at the choice of the revision petitioner, the counsel could not appear in time which resulted in the impugned judgment of the appellate court. Time and again, the Apex Court has held that the appeal, in which the conviction and sentence imposed against the accused are challenged, shall not be dismissed either for default due to the absence of the appellant or his counsel, but the same should be disposed of on merit. In the present case, even though the appeal is disposed of on merit, as per the proceedings of the court below which I indicated earlier, the revision petitioner was not heard properly. So it goes without saying that the approach adopted by the court below is against the interest of the revision petitioner. Therefore, it is only just and proper to remand the matter to the lower appellate court for fresh consideration and disposal after hearing the petitioner on merit. But, according to me, such an opportunity can be given only on terms as there was lapse on the part of the petitioner in prosecuting the appeal properly in the court below.