KASSIMBAI Vs. STATE

JUDGEMENT

(1.) The appeal is directed against the conviction of the appellant, who is Accused No.1 in S.C.No.32/95, for the offence under Section 436 I.P.C., for which he was sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/-, in default to suffer R.I. for one more year. The allegation against the petitioner is that on 14.2.1995 at about 5.30 p.m., he set fire to a small hut belonging to P.W.2, Beevikunju @ Chellammal and caused damage worth Rs.5000/-. Though the appellant was charged for having assaulted P.W.2, he was not convicted of that charge and though the second accused was also charged under Section 436 r/w 34 I.P.C., he was acquitted by the trial Court. In this appeal, we are concerned only with the conviction of the first accused for the offence under Section 436 I.P.C.

(2.) When the appeal was called, neither the appellant nor his counsel was present, while the prosecution was represented by the Addl. Public Prosecutor. If it is an usual working day and if any representations were made that the learned counsel appearing for the appellant could not come to court, this Court will have no hesitation to postpone the matter to enable the counsel to come and argue, but the reason for non appearance of the counsel for the appellant is boycott of courts, which is deprecated by the Supreme Court. No court is obliged to adjourn a case because of the strike call given by any Association of Advocates or a decision to boycott the courts as held by the Apex Court. It is the solemn duty of every court to proceed with the judicial business during court hours. Moreover, the Supreme Court in the case of BANI SINGH AND OTHERS vs. STATE OF U.P. reported in 1996 SCC (Cri) 848 has been pleased to hold as follows:

(3.) In yet another case reported in 2000 SCC (Cri) 21 rendered in the case of Rishi Nandan Pandit and others vs. State of Bihar, the Apex Court has been pleased to hold that when the counsel engaged by the appellants in a criminal appeal does not turn up, there is no obligation on the court of appeal to wait for him or even to adjourn the case awaiting his presence. However, if the counsel is absent there is nothing in law which precludes the court of appeal from appointing another counsel at the State's expense to assist the court. It is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the State's expense to argue for the cause of the accused.