G. RAJ MALLAIAH Vs. STATE OF A.P.

JUDGEMENT

(1.) LEAVE granted. The appellants were chargesheeted for offences arising under section 304 IPC and sections 3 and 4 of the Dowry Prohibition Act read with section 498A, IPC. The allegation made in the chargesheet is that one G. Madhavi Latha was married to Manik Prabhu the son of the appellants herein on 8.6.1983; that the deceased Madhavi Latha, the appellants and her husband were living in Hyderabad; that on 27.6.1989 Madhavi Latha is said to have committed suicide by setting fire to herself in the presence of her children and she succumbed to the same on 29.6.1989; that the appellants were ill -treating the deceased by hurling abuses at her and did not provide proper or timely food as she did not bring enough money towards dowry. In the trial 20 witnesses were examination behalf of the prosecution and several documents were marked while the defence examined two witnesses and also got several documents marked. The trial Court held that the offences arising under section 304B IPC and sections 3 and 4 of the Dowry Prohibition Act were not established and acquitted them of the said charges. However, the trial Court convicted the appellants for offences arising under section 498A and sentenced them to suffer rigorous imprisonment for a period of two years and to pay a find of Rs. 200/ - each in default to suffer simple imprisonment for one month.

(2.) AGGRIEVED by the said conviction, the appellants preferred an appeal being Criminal Appeal No. 577 of 1993 on the file of the High Court. The appellants engaged the services of Shri Shankar Rao Biloliker and Shri Milind Gokhale and subsequently they were replaced by Shri Anil Kumar and Shri C. Praveen Kumar, Advocates who filed memo of appearance with consent of the learned counsel appearing earlier in the case. The appeal was listed for hearing on 12.8.1997 .when Mr. Milind Gokhale filed a memo stating that the appellant had taken away the file and wanted to engage some other counsel and he had already endorsed his no objection on the Yakalatnama. The matter was listed for hearing on 14.8.1997, 26.8.97, 27.8.97 and finally on 28.8.1997 on which date the matter was dismissed. On all these dates the name of Mr. Milind Gokhale was shown as the learned counsel for the appellants whereas in fact Mr. Anil Kumar and Shri Praveen Kumar had filed memo of appearance on 25.10.1993. However, that information was not put up with the file, fed into the computer either, nor printed in the cause list. In those circumstances the appeal came to be dismissed in the absence of the learned counsel for appellants.

(3.) WE may notice a decision of this Court in Bani Singh v. State of U.P., JT 1996 (6) 287 in which a Bench of three Judges considering the scope of section 385 and 386, CrPC took the view that while dealing with an appeal under the Code, both the appellant and his lawyer if absent on the dates set down for hearing, the Court is not bound to adjourn the case and may dispose of the appeal on merits and dismissal of the appeal simplicitor for non -prosecution is not contemplated. In the aforesaid decision, it is also noticed that by adopting this procedure if a case is decided on merits in the absence of the appellant or his advocate, the higher Court can remedy the situation if there has been a failure of Justice. In the present case the case was set down for hearing on different dates without notifying the names of the advocates appearing for the appellant, but showing the name of the advocate who had retired from the case. Therefore, it could not be stated that the appellant or his advocate had notice of hearing of the case on the dates set down for hearing. Hence, we must hold that the decision in the case without hearing the appellants or their advocate has resulted in miscarriage of justice and the principle stated in the decision in Bani Singh v. State of U.P., does not come in the way of the view, we have expressed in this case.