BHIMA PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned Additional Sessions Judge, Cuttack upholding the conviction of the Petitioners under Section 395 of the Indian Penal Code ( ' I.P.C. ' for short).

(2.) THE Petitioners were convicted by the learned Assistant Sessions Judge, Jajpur under Section 395. 1. P. C. for having committed dacoity in the house of the informant (p.w. 1) in the night of 19.4 -1978 and were sentenced to undergo rigorous imprisonment for six years each. The Petitioners preferred an appeal through counsel which finally came up for hearing on 13 -5 -1982 before the learned Additional Sessions Judge. On that day the following order was recorded by him:

(3.) IN Khaili and Ors. v. State of Uttar Pradesh, 1982 Cri. LJ 143, it was observed by the Supreme Court that howsoever diligent the learned Judge may be and however careful and anxious he may be to protect the interest of the Appellants, in the absence of their counsel, his effort cannot take the place of an argument by an Advocate appearing on behalf of the Appellants and in such a case, if an Advocate appearing for the Appellants does not attend the Court and does not argue, the appellate Judge should appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits. Reliance was placed on this observation by a learned Single Judge of this Court is a case reported in S. Mohan Rao v. Bhubaneswar Rath : 58 (1984) C.L.T. 585 and it was held that it is the duty of die Judge to appoint as Advocate amicus curiae for disposal of the appeal on merits in case of non -appearance of the Advocate for the accused. With respect I agree with the observations and hold that the learned Additional Sessions Judge ought to have appointed an Advocate amicus curiae for hearing arguments on behalf of the Petitioners and then dispose of their appeal on merits. For the above purpose it is necessary to remand the case so that the learned Additional Sessions Judge shall rehear the appeal on the basis of the observations made above 5. In the result, therefore, the criminal revision is allowed and the case is remanded to the Court of the learned Additional Sessions Judge, Cuttack for rehearing of Criminal Appeal No. 38 of 1981 of his Court in the light of the observations made ' above. I am given to understand by Mr. Dillip Kumar Mohanty, learned Counsel appearing for the Petitioners, that he would represent the Petitioners in the aforesaid Court. He shall appear before the learned Additional Sessions Judge on 27 -7 -1987 for directions. The lower Court records may be transmitted forthwith.