(1.) - The petitioners were convicted for offences under sections 427 and 447, I.P.C. by the learned Sub-Divisional Judicial Magistrate, Anandapur, on the complaint of the opposite party and were sentenced to pay fines and in default to undergo different terms of imprisonment. They appealed before the learned Sessions Judge, Keonjhar through counsel. The appeal came up for hearing on 19.4. 1985 on which date neither the petitioners nor their counsel were present. Therefore, the learned Sessions Judge heard the counsel for the opposite party, closed the argument and on 26.4.1985 delivered the judgment dismissing the appeal.
(2.) Mr. B. Panda learned counsel appearing for the petitioners placing reliance upon the decisions reported in S. Mohan Rao v. Bhubaneshwar Rath and Shima Panda and another v. The State of Orissa2, urged that when the learned Sessions Judge found that the petitioners and their counsel were absent on the date the appeal was called for learning, a counsel amicus curiae should have been appointed to represent the petitioners for disposal of the appeal after hearing. He, there fore, submitted that the appeal may be remitted back for rehearing after giving a fresh opportunity 1. (1984) 54 CLT 585. 2 (1987) II OLR 210. to the counsel of the petitioners to argue the case, or, if he would not appear, a direction may be given to the learned Sessions Judge to appoint a counsel amicus curiae and then proceed to dispose of the appeal on merits. The opposite party has not entered appearance.
(3.) The records reveal that when the appeal was called for hearing on 19.4.1985 the petitioners were absent. Their counsel was also absent. Only after hearing the counsel for the opposite party, bearing of the appeal was closed and on 26.4. 1985 the appeal was dismissed. The case is covered by the two decisions of the Court referred to above. Reference may also be made to Khaili and others v. State of Uttar Pradesh3 where it was held that howsoever diligent the learned Judge may be and however careful and anxious he may be to protect the interests 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 appellant Judge should appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits. In view of the aforesaid facts and the principle of law, I am of the opinion that if the learned Sessions Judge found that the petitioners and their counsel were absent, he should have appointed a counsel amicus curiae to represent them so as to dispose of the appeal after hearing him as well. Now that the appeal will be remitted back to the court of the learned Sessions Judge, I hope, the petitioners shall appear with counsel of their own and if they still do not do so, it shall be open to the learned Sessions Judge to appoint an Advocate amicus curiae and dispose of the appeal on merits.