MD MUSLIMUDDIN Vs. STATE OF TRIPURA

JUDGEMENT

(1.) A learned Single Judge of this Court has referred the following questions: "Whether order of a learned Single Judge dismissing a criminal appeal for absence of the appointed counsel but on merit can be set aside by the same Judge or another Judge by an order restoring the appeal for re-hearing ?

(2.) Few basic facts leading to the present reference may now be seen. Criminal Appeal No. 27/86 was finally disposed of by Barman Roy, J. on 23.5.94 as has been now by the learned Single Judge making the reference. At the time of disposal of this appeal no lawyer on behalf of either of the parties was present before him. Subsequently the appellants moved an application for restoration of appeal. This appeal which was finally disposed of by Barman Roy, J. on 23.5.94 again came to be listed before Dev, J. who dismissed it on default on 25.10.95. An application for restoration of appeal was moved which was allowed by order dated 31.10.95 passed by Patnaik, J. and the appeal was restored. It would be pertinent at this stage to reproduce the order passed by learned Single Judge, Barman Roy, J. on 23.5.94.

(3.) There can be no doubt about the artificiality of the disposal of appeal. The learned Single Judge dismissed the appeal so well within his powers to dismiss the same on consideration upon examination of the petition of appeal and the impugned judgment was of the view that there was no sufficient ground for interfering as provided by Section 384 (1). The proviso to sub-section (1) contemplates a reasonable doubt of being heard to be afforded to the appellant or his counsel. Going through the record it would be seen that by order dated 11.9.86 usual notices were directed to be issued and the record requisitioned.Even the record was seen for preparation of paper book. Notices were issued to the appellants to appoint lawyer of their choice. Accordingly on 27.9.93 Messers Das and Saha entered appearence on behalf of the appellants. It is not a case where the opportunity of hearing was denied. Even on the preceding date, i.e. 19.5.94. None appeared for the appellants and the appeal was passed over for the day. Thereafter it came to be listed on 23.5.94 when the learned Single Judge passed the order reproduced above.