SIARAM YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner along with another accused had been put on trial for an offence under S.395 of the Indian Penal Code and they were convicted for this offence and sentenced to rigorous imprisonment for five years by the II Assistant Sessions Judge. Samastipur. They both preferred an appeal in the Court of the Sessions Judge, Samastipur. During the pendency of the appeal the other accused died and the petitioner's appeal remained pending and was ultimately dismissed by the 3rd Additional Sessions-Judge, Samastipur on 25-7-85. The present application is against the judgement of the Appellate Court.

(2.) The admitted position is that when the appeal was taken up for hearing on 25-7-87 in the Court of the Additional Sessions Judge, neither the appellant appeared nor there was any appearance on behalf of his counsel in spite of the fact that the learned Court had on earlier dates given adjournment in order, to give them opportunity of being heard. Under these circumstances, the learned Additional Sessions Judge observed that it appears that the appellant had no interest in prosecuting the appeal and therefore he heard, the Additional P.P. on behalf of the respondent and thereafter considered the entire case on merit and passed judgement upholding the conviction and sentence of the petitioner.

(3.) It has been urged on behalf of the petitioner that even if he or his counsel did not appear before the learned Appellate Court, that Court could not dismiss the appeal on merits without hearing the appellant. It has been submitted that if the appellant's counsel did not take interest in prosecuting the appeal, the appellant should have been noticed and if even this failed to bring forth any response, the lower Appellate Court should have appointed a State counsel who could have placed the facts and argued the case on merits on behalf of the appellant. In support of this contention that at the time of hearing of the appeal, the Court ought to have appointed a State counsel to argue the case on merits on behalf of the appellant and only after having heard such a counsel the Appellate Court may pass a judgement on merits, reliance has been placed on the decision of the S.C. in AIR 1987 SC 1500.