Mallaiah & Anr Vs. State of Andhra Pradesh  INSC 240 (27 April 1995)
Anand, S. Rajendra Babu. S. Rajendra Babu, J.
appellants were chargesheeted for offences arising under Section 304 I.P.C. and
Section 3 and 4 of the Dowry Prohibition Act read with section 498A, I.P.C. The
allegation made in the chargesheet is that one G. Madhavi Latha was married to Manik
Prabhu the son the appellants herein on 8.6.1983; that the decreased 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 burling 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 examined on behalf of the prosecution and
several documents were market while the defence examined two witnesses and also
got several documents marked. The trial court held that the offences arising
under Section 304B I.P.C. 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 offices arising under Section 498A and
sentenced them to sufer rigorous imprisonment for a period of two years and to
pay a fine of Rs. 200/- each in default to suffer simple imprisonment for one
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 engaged some other counsel and he had already endorsed
his no objection on the Vakalstnama. 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 diseissed. 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 25.1.1993. 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.
application was filed by the parties under section 482 of the Criminal
Procedure Code in Miscellaneous Petition No. 4201 of 1997 seeking for setting
aside the judgment passed on 28.8.1997 dismissing their appeal. The said
application set out the facts to which were have adverted to new about the
change of the advocates and the names of the new advocates appearing in the
case not having been shown in the cause list. In fact, the High Court held an
enquiry into the matter and called upon the office to make a report and the
said report a copy of which is made available to us, reflects what we have
stated about the mistake of the office in not indicating the names of the
advocates and about the change of the advocates. It is clearly admitted in the
Report that by mistake the names of Mr. Anil Kumar and Mr. Praveen Kumar were
not shown in the cause list. The High Court however, dismissed the petition
observing that Mr. Milind Gokhale whose name was shown in the cause list should
have informed the appellants and the criminal appeal having been disposed on
merits, the same could not be restored.
respondent remained unrepresented.
no doubt true that it is open to the Court to dispose of an appeal on merits
even in the absence of the learned counsel appearing for the parties when the
case is set down for hearing and the advocate or the party concerned does not
appear. However, when the learned counsel could not appear before the Court not
on account of the fault either of the appellant or the advocates themselves,
but on account of mistake committed by the Registry of the High Court in not
showing the names of the counsel in the cause list properly and the counsel not
being aware of the listing of the case before the Court in such a master we do
not think that principle should be extended.
notice a decision of this Court in Bani Singh vs. State of Uttar Pradesh (AIR
1996 SC 2439) in which a bench of three Judge considering the scope of Section
385 and 386, Cr. P.C. 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 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 vs. State of U.P. does not come in the way of the view we have
expressed in this case.
the order made by the High Court dismissing the appeal is set aside and the
matter shall stand remitted to the High Court which shall be disposed of in
accordance with law by restoring the appeal to its original number.
appeals are allowed accordingly.