Case Note & Summary
The revision petition arose from the dismissal of a criminal appeal for non-prosecution. The revision petitioner, convicted under Section 138 of the Negotiable Instruments Act, 1881 by the Trial Court, had filed Criminal Appeal No. 73/2022 before the VI Additional District and Sessions Judge, Belagavi. While suspending the sentence, the First Appellate Court directed the deposit of 20% of the fine amount within four weeks, expiring on 15.04.2022. The matter was adjourned multiple times, and on 05.07.2022, a last chance was granted to report compliance. On 29.07.2022, when neither the appellant nor his counsel appeared, the First Appellate Court dismissed the appeal for non-prosecution. The revision petitioner challenged this order under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. The core legal issue was whether a criminal appeal against conviction can be dismissed for default or non-prosecution. The revision petitioner, relying on Supreme Court decisions, argued that an appeal cannot be dismissed for non-prosecution; in the absence of counsel, the court must appoint an amicus curiae. Non-compliance with the deposit condition could justify vacating the suspension order but not dismissal of the appeal. The respondent contended that the appellant deliberately avoided depositing the amount and did not take steps to issue notice, thus not deserving leniency. The High Court, after examining the precedents in K. Muruganandam & Ors v. State, Sakunthala v. State, Mohad Sukur Ali v. State of Assam, and Kabira v. State of Uttar Pradesh, held that an appeal against conviction and sentence cannot be dismissed for default or non-prosecution. If the counsel for the appellant is absent, it is the duty of the court to appoint an amicus curiae to represent the appellant. The Court noted that the First Appellate Court could have vacated the suspension order for non-compliance, but dismissal of the appeal was unsustainable. Consequently, the revision petition was allowed, the order dated 29.07.2022 was set aside, and the parties were directed to appear before the First Appellate Court on 28.05.2023. The revision petitioner was ordered to deposit 20% of the fine amount within three weeks, and the First Appellate Court was directed to dispose of the appeal in accordance with law.
Headnote
A) Criminal Law - Appeal against Conviction - Dismissal for Non-Prosecution - Code of Criminal Procedure, 1973, Sections 397, 401 - An appeal against conviction and sentence cannot be dismissed for default or non-prosecution. If the appellant or counsel is absent, the court must appoint an amicus curiae to argue the appeal on merits. The First Appellate Court dismissed the appeal for non-prosecution due to absence of appellant and counsel and failure to comply with deposit condition. Held: The order of dismissal is legally unsustainable; the court should have appointed an amicus curiae. (Paras 6-8) B) Criminal Procedure - Suspension of Sentence - Non-compliance with Deposit Order - Code of Criminal Procedure, 1973, Section 389 - Non-compliance with an order to deposit fine amount as a condition for suspension of sentence may justify vacating the suspension order, but not dismissal of the appeal itself. The First Appellate Court had directed deposit of 20% fine. Held: The proper course for non-compliance is vacating suspension, not dismissing appeal. (Paras 7-8)
Issue of Consideration
Whether a criminal appeal against conviction can be dismissed for non-prosecution/default, and whether the First Appellate Court was justified in dismissing the appeal for non-prosecution due to absence of appellant and counsel.
Final Decision
Criminal Revision Petition allowed. The order of the First Appellate Court dated 29.07.2022 set aside. The parties directed to appear before the First Appellate Court on 28.05.2023. Revision petitioner-accused shall comply with the deposit of 20% fine within 3 weeks. First Appellate Court to dispose of appeal in accordance with law.
Law Points
- Appeal against conviction not dismissible for non-prosecution
- Court must appoint amicus curiae if counsel absent
- Non-compliance with deposit order grounds for vacating suspension not dismissing appeal
