Case Note & Summary
This criminal revision petition was filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order of the XVII Additional Judge, City Civil Court, Chennai, which confirmed the order of the XXVI Metropolitan Magistrate, Egmore, Chennai. The petitioner, M. Irfan Khan, had been convicted by the Metropolitan Magistrate in STC No. 9698 of 2023 on 03.12.2024. Aggrieved, he preferred Criminal Appeal No. 01 of 2025 before the XVII Additional Judge, City Civil Court, Chennai. However, the appellate court dismissed the appeal for default on 10.10.2025, recording that there was no representation for the appellant and an NBW was pending, and thus dismissed the appeal without examining the merits. The petitioner contended that such a dismissal was illegal and that the appellate court had a duty to peruse the records and pass a reasoned order. The High Court, relying on the Supreme Court judgments in Bani Singh v. State of U.P., (1996) 4 SCC 720, K. Muruganandam v. State, (2021) 20 SCC 642, Kabira v. State of U.P., 1981 Supp SCC 76, and Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729, held that a criminal appeal cannot be dismissed for non-prosecution. The appellate court must examine the trial court records and deliver a reasoned judgment. If the appellant is absent, the court should appoint an amicus curiae to assist the court. Finding the impugned order unsustainable, the High Court set it aside and remitted the matter back to the appellate court for fresh disposal in accordance with law within three months. Additionally, considering the petitioner had been confined to Central Prison, Puzhal-I, Chennai, the court directed his release if his custody was not required in any other case. The revision petition was allowed, and the connected miscellaneous petition was closed.
Headnote
A) Criminal Procedure - Appeal - Dismissal for Default - Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 438, 442 - Appellate Court dismissed the appeal solely for non-prosecution without examining records. Held that a criminal appeal cannot be dismissed for default; the appellate court is duty-bound to peruse the trial court records, pass a reasoned judgment, and, if the appellant is unrepresented, appoint amicus curiae. The impugned order was set aside, and the matter remitted for fresh disposal within three months, with further direction to release the petitioner if not required in other cases (Paras 4-9).
Issue of Consideration
Whether the appellate court can dismiss a criminal appeal for default/non-prosecution without examining the merits
Final Decision
The criminal revision case is allowed. The appellate court's order dated 10.10.2025 in Crl.A.No.01 of 2025 is set aside. The matter is remitted back to the Appellate Court for fresh consideration in accordance with law within a period of three months from the date of receipt of a copy of this order. The petitioner is to be released from custody forthwith if not required in any other matter. Connected miscellaneous petition is closed.
Law Points
- Appellate court in criminal cases must peruse records and deliver a reasoned judgment
- a criminal appeal cannot be dismissed for default of appellant or his counsel
- in absence of appellant
- court must appoint amicus curiae and proceed to hear the appeal
