APHC010423642025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 881 OF 2025 Revision Case filed under Sections 438 & 442 of BNSS, aggrieved by the Judgment dated 23-05-2025 passed in Criminal Appeal. No. 16 of 2025, on file of the Court of the III Additional District and Sessions Judge (FTC), Ongole. Between: Panamala Hah Prasad, S/o. Manmadha Rao, aged about 40 years. R/o. Fish Market Shop No. 12, Besides, APSRTC Depot, Ongole, Prakasam District. ...PETITIONER/APPELLANT/ACCUSED AND 1. Gollapothu Kodanda Rao, S/o. Venkaiah, aged about 37 years, R/o. No.2, Besides Fish Business, Damodara Sanjeevaiah Market, Shop APSRTC Depot, Cngole, Prakasam District ...RESPONDENT/COMPLAINANT 2. TheStateofAndhraPradesh, Rep. by Public Prosecutor, High Court of Andhra Pradesh at Amaravati ...RESPONDENT/RESPONDENT y-f' lA NO: 2 OF 2025 Section 528 of BNSS, praying that in the circumstances Petition under stated in the affidavit filed in support of the petition, the High Court may be suspend the operation of sentence dated 17-01-2025 passed in the file of the Court of the Judicial Magistrate of First pleased to C.C.No. 439 of 2017 on Class, Special Mobile Court-cum-IV Additional Civil Judge (Junior Division) Ongole. : SRI YADAVALLI RAMESH, ADVOCATE Counsel for the Petitioner Counsel for Respondent No.1 : -- Counsel for Respondent No.2 : THE PUBLIC PROSECUTOR, HIGH COURT OF A.P. The Court made the following ORDER : APHC010423642025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] WEDNESDAY,THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 881/2025 Between: PANAMALA HARI PRASAD, S/0. MANMADHA RAO, AGED ABOUT 40 YEARS R/0. FISH MARKET SHOP NO. 12, BESIDES, APSRTC DEPOT, ONGOLE, PRAKASAM DISTRICT. ...PETITIONER AND 1.GOLLAPOTHU KODANDA RAC, S/0. VENKAIAH, AGED ABOUT 37 R/0. FISH BUSINESS, DAMODARA SANJEEVAIAH SHOP N0.2, BESIDES APSRTC DEPOT, ONGOLE. YEARS, MARKET, PRAKASAM DISTRICT PRADESH, REP. BY PUBLIC HIGH COURT OF ANDHRA PRADESH AT 2.THE STATE OF ANDHRA PROSECUTOR, AMARAVATI ...RESPONDENT(S): Counsel for the Petitioner: YADAVALLI RAMESH Counsel for the Respondent(S): PUBLIC PROSECUTOR K'- ■ Dr.YLRJ , Crl.R.C.No.881 of 2025 Dated. 20.08.2025 The Court made the following: ORDER: The Revision has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) against the judgment dated 23.05.2025 in Crl.A.No.16 of 2025 passed by the learned III Additional District and Sessions Judge, Ongole, whereby and whereunder the learned Appellate Court dismissed the appeal filed by the appellant/accused against conviction judgment for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity ‘the N.I.Act’). 2. 1 have heard the arguments of the learned counsel for the revisionist and the learned Assistant Public Prosecutor. Sri Yadavalli Ramesh, learned counsel for the petitioner argued that the learned Appellate Court had not provided an opportunity to the learned counsel for the revisionist while dismissing the criminal appeal. It is submitted that if no arguments were advanced by the learned counsel for the appellate/accused, the learned Sessions Judge ought to have taken the aid of the legal aid counsel or appointed an amicus curie to hear the arguments. Thus, no fair opportunity was given to the revisionist by the learned Appellate Court. Therefore, the judgment is liable to be interfered and set aside and it is urged to remand the case to the learned Appellate Court for fresh hearing and disposal. 3. 3 Dr.YLRJ Crl.R.CNo.SSlof 2025 Dated. 20.08.2025 Per contra, Ms. P. Akhila Naidu, learned Assistant Public Prosecutor also 4. fairly submitted that, as can be seen from the impugned judgment passed by the learned Appellate Court no opportunity of advancing arguments by the learned counsel for appellant/accused was provided, therefore requested to pass appropriate orders. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the Petitioner and the learned Assistant Public 5. Prosecutor. I have perused the record. Now the point for consideration is; “Whether the judgment in Crl.A.No.16 of 2025 dated 23.05.2025, passed by the learned III Additional District and Sessions Judge, Ongole, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities ? And to what relief?” The learned counsel for the revisionist has brought to the notice of this Court the impugned judgment which is extracted as under; 6. 7. “Appellant is called absent. No representation till 4.30 P.M., inspite conditional order also. Hence, this appeal dismissed for default.” On perusal of the impugned judgment, it is clear that the learned Appellate Court had not provided any opportunity to the learned counsel for the petitioner/accused for advancing the arguments. Without hearing the arguments of the petitioner/accused, it was not proper on the part of the learned Sessions Judge to dismiss the criminal appeal. 8. 4 Dr.YLR, J. Crl.R.C.No.881of 2025 Dated. 20.08.2025 9. A Criminal Appeal could be dismissed for default, even if the appellant/accused was absent and there was no representation till 4.30 P.M., despite a conditional order passed by the learned Appellate Court. The learned Appellate Court was left with the option of hearing the appeal on merits by appointing a legal aid counsel for the appellant. Dismissing a Criminal Appeal for default is not contemplated under any of the provisions of the Code of Criminal Procedure. The Hon’ble Apex Court, in categorical terms, has held that a Criminal Appeal cannot be dismissed for default like a civil appeal under Order 41 rule 17 of the Code of Civil Procedure (for brevity ‘the C.P.C’). 10. The Hon’ble Apex Court in Khalli v. State of U.P^ at para No.1 it is held as under: .. .But even though the fees and expenses were not paid, the Advocate should not, in our opinion, have refused to argue the case. It must be remembered by every advocate that he owes a duty to the court, particularly in a crinriinal case Involving the liberty of the citizen, and even if he has not been paid his fees or expenses, he must argue the case and assist the court in reaching the correct decision. We can appreciate a situation where advocate may be unable to argue the case in the absence of instructions from the client, but non-receipt of fees and expenses can never be a ground for refusing to argue the case. The learned Advocate in the present however, refused to argue the case and consequently the learned Judge went through the record of the case and decided the appeal. Now one thing is clear that howsoever diligent the learned Judge might have been and however careful and anxious to protect the interests of the appellants, his effort could not take the place of an argument by an advocate appearing behalf of the appellants. We think that In a case such as this, what the learned Judge should have done i/vas to appoint an advocate amicus curiae and then proceed to dispose of the appeal on merits”. 1. an case. on In Mangat Singh v. State of Punjab^ it is held at para No.2 as under: 11. ^ Criminal Appeal No. 137 of 1980 dt. 18.2.1980 ^ 2005(11)see 185 5 Dr.YLR, J CrI.R.C.No.SSlof 2025 Dated. 20.08.2025 2. It is unfortunate that the counsel had not appeared in the High Court in a of appeal of conviction under Section 302 iPC. The question of case accountability of the advocate looms large in a case of this nature. However, the High Court could have appointed an amicus curiae to assist the Court rather than relying on the assistance of the learned counsel for the State. No doubt, the High Court had considered the matter elaborately. However, it is substitute for the judgment rendered after hearing the counsel especially in a case in which the appellant is convicted under Section 302 IPC and sentenced to life imprisonment. Learned counsel appearing for the appellant has drawn our attention to the observations in the decision of this Court in Khaili v. State of U.P. We are, therefore, constrained to set aside the a impugned Judgment and remit the matter to the High Court for fresh disposal expeditiously after appointing an advocate as amicus no curie. In Shankar v. State of Maharashtra^ it is held that at para No.5 as 12. under; “5. When the accused has preferred the appeal against the conviction, the appeal can be disposed of on merits only after hearing the appellant or his counsel. When there was no representation for the appellant, in our considered view, the High Court ought not to have disposed of the case on merits. It w/as held in 2005 (11) SCC 185 titled Mangat Singh v. State of Punjab that where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal.’ Once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. When the appellant u/as not represented by the advocate, in our view, the High Court ought not to have decided the matter on merits and the impugned order is liable to be set aside and the matter is remitted back to the High Court. The High Court shall restore the Criminal Appeal No. 296 of 2014 and afford sufficient opportunity to the appellant and proceed with the matter in accordance with law. In case, if the appellant is still not represented, we request the High Court to nominate a counsel for the appellant through the Legal Services Authority and proceed with the matter. Since the appellant is said to have undergone more than twelve years of imprisonment and since the Criminal Appeal No.296/2014 is remitted back to the High Court, the sentence of imprisonment imposed upon the appellant is ordered to be suspended and the appellant is ordered to be released on the condition that he should execute bail bond for a sum of L 10,000/- with two sureties for a like sum each to the satisfaction of the committal Court. The High Court shall proceed with the Criminal Appeal in accordance with law.” In view of the above said Judgments, as no opportunity was provided to the learned counsel for the petitioner/accused/Appellant by the learned Sessions Judge, the impugned judgment is not sustainable and it suffers from 13. ^ 2019 (2) ALT (CRI.) (SC) 460 (D.B) 6 Dr.YLR, J Crl.R.C.No.881of 2025 Dated. 20.08.2025 ir material irregularity. The learned Sessions Judge was expected to provide an opportunity of hearing counsel for the appellate before dismissing the criminal appeal. In case the learned counsel for the petitioner/accused was not available or was not present for advancing arguments, the learned Sessions Judge ought to have appointed a legal aid counsel or taken the aid of an amicus curie for effectively dispose of the criminal appeal. Thus, the principles of natural justice have been violated in this case. Ex facie, the impugned order is impermissible and contrary to the 14. procedure contemplated under ‘the Cr.P.C’. Hence, there is no need to issue notice to respondent No.1. Accordingly, this Criminal Revision Case is disposed of at the admission 15. stage itself, setting aside the judgment dated 23.05.2025 in Crl.A.No.16 of 2025 passed by the learned III Additional District and Sessions Judge, Ongole, which is unsustainable in law. The matter is remitted to the learned III ^ Additional District and Sessions Judge (FTC), Ongole, with a direction to hear the Criminal Appeal in Crl.A.No.16 of 2025 afresh and to pass an appropriate judgment within six (06) months from the date of receipt of this order. It is further made clear that if the appellant fails to cooperate or present for the hearing, the learned Appellate Court, in terms of the judgments of the Hon’ble Apex Court referred in Khaili, Mangat Singh and Shankar, may appoint a legal aid counsel or amicus curiae to hear and dispose of the appeal after providing due opportunity to respondent No.1 herein. 7 Dr.YLR, J Crl.R.C.No.881 of 2025 Dated. 20.08.2025 With the above direction the criminal revision case is disposed of. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed. SD/- V.DIWAKAR DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The III Additional District and Sessions Judge (FTC), Ongole, Prakasam District. 2. The V Additional District and Sessions Judge, Ongole. 3. The Judicial Magistrate of First Class, Special Mobile Court-cum-IV Additional Civil Judge (Junior Division), Ongole, Prakasam District. One CC tp ^ci Yadavalli Ramesh, Advocate [OPUC] 5. Two CC’s to the Public Prosecutor, High Court of A.P. at Amaravathi [OUT] 6. Two CD Copies GPC TAC VNA *Note: In Paragraph No.15 at Page No.6 of the Order, dated 20.08.2025 in CRLRC No.881 of 2025, the name of the Court is amended as per the Court Order, dated 15.09.2025 made in I.A.No.3 of 2025 in CRLRC No.881 of 2025. Substitute this amended portion in the place of previous Order, which was already dispatched on 03.09.2025. 4. Sd/- V DIWAKAR DEPUTY REGISTRAR is: HIGH COURT DATED: 20/0«/?n?<; 15/09/2025 * AMENDED ORDER CRLRC NO. 881 OF 2025 I tfSEFm '% Current Section 69/ disposing of this criminal revision PETITION