Page No.# 1/2 GAHC010000062025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1/2025 INDRA KUTUM @ INDRAKANTA KUTUM S/O BIBHIKHAN KUTUM PRESENTLY RESIDING AT PASIGHAT, PASIGHAT (NT), EAST SIANG, ARUNACHAL PRADESH, PIN-791102 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE LD PP, ASSAM 2:MONUJ MILI S/O LATE NAKUL MILI R/O VILL- LAKHI NEPALI BASTI P.S. JONAI DIST. DHEMAJI ASSAM Advocate for the Petitioner : MR. A BHATTACHARYA, MS. K MALAKAR,MS K TALUKDAR,MR. A BHATTACHARJEE,MR S PAUL,MS ANKITA SAHARIA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA ORDER Date : 06.01.2025 Heard Mr. A. Bhattacharya, learned counsel appearing for the petitioner as well as Mr.DP Goswami, learned Additional Public Prosecutor for the State of Assam/respondent No.1. 2. This is an application under Section 528 of the BHSS, 2023 challenging the order dated Page No.# 2/2 05.11.2024 passed by the learned Sessions Judge, Dhemaji in Criminal Appeal No. 20/2017. 3. The petitioner was convicted under Section 25 (1-B) (a) of the Arms Act. Thereafter, he filed an appeal before the learned Sessions Court, Dhemaji. On 05.11.2024, the petitioner was found absent on call, though the record was available before the learned appellate court. For absence of the petitioner, the learned Sessions Judge, Dhemaji dismissed the appeal. 4. Mr. Bhattacharya has submitted that it is a settled position of law that if the petitioner does not appear before the learned appellate court, the learned appellate court is obliged to proceed with the hearing of the appeal. In that case, the learned appellate court is at liberty to appoint an amicus curiae. Mr. Bhattacharya has relied upon a judgment of the Hon’ble Supreme Court that was delivered in the case of Muruganandam & Ors. Vs. State represented by the Deputy Superintendent of Police & Anr. reported in (2022) 2 Crimes (SC) 122. Paragraph 8 of the said judgment is quoted as under – “8. It is well settled that if the accused does not appear through counsel appointed by him or her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non- representation or default of the advocate for the accused (see Kabira vs. State of Uttar Pradesh, 1981 (Supp) SCC 76 and Mohd. Sukur Ali vs. State of Assam, (2011) 4 SCC 729”. 5. I have considered the submissions made by the learned counsel of both sides. 6. This Court is of the opinion that the impugned order dated 05.11.2024 passed by the learned Sessions Judge, Dhemaji in Criminal Appeal No. 20/2017 is erroneous and therefore, stands set aside. 7. The learned Sessions Judge, Dhemaji is directed to hear the appeal and to dispose of the same on merit. If necessary, the learned appellate court shall appoint an amicus curiae or Legal Aid Counsel and proceed with the hearing of the case. With the aforesaid direction, the criminal petition stands disposed of. JUDGE Comparing Assistant