APHC010319382025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] FRIDAY,THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 699/2025 Between: 1.ARUPILLA YELLAJI, S/O KONDA BABU, D.NO.9-3-107, BRAHMIN STREET, KOTHAPET, VIJAYAWADA-1. ...PETITIONER AND 1.THE STATE OF ANDHRA PRADESH, Rep. by its Public Prosecutor, High Court of Andhra Pradesh at Amaravathi, Through Station House Officer, Machavaram P.s, Vijayawada City ...RESPONDENT Counsel for the Petitioner: 1.GALLA RAMA KOTESWARA RAO Counsel for the Respondent: 1.PUBLIC PROSECUTOR The Court made the following: ORDER: This Criminal Revision Case has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) challenging the Judgment dated 21.04.2025 passed in Crl.A.No.182 of 2024, 2 on the file of the learned XII Additional District & Session Judge, Vijayawada, whereby and whereunder the Appeal was dismissed for default. 2. Heard the learned Counsel for the Petitioner and learned Assistant Public Prosecutor. 3. Feeling aggrieved by the judgment dated 21.04.2025 passed by the learned Appellate Court in Crl.A.No.182 of 2024 the Revision Case has been filed. 4. Learned Counsel for the Petitioner submits that the learned Appellate Court posted the matter on 20.04.2025 which happened to be Sunday. Later, the matter was called on 21.04.2025, which happened to be Monday. On that day Petitioner/Appellant could not appear before the learned Appellate Court has he did not have sufficient knowledge about posting the matter on 21.04.2025. Hence, the Petitioner was neither present nor being represented by his Counsel. Petitioner has preferred the Appeal against the acquittal judgment dated 28.11.2022 for return of the seized personal cash of Rs.36,000/- which was included in the seized total cash of Rs.6,47,000/- from the Appellant and others. 5. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the Petitioner and the learned Assistant Public Prosecutor. I have perused the record. 6. Now the point for consideration is: “Whether the judgment in Crl.A.No.182 of 2024 dated 21.04.2025, passed by the learned XII Additional District & Sessions Judge, Vijayawada, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 3 7. 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. A Criminal Appeal could not be dismissed for default, even if the appellant/accused was absent and despite a conditional order passed by the learned Appellate Court was not complied with. 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 XLI rule 17 of the Code of Civil Procedure (for brevity ‘the C.P.C’). 9. The Hon’ble Apex Court in Khaili v. State of U.P1 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 criminal 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 an 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 case, 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 1 Criminal Appeal No. 137 of 1980 dt. 18.2.1980 4 argument by an advocate appearing on behalf of the appellants. We think that in a case such as this, what the learned Judge should have done was to appoint an advocate amicus curiae and then proceed to dispose of the appeal on merits”. 10. In Mangat Singh v. State of Punjab2 it is held at para No.2 as under: “2. It is unfortunate that the counsel had not appeared in the High Court in a case of appeal of conviction under Section 302 IPC. The question of 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 no 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 curie.” 11. In Shankar v. State of Maharashtra3 it is held that at para No.5 as 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 was 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 was 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 2 2005 (11) SCC 185 3 2019 (2) ALT (CRI.) (SC) 460 (D.B). 5 each to the satisfaction of the committal Court. The High Court shall proceed with the Criminal Appeal in accordance with law.” 12. 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 material irregularity. The learned Sessions Judge was expected to provide one more opportunity of hearing counsel for the appellant 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. 13. Ex-facie, the impugned order is impermissible and contrary to the procedure contemplated under ‘the Cr.P.C’. 14. Accordingly, this Criminal Revision Case is disposed of, setting aside the judgment dated 21.04.2025 in Crl.A.No.182 of 2024 passed by the learned XII Additional District & Sessions Judge, Vijayawada, which is unsustainable in law. The matter is remitted to the learned XII Additional District & Sessions Judge, Vijayawada, with a direction to hear the Criminal Appeal in Crl.A.No.182 of 2024 afresh and to pass an appropriate judgment within three (03) 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 6 in Khaili, Mangat Singh and Shankar, shall appoint a legal aid counsel or amicus curiae and hear and dispose of the appeal. 15. With the above direction, the Criminal Revision Case is disposed of. There shall be no order as to costs. As a sequel miscellaneous petitions pending, if any, shall stand closed. ________________________ Dr. Y. LAKSHMANA RAO, J Dated: 21.11.2025 VTS