The Madras High Court has reaffirmed that criminal appeals against conviction cannot be dismissed summarily for non-prosecution or absence of counsel, holding that appellate courts must dispose of such appeals on merits after perusing the record. This judgment clarifies the mandatory procedural safeguards under Sections 385 and 386 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and reinforces the principle that default dismissals violate the right to fair hearing.
Background & Facts
The Dispute
The case arose from a criminal prosecution under Sections 341, 326, and 307 of the Indian Penal Code (IPC). The petitioner, Selvam, was convicted by the Assistant Sessions Court cum Chief Judicial Magistrate, Theni, in S.C.No.93 of 2022 for attacking the defacto-complainant with a knife, resulting in grievous injuries. The trial court sentenced him to seven years of rigorous imprisonment under Section 307 IPC and imposed a fine of ₹1,000.
Procedural History
The case progressed through the following stages:
- 24.11.2021: Crime registered under Crime No.487 of 2021 for offences under Sections 341, 326, and 307 IPC.
- 27.10.2023: Conviction and sentencing by the Assistant Sessions Court cum Chief Judicial Magistrate, Theni.
- 2023: Appeal filed before the Additional District Judge (FTC), Theni, in Crl.A.No.147 of 2023.
- 05.11.2024: Appeal dismissed summarily for non-appearance of the appellant or counsel.
- 2025: Petitioner arrested following dismissal of appeal; filed criminal revision petition under Section 438 read with 442 of BNSS.
Relief Sought
The petitioner sought setting aside of the appellate court’s order dismissing the appeal summarily and remand of the matter for disposal on merits. Additionally, he prayed for bail during the pendency of the appeal.
The Legal Issue
The central question before the court was whether an appellate court can dismiss a criminal appeal against conviction summarily for non-prosecution or non-appearance of the appellant or their counsel, or whether it is obligated to dispose of the appeal on merits under Sections 385 and 386 of the BNSS.
Arguments Presented
For the Petitioner
The petitioner contended that once an appeal against conviction is admitted, the appellate court is duty-bound to decide it on merits. Relying on the Supreme Court’s decision in Bani Singh v. State of U.P., the petitioner argued that summary dismissal for non-prosecution is impermissible and violates the principles of natural justice. It was further submitted that the appellate court failed to comply with the mandatory procedural requirements under Sections 385-386 BNSS, which require perusal of the record and hearing on merits.
For the Respondent
The respondent, represented by the Additional Public Prosecutor, did not dispute the legal position but submitted that the petitioner must cooperate in the proceedings before the appellate court. The respondent did not oppose the grant of bail subject to conditions.
The Court's Analysis
The court undertook a detailed examination of the procedural requirements under Sections 385 and 386 of the BNSS, which correspond to Sections 385 and 386 of the Code of Criminal Procedure (CrPC), 1973. The judgment relied heavily on the Supreme Court’s decision in Bani Singh v. State of U.P., which overruled the earlier judgment in Ram Naresh Yadav v. State of Bihar and reaffirmed the principles laid down in Shyam Deo Pandey v. State of Bihar.
The court observed:
"A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders."
The court emphasized that the plain language of Sections 385-386 BNSS mandates that once an appeal is admitted, the appellate court must call for the record and dispose of the appeal on merits after hearing the appellant or their counsel. The court further noted that the appellate court is required to cross-check the reasoning of the trial court with the evidence on record to ensure consistency with the material available.
The judgment also cited subsequent Supreme Court decisions to reinforce this position:
- In K. Muruganandam v. State, the Supreme Court held that if the accused is not represented, the court must appoint an amicus curiae to proceed with the hearing rather than dismiss the appeal for default.
- In Shankar v. State of Maharashtra, the Supreme Court reiterated that once an appeal against conviction is admitted, the appellate court must either appoint an amicus curiae or nominate counsel through the Legal Services Authority to hear the matter on merits.
The court concluded that the summary dismissal of the appeal by the Additional District Judge (FTC), Theni, was contrary to law and violated the mandatory procedural safeguards under Sections 385-386 BNSS.
The Verdict
The Madras High Court allowed the criminal revision petition, setting aside the order of the Additional District Judge (FTC), Theni, dated 05.11.2024. The matter was remanded to the appellate court for disposal on merits. The petitioner was also granted bail subject to conditions, including execution of a bond for ₹10,000 with two sureties and monthly appearances before the trial court.
What This Means For Similar Cases
Appellate Courts Must Decide Appeals on Merits
The judgment reaffirms that appellate courts cannot dismiss criminal appeals against conviction for non-prosecution or non-appearance. Practitioners must ensure that:
- Appeals are heard on merits after perusal of the record.
- If the appellant is unrepresented, the court must appoint an amicus curiae or counsel through the Legal Services Authority.
- The reasoning of the trial court is cross-checked with the evidence on record.
Procedural Safeguards Are Mandatory
- Sections 385-386 BNSS impose a duty on appellate courts to dispose of appeals on merits, not by default.
- Default dismissals are liable to be set aside, as they violate the right to fair hearing under Article 21 of the Constitution.
Bail Conditions for Appellants
- Appellants who were on bail during the pendency of the appeal cannot be automatically arrested following dismissal of the appeal for non-prosecution.
- Courts must consider bail applications sympathetically, especially where the dismissal order is set aside and the matter is remanded for fresh disposal.
