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PETITIONER: G. RAJ MALLAIAH AND ANOTHER

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT27/04/1995

BENCH: A.S. ANAND, S. RAJENDRA BABU.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. Rajendra Babu, J.      Leave granted.      The appellants  were chargesheeted for offences arising under Section  304 I.P.C.  and Section  3 and 4 of the Dowry Prohibition  Act   read  with   section  498A,   I.P.C.  The allegation made  in the  chargesheet is  that one G. Madhavi Latha was  married to  Manik Prabhu  the son  the appellants herein on  8.6.1983; that  the decreased  Madhavi Latha, the appellants and her husband were living in Hyderabad, that on 27.6.1989 Madhavi Latha is said to have committed suicide by setting fire  to herself in the presence of her children and she succumbed  to the same on 29.6.1989; that the appellants were ill-treating  the deceased by burling abuses at her and did not  provide proper  or timely food as she did not bring enough money  towards dowry.  In the trial 20 witnesses were examined on  behalf of the prosecution and several documents were market  while the  defence examined  two witnesses  and also got several documents marked. The trial court held that the offences  arising under Section 304B I.P.C. and Sections 3 and  4 of  the Dowry  Prohibition Act were not established and acquitted  them of  the said charges. However, the trial court convicted  the appellants  for offices  arising  under Section  498A   and  sentenced   them  to   sufer   rigorous imprisonment for  a period of two years and to pay a fine of Rs. 200/-  each in default to suffer simple imprisonment for one month.      Aggrieved  by   the  said  conviction,  the  appellants preferred an appeal being Criminal Appeal No. 577 of 1993 on the file  of the  High Court.  The  appellants  engaged  the services of  Shri Shankar  Rao  Biloliker  and  Shri  Milind Gokhale and  subsequently they  were replaced  by Shri  Anil Kumar and Shri C. Praveen Kumar, Advocates who filed memo of appearance with  consent of  the learned  counsel  appearing earlier in  the   case. The appeal was listed for hearing on 12.8.1997 when  Mr. Milind Gokhale filed a memo stating that the appellant  had taken away the file and wanted to engaged some other  counsel and  he   had already  endorsed  his  no objection on  the Vakalstnama.  The matter  was  listed  for hearing  on  14.8.1997,  26.8.97,  27.8.97  and  finally  on

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28.8.1997 on  which date  the matter  was diseissed.  On all these dates  the name of Mr. Milind Gokhale was shown as the learned counsel  for the appellants whereas in fact Mr. Anil Kumar and Shri Praveen Kumar had filed memo of appearance on 25.1.1993. However, that information was not put up with the file, fed into the computer either, nor printed in the cause list. In those circumstances the appeal came to be dismissed in the absence of the learned counsel for appellants.      An application  was filed  by the parties under section 482 of the Criminal Procedure Code in Miscellaneous Petition No. 4201  of 1997  seeking for  setting aside  the  judgment passed  on  28.8.1997  dismissing  their  appeal.  The  said application set out the facts to which were have adverted to new about  the change  of the advocates and the names of the new advocates appearing in the case not having been shown in the cause list. In fact, the High Court held an enquiry into the matter  and called  upon the office to make a report and the said  report a   copy  of which is made available to us, reflects what we have stated about the mistake of the office in not  indicating the  names of the advocates and about the change of  the advocates.  It is  clearly  admitted  in  the Report that  by mistake  the names of Mr. Anil Kumar and Mr. Praveen Kumar  were not  shown in  the cause  list. The High Court however,  dismissed the  petition observing  that  Mr. Milind Gokhale whose name was shown in the cause list should have informed  the appellants and the criminal appeal having been disposed  on   merits, the  same could not be restored. The respondent remained unrepresented.      It is  no doubt  true that  it is  open to the Court to dispose of  an appeal  on merits  even in the absence of the learned counsel  appearing for  the parties when the case is set down for hearing and the advocate or the party concerned does not appear. However, when the learned counsel could not appear before  the Court  not on account of the fault either of the appellant or the advocates themselves, but on account of mistake  committed by  the Registry  of the High Court in not showing  the names  of the  counsel in  the  cause  list properly and  the counsel  not being aware of the listing of the case  before the  Court in such a master we do not think that principle should be extended.      We may  notice a  decision of  this Court in Bani Singh vs. State  of Uttar  Pradesh (AIR  1996 SC  2439) in which a bench of  three Judge  considering the  scope of Section 385 and 386,  Cr. P.C.  took the view that while dealing with an appeal under  the Code, both the appellant and his lawyer if absent on  the dates  set down  for hearing the Court is not bound to  adjourn the  case and may dispose of the appeal on merits and  dismissal of  the appeal  simplicitor  for  non- prosecution is  not contemplated. In the aforesaid decision, it is also noticed that by adopting this procedure if a case is decided  on merits in the absence of the appellant or his advocate, the higher court can remedy the situation if there has been  a failure of justice. In the present case the case was set  down  for  hearing  on    different  dates  without notifying the  names of  the  advocates  appearing  for  the appellant, but  showing the  name of  the advocate  who  had retired from  the case.  Therefore, it could not stated that the appellant  or his  advocate had notice of hearing of the case on  the dates set down for hearing. Hence, we must hold that the decision in the case without hearing the appellants or their advocate has resulted in miscarriage of justice and the principle stated in the decision in Bani Singh vs. State of U.P.  does not  come in  the way  of  the  view  we  have expressed in this case.      Therefore the  order made  by the High Court dismissing

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the appeal  is set aside and the matter shall stand remitted to the  High Court  which shall be disposed of in accordance with law  by restoring  the appeal  to  its original number. The appeals are allowed accordingly.