TMI Blog1999 (10) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Single Judge: On scrutiny of the evidence, it appears that the prosecution witnesses have proved the manner of occurrence whereas P.Ws.6, 8 and 14 have identified the dacoits by face. It appears that P.Ws.6, 8 and 14 had also stated before the Investigating Officer about the commission of the dacoity and they had also disclosed the names of the dacoits. After scrutiny of evidence, it appears to me that the prosecution has proved the charges against the appellants beyond all reasonable doubt. Apparently a serious error has been committed by the learned Single Judge which looms large in the aforesaid passage. He took into account a set of legally forbidden materials in reaching the conclusion. Appeal allowed and remit the case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their appeal in the High Court, as they now put the blame on the Advocate whom they engaged there. No doubt the High Court could have reported the dereliction of the Advocate to the Bar Council concerned for appropriate action in the matter. 4. When the Counsel engaged by the appellants in a criminal appeal does not turn up there is no obligation for the Court of Appeal to wait for him or even to adjourn the case awaiting his presence. The earlier view of a two Judge Bench of this Court in Ram Naresh Yadav and Ors. v. State of Bihar - AIR 1987 SC 1500, that in such a situation the Court could only dismiss the appeal for default, has been held erroneous by a three Judge Bench of this Court in Bani Singh and Ors. v. State of U.P. - 1996 (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing in the law to preclude it from doing so. 6. The question before us is whether there was miscarriage of justice on the fact situation in this case as the learned Single Judge of the High Court proceeded to decide the appeal unaided by the arguments of an advocate at- least by appointing as Amicus Curiae to assist the court. On a deeper analysis we feel that there was miscarriage of justice in this case. To substantiate it, we make a brief reference to the facts of the present case. 7. According to the prosecution story, a dacoity was committed in the house of the informant on the night of 16.11.1980, by a large number of dacoits who were armed with firearms. The commotion ensued attracted a number of persons of the locality who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by Counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisable to seek the assistance of a legal talent. 10. The present case seems to be a glaring example of failure of justice due to the absence of such legal assistance. Learned Single Judge of the High Court chose to confirm the conviction and the severe sentence passed on the 12 appellants after scrutinizing the evidence on its own, for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated. If a counsel was appointed to argue for the accused (when the Counsel engaged by the accused did not turn up) learned Single Judge could have, most probably, averted such a legal folly. 13. The only course open to us in the aforementioned situation is to remit the case to the High Court for disposal of the appeal afresh in accordance with law. If no counsel for the accused turns up we request the High Court, on the peculiar facts of this case, to appoint an advocate at state cost to argue for the accused. 14. We, therefore, set aside the impugned judgment. The appeal filed by the appellants before the High court will stand restored for fresh disposal according to law and in accordance with the observations made above. If the sent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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