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Synopsis

The Supreme Court recently observed that though the high courts have the power to decide a revision petition under Section 401 of the Code of Criminal Procedure, in absence of the advocate for the revision petitioner, normally, it should avoid adopting the said course when the order under challenge is that of conviction.

A bench of Justices Abhay S Oka and Ujjal Bhuyan opined the high court can always appoint a legal aid lawyer to espouse the cause of the appellant in such cases.

Dealing with a special leave petition, the apex court set aside the high court's order, which dismissed the revision petition filed by appellant Ganesh Shetti against his conviction, even though his counsel was not present.

The appellant was convicted by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act. The conviction was confirmed by the sessions court in appeal. By the impugned judgment, the high court had dismissed the revision petition preferred by the appellant for challenging the order of conviction.

The impugned judgment read thus: "Learned counsel for the petitioner/accused remained absent. However, revision petition cannot be dismissed for default and it has to be heard and decided on merits. The same is disposed of on merits.”

The bench noted it was not a case that the appellant was repeatedly absent which prevented the high court from taking up the criminal revision petition for hearing. The revision petition was filed by the appellant against the order of conviction.

The court felt, "The High Court ought to have given a reasonable opportunity to enable the appellant to procure presence of his advocate. The High Court could always appoint a legal aid lawyer to espouse the cause of the appellant. However, that was not done and the High Court has proceeded to decide the revision petition against an order of conviction on merits and has dismissed the same."

The top court set aside the impugned judgment and order of the high court and restored the criminal revision petition to the file of the High Court of Karnataka at Bengaluru.

The restored revision petition should be listed before the roster bench and the parties to this appeal shall remain present. No further notice shall be served by the high court to the parties, the bench clarified.

The high court should fix a date for hearing and shall proceed to decide the revision petition, in accordance with law, the court ordered.

The counsel appearing for the respondent stated that the respondent had withdrawn a sum of Rs 2,40,000 deposited by the appellant.

The court said the withdrawal would be subject to the final outcome of the revision petition, and the high court will pass an appropriate order on that behalf at the time of the disposal of the revision petition.

It ordered that the amount deposited by the appellant in the apex court should be transferred to the High Court of Karnataka at Bengaluru.

The said amount as well as the amount, if any, lying deposited with the high court, should be invested in the interest-bearing fixed deposit account in any nationalized bank, till the disposal of the revision petition, the bench said.

Case Title: Ganesh Shetti Vs Rajan Chaudhary