SUPREME COURT OF INDIA

Before:- U.C. Banerjee and B.N. Agrawal, JJ.

Criminal Appeal No. 359 of 2002 and Arising out of SLP (Crl.) No. 960 of 2002. D/d. 26.8.2002.

Ganesh Alias Manya Vasant Marade - Appellant

Versus

State Of Maharashtra - Respondent

Criminal Procedure Code, 1973, Section 385 - Appeal - Exparte proceedings - High Court awarded 10 years improvement to accused persons dealing ex parte with assistance of Additional Public Prosecutor - However there was assistance to Court but no assistance from accused point of view - Held, matter ought to be dealt with some amount of seriousness else entire Justice delivery system would be at peril - Absence of lawyer may be for special reasons but without ascertaining that continuance of leaving was not in accordance with law - Matter remitted back to High Court.

[Paras 2 and 3]

ORDER

U.C. Banerjee, J. - Leave granted.

2. The learned advocate appearing in support of the appeal during the course of hearing contended that in a matter, wherein the accused persons have been directed to undergo imprisonment for ten years, the High Court ought not to have dealt with the matter, as a first appellate court, ex parte in the absence of any lawyer. Significantly, the judgment of the High Court itself records that since no one appears, the matter was dealt with ex parte with the assistance of the learned Additional Public Prosecutor. Liberty of individual person is important even before the appellate forum and the appellate court has a duty enjoined to deal with the matter for a proper consideration of the evidence on record. While it is true that the learned Additional Public Prosecutor did assist the court but there is no assistance from the accused's point of view. It is unfortunate indeed that the matter being rather serious, has been dealt with in such a slipshod fashion. We do feel it expedient to record that these matters ought to be dealt with some amount of seriousness as otherwise the entire justice delivery system of the country would be at a peril, more so, the absence of the lawyer may be for some special reasons and without even ascertaining that continuance of hearing cannot be ascribed to be in accordance with the known principles of law.

3. In the wake of the aforesaid observations, we set aside the order of the learned Single Judge and remit the matter back to the High Court for being dealt with upon affording an opportunity of hearing to the accused.

4. The appeal is allowed accordingly.

Appeal allowed.