Holding

The High Court's order reversing the acquittal is set aside and the matter remitted for fresh consideration because the appellant was prejudiced by the absence of his authorized counsel.

Summary

Netraaj Singh was acquitted by a trial court of charges under IPC s.302 r/w s.149 on the ground of inadequate evidence. The State appealed, and during the pendency of the appeal the appellant obtained permission to replace his counsel with Mr. Ashutosh Singh. However, the cause list for the final hearing still named the earlier counsel, leaving the appellant unrepresented. The High Court proceeded to hear the appeal in his absence and reversed the acquittal, convicting him. The Supreme Court held that the appellant was prejudiced by the lack of proper representation, set aside the High Court's order, and remitted the matter for fresh consideration with the correct counsel listed. The appeal was allowed.

Issues considered

Whether a High Court can reverse an acquittal in the absence of the accused's duly authorized counsel, thereby violating principles of natural justice.
Whether the failure to reflect the change of counsel in the cause list amounts to prejudice warranting setting aside the appellate order.

Legislation cited

Indian Penal Code, 1860s. 149, s. 302

Subjects

change of counselright to representationprejudicereversal of acquittalnatural justicecriminal appealIPC 302IPC 149high court procedure

Judgment

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A NETRAJ SINGH
v.
.
STATEOFM.P.

MARCH 22, 2007

B [DR. ARlllTPASAYAT AND~ V. RA VEENDRAN, JJ.]

~-
Practice and Procedure-Change of counsel-Acquittal of accused-
appellant by Sessions Court-Appeal by State before High Court, during
c pendency of which, accused filed application for permission to change counsel
which was al/owed-However, on the day of final hearing in respect of the
appeal, the cause list did not reflect name of the new counsel-Consequently
there was no appearance on behalf of accused when the matter was taken -~
up for hearing-Reversal of order of acquittal by High Court in absence of
accused's counsel-Challenge to-Held: There was obvious prejudice to the
D accused-Hence judgment of High Court not sustainable-Matter remitted
back for fresh consideration-Penal Code, 1860-s.302 r/w s.149.
\
Appellant who was tried. for alleged commission of offences
I
punishable ,
under s.302 r/w. 149 IPC was acquitted by the Trial Court on ground of
inadequate evidence. The State filed appeal before High Court But when the
E matter was taken up for final hearing in respect of the appeal, there was no
appearance ori behalf of the appellant High Court proceeded to hear the appeal
in absence of counsel for the appellant and thereafter reversed the order of
his acquittal by holding him guilty of the charged offences. Hence the present
appeal
F ..
It was submitted before this Court that during pendency of appeal before
the High Court, the Appellant had filed an application for permission to
change the counsel which was allowed, but since name of the new counsel
was not reflected in the cause list for the concerned day in respect of the
appeal, the Appellant went unrepresented.
G
Allowing the appeal, the Court
_,,,...-
HELD: Since the name of counsel who had been permitted to appear on
behalf of the appellant was not rtflected in the cause list, obviously the - t

H 370
NETRAJ SINGH v.ST ATE OF M.P. [PASA YAT, J.] 371

appellant has beell' prejudiced. This is a case where the order of acquittal A
passed in favour of AP,pellant has been reversed by the High Court. In the
aforesaid circumstanees, the order of the High Court is set aside and the
matter remitted back for fresh consideration. The name of the new counsel
shall be indicated in the cause list and not the name of counsel who was earlier
appearing. (Paras 5 and 6) (372-C-EJ
B
CRIMINAL APPELLATE JURISDICTION : Crl. M.P. No. 10384 of 2004.

IN

Criminal Appeal No. 1006 of2006.
c
From the Judgment & Order dated 02.05.2006 of the High Court of
Madhya Pradesh at Jabalpur in Criminal Appeal No. 741 of 1992.

R.P. Gupta, Parmanand Gaur and Jamshed Bey for the Appellant.

Vibha Datta Makhija for the Respondent. D
The Judgment of the Court was delivered by
~
DR. ARIJIT PASAY AT, J. 1. Challenge in this appeal is to the judgment
rendered by a Division Bench of the Madhya Pradesh High Court reversing
the order of acquittal passed by the trial Judge i.e. learned Additional Sessions E
Judge, Narsinghpur. Appellant was tried for alleged commission of offences
punishable under Sectio~ 302 read with Section 149 of the Indian Penal Code,
1860 (in short the 'IPC'). The trial Court found the evidence to be inadequate
and held the accused:appellant not guilty and accordingly directed the acquittal.

2. The State preferred an appeal questioning the said order of acquittal. F
It appears that the matter was listed for hearing on 1.5.2006. There was no
appearance on behalf of the present appellant who was the respondent in the
appeal before the High Court when the matter was taken up for final hearing.
The High Court proceeded to hear the appeal in the absence of learned
counsel and reversed the order of acquittal and held the appellant guilty of
G
charged offences.

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3. It is the stand of learned counsel for the appellant that during the
pendency of the appeal the appellant filed an application for permission to

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\..,
change the counsel and sought permission to engage one Mr. Ashutosh
Singh, Advocate to agpear on his behalf in place of Mr. Anil Nima who was
I H
372 SUPREME COURT REPORTS (2007] 4 S.C.R.

A earlier appearing at the time of hearing. By order dated 31.1.2005 the application
was allowed and the Court granted pennission to Mr. Ashutosh Singh to
appear on behalf of the appellant in place of earlier counsel. But in the cause
list for the concerned day in respect of the appeal, the name of earlier counsel
appeared. According to learned counsel for the appellant in view of the
B aforesaid position, the appellant was •mrepresented.

4. Learned counsel for the respondent did not dispute the factual
position as stated by the appellant.

5. Since the name of learned counsel who had been pennitted to appear
on behalf of the present appellant was not reflected in the cause list, obviously
C the appellant has been prejudiced. This is a case where the order of acquittal
passed in favour of the appellant has been reversed by the impugned judgment
of the High Court.

6. In the aforesaid circumstances, we set aside the order of the High
D Court and remit the matter for fresh consideration. To avoid unnecessary
delay, let the parties appear before the High Court on 13th April, 2007 so that
appropriate orders can be passed by the concerned bench. The name of Mr.
Ashutosh Singh who was pennitted to appear on behalf of the present
appellant by order dated 31.1.2005 shall be indicated in the cause list and not
the name of learned counsel who was earlier appearing. We make it clear that
E by remitting the matter to the High Court for fresh consideration we have not
expressed any opinion on the merits of the case.

7. The appeal is allowed to the aforesaid extent.

B.B.B. Appeal allowed.
F