CRL RC(MD)/859/2026 of Manikandan Vs State Of Tamilnadu Rep By In on 30 October 2026

ORDER

Challenging the judgment dated 09.04.2026 of the I Additional District and Sessions Judge, hereinafter referred to as ‘the appellate court’, in the criminal appeal in CA No.15/2025, the revision petitioners/A2 and A3 have filed this Criminal Revision Petition under S.438 BNSS.

02. For the sake of convenience, the parties are referred hereunder according to their litigative status and ranking in this criminal revision, 'the revision petitioners' and 'the revision respondent', unless the context otherwise requires.

03. Prefatory facts are that the revision petitioners and A1 were convicted by the Additional Assistant Sessions Judge, Thirunelveli, hereinafter referred to as ‘the trial court’, in SC No.509/2025 for the offences punishable under S.307 IPC, that challenging such conviction and the sentence of 5 years RI with a fine of Rs.2,000/-, in default, the sentence of 1 year RI, the revision petitioners and A1 had filed a criminal appeal in CA No.15/2025 on the file of the appellate court and

that the appellate court having held that the prosecution has not proved the offence under S.307 IPC beyond all reasonable doubt has dismissed the criminal appeal as against the revision petitioners for non prosecution but allowed the criminal appeal in favour of A1.

04. Challenging such dismissal of the criminal appeal as against the revision petitioners for non prosecution, the revision petitioners have filed this criminal revision.

05. Heard both sides, and perused all the materials available.

06. Learned counsel for the revision petitioner would submit that a criminal appeal cannot be dismissed for non prosecution, that the appellate court should have appointed either a legal aid counsel or an amicus curie and decided the case accordingly, that the appellate court should not have dismissed the criminal appeal as against the revision petitioners in one line order, that therefore, the dismissal of the criminal appeal as against the revision petitioners is not legal and that therefore, this criminal revision may be allowed with suitable orders.

07. Learned Counsel for State of TN(Crl.side) would fairly

concede that a criminal appeal cannot be dismissed for non prosecution and that therefore, a considered order may be passed.

08. Short question is whether a criminal appeal can be dismissed for non prosecution?

09. On perusal of the judgment which is under challenge, this court finds that (a) the appellate court has noted in the preamble that ‘2nd and 3rd Appellants called absent, and no representation, and the appeal against the 2nd and 3rd appellants is dismissed’ (extracted as such) and (b) the appellate court has held in the operative part of the judgment that ‘(iii) the criminal appeal is dismissed against the 2nd and 3rd accused by way of non prosecution (extracted as such).

10. At this juncture, this court would like to refer to the decision of the Hon’ble Supreme Court in Bani Singh and Others V State of UP (1996 SCC (4) 720) where it has been held as under: ‘….. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the

record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record.’

11. In Madan Lal Kapoor V Rajiv Thapar and Others (2007) 3 SCC (Cri) 437), the Hon’ble Supreme Court has held as under: ‘4. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits.

12. K.S.Panduranga V State Of Karnataka (2013 (3) SCC

721) is also a case where the Hon’ble Supreme Court has held as

under: ‘22. From the aforesaid decision, the principles that can be culled out are (i) that the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining the merits; (ii) that the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; (iii) that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (iv) that it can dispose of the appeal after perusing the record and judgment of the trial court;

(v) that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.’

13. Therefore, having regard to the aforesaid decisions, this court holds that a criminal appeal cannot be dismissed for non prosecution.

14. What stirs the mind of this court are the findings of the appellate court in its judgment. Relevant excerpts thereof would read as under (extracted as such):

‘10.Point for consideration:

1. Whether the accused committed the offence under section.307 of the IPC beyond a reasonable doubt?

2. Whether the judgment of conviction recorded by the learned Additional Assistant Sessions Judge, Thirunelveli, in S.C No.509/2021 dated. 01.03.2025 is perverse, warranting interference by this court as an appellate court?’

‘11.18. As discussed above, the oral and documentary evidence, the prosecution has not proved the offence under section.307 of the IPC beyond a reasonable doubt against the accused. Accordingly, point No.1 is decided.’ ‘12. Answer to point No.2:

(i) As discussed in point No.1, this appellate court has found the 1 to 3 accused not committed the offence under section.307 of the IPC and the prosecution has not proved the offence beyond the reasonable doubt.

(ii) Further, the trial court also convicted the accused for the offence under Section.307 of the IPC without appreciating the contradiction and uncorroborated evidence of the prosecution witnesses. So, this appellate court would like to interfere with the findings and conviction of the trial court. Accordingly, point no.2 is decided.’

‘13. In the result,

(i) This criminal appeal is allowed, and the sentence imposed against the 1st accused by the learned Additional Assistant Judge, Thirunelveli, in S.C. No.509/2021 on 01.03.2025 is hereby set aside, and the Appellant is acquitted from the case and set at free and fine amount if any paid by him shall be refunded to him.

(ii) The bail Bond if any, executed by the Appellant, is hereby terminated.

(iii) The criminal appeal is dismissed against the 2nd and 3rd accused by the way of non-prosecution.’

15. It is therefore clear that the appellate court, having held in Point No.1 that the prosecution has not proved the charge under S.307 IPC beyond all reasonable doubt and in point No. 2 that all the three accused have not committed the offence punishable under S.307 IPC and the prosecution has not proved the charge under S.307 IPC beyond all reasonable doubt, has simply dismissed the criminal appeal as against the revision petitioners/A2 and A3 for non prosecution but allowed the criminal appeal in favour of A1 acquitting him of the charge under S.307 IPC.

16. Ergo, having regard to the findings of appellate court that the prosecution has not proved the charge under S.307 IPC beyond all reasonable doubt and that all the three accused have not committed the offence punishable under S.307 IPC, this court holds that the dismissal of the criminal appeal as against the revision petitioners for non prosecution is erroneous and perverse and that therefore, the revision petitioners are entitled to get an order, allowing this criminal revision and setting aside the dismissal of the criminal appeal as against the revision petitioners for non prosecution in such terms as detailed hereunder.

17. In fine, this criminal revision petition is hereby allowed, (a) setting aside the dismissal of the criminal appeal in CA No.15/2025 as against the revision petitioners/2nd and 3rd appellants/A2 and A3 for non prosecution,

(b) acquitting the revision petitioners/2nd and 3rd appellants/A2 and A3 of the charge under S.307 IPC ,

(c) setting the revision petitioners/2nd and 3rd appellants/A2 and A3 at liberty, (d) directing the refund of the fine amount, if paid, to the revision petitioners/2nd and 3rd appellants/A2 and A3, and

(e) cancelling the bail bond executed by the revision petitioners/2nd and 3rd appellants/A2 and A3. 30-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No gns

To

1. The1st Additional District and Sessions Judge, Tirunelveli

2. The Additional Assistant Sessions Judge, Tirunelveli

3. The Inspector Of Police, Tirunelveli Junction Police Station Tirunelveli District

4. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai

B.MURUGESAN, J. gns Order made in CRL RC(MD)No.859 of 2026 30-10-2026