Criminal Appeal cannot be decided on merits in the absence of the accused's counsel without appointing Amicus Curiae.

The respondent filed a complaint under Section 138 of the Negotiable Instruments (NI) Act, alleging the petitioner issued a cheque for ₹1,50,000/- to discharge a business debt, which was subsequently dishonored due to "insufficient funds"

The Trial Court convicted the petitioner on 01.09.2022, holding that she failed to rebut the statutory presumption under the NI Act

On appeal, the Sessions Judge, Shimla, upheld the conviction on 21.08.2024

The petitioner challenged these concurrent findings in revision, specifically contending that the Appellate Court decided the matter in her absence and without her counsel, thereby violating the principles of natural justice

1. Whether the Appellate Court is justified in deciding a criminal appeal on merits when the accused/appellant is unrepresented by counsel

2. Whether the non-appointment of an amicus curiae or legal aid counsel in the absence of the petitioner’s advocate violates Article 21 of the Constitution

The Court applied Section 397 of the CrPC regarding the narrow scope of revisional jurisdiction to rectify patent defects or jurisdictional errors

It relied heavily on the constitutional mandate of Article 21 and Article 22(1), establishing that the right to be defended by a lawyer is a fundamental right

The Court followed precedents including Mohd. Sukur Ali v. State of Assam, L. Laxmikanta v. State, and Christopher Raj v. K. Vijayakumar, which collectively hold that a criminal case should not be decided against an accused in the absence of counsel; instead, the court must appoint an amicus curiae or legal aid counsel.

The High Court observed that the Appellate Court's record showed the notice to the accused was returned because she had retired and shifted, and notice was only served on her counsel for "answering a charge," not specifically for final arguments

The Court reasoned that since the liberty of a person is at stake in criminal proceedings, deciding an appeal solely after hearing the respondent’s counsel puts the accused at a "serious disadvantage"

Applying the "heart and soul" principle of Article 21, the Court determined that the Appellate Court failed in its duty to appoint an amicus curiae when the petitioner's counsel failed to appear

This procedural lapse constituted a patent error of law, necessitating a remand rather than a decision on the merits of the cheque dishonor

It held that a criminal appeal cannot be decided on merits without ensuring the accused is represented by counsel, as it violates the right to a fair trial under Article 21

The case was remanded to the learned Sessions Judge, Shimla, for a fresh decision after hearing the petitioner, with specific directions to appoint legal aid counsel if the petitioner remains unrepresented