Gopal Kishan Sharma, J.
1. Notice of this revision petition has been given to the learned Public Prosecutor. With the consent of the learned Public Prosecutor this revision petition is disposed of at the admission stage.
2. The petitioners are being tried for the offence Under Section 326 & 323, IPC by the learned Sessions Judge, Tonk. The case was fixed for final arguments on 17-12-84. On that date, Bhanwar Singh who is a Government Servant and was deputed in the election duty for parliamentary constituency could not attend the Court and his counsel requested the learned Sessions Judge to adjourn the case. He also requested that his client Bhanwar Singh wanted so engage some lawyer from Jaipur, who could not come on that day, so the case be adjourned to any other date. The learned Sessions Judge did not agree with the request of the counsel for the petitioner Bhanwar Singh and he after hearing the learned Public Prosecutor decided the case on that very day. Against that judgment, the present revision petition has been preferred as the petitioners have been found guilty for the offence Under Section 326 and 323, IPC.
3. The learned counsel for the petitioners contended that on the date fixed for final hearing the petitioner Bhanwar Singh could not attend the Court, as he was busy in election duties. This fact was brought to the notice of the learned Sessions Judge and the learned counsel requested for adjournment of the case, as the file was not with him. The petitioner Bhanwar Singh wanted to engage some counsel from Jaipur, but could not come on that date, so the learned Advocate on behalf of Bhanwar Singh had to say no instructions and could not argue the case. The learned Sessions Judge should have either adjourned the case or should have appointed some Amicus Curiae to argue the case on behalf of the petitioners. In support of his argument he has relied upon Khaili v. State of UP 1982 SCC (Cr.) 143 and Kabira v. State of UP (1982) SCC (Cr.) 144.
4. I have considered the arguments advanced by the learned counsel for the petitioners and also perused the decisions cited by him, as mentioned above.
5. In Khaili's case, the fact is that before the High Court of Allahabad the learned Advocate appearing on behalf of the appellants stated that he has no instructions in the case and, therefore, he would not argue it. The reason given by the learned Advocate was that he had addressed the communication to his client intimating that the appeal would be taken up on 20-8-79 and they should reach immediately and pay the fee and expenses for the paper book so that the case may be argued. This communication could not reach the client and as such he pleaded no instruction. On these facts, their Lordships of the Supreme Court observed as under:
The learned Advocate in the present case however refused to argue the case and consequently the learned Judge went through the record of the case and decided the appeal. Now one thing is clear that however deligent the learned Judge might have been and however careful and anxious to protect the interest of the appellants, his effort could not take the place of argument by an Advocate appering on behalf of the appellants. We think that in a case such as this, what the learned Judge should have done was to appoint an Advocate Amicus Curiae and then proceed to dispose of the appeal on merits.
With the above observations, their Lordships of the Supreme Court had remanded the case to the High Court for being disposed of in accordance with law after hearing the appellants.
Similarly, in the case of Kabira, it has been observed. 'We are therefore, of the view that there has not been a proper disposal of the appeal preferred by the appellants. The appeal could not be dismissed by the learned Judge for default; of appearance. If the appellant was not present, the learned Judge should have appointed some Advocate as Amicus Curiae and then proceeded to dispose of the appeal on merits.
6. The above observations, were made by their Lordships of the Supreme Court while allowing the appeal set aside the order of the High Court and remanded the case for hearing on merits.
7. In the present case also when the learned Advocate for Bhanwar Singh informed the Court that he had no instructions from the client and that the file is also not with him, the learned Sessions Judge should have appointed Amicus Curiae and then should have disposed of the case. The learned Sessions Judge himself perused the record and with the assistance of the learned Public Prosecutor disposed of the case. In view of the Jaw cited above, the action of the learned Sessions Jude cannot be treated as a correct procedure. Therefore the judgment dated 17-12-84 cannot be maintained.
8. The revision petition is, therefore, accepted. The judgment of the learned Sessions Judge dated 17-12-84 is set aside. The case is remanded to the learned Sessions Judge, Tonk for being disposed of in accordance with law after hearing the petitioners. I would like to mention here that it is for the petitioners to take their counsel from Jaipur or engage another counsel of their choice, but the case would not now be adjourned oh the ground that their counsel is not present. I Would further like to mention that this revision petition has not been disposed of on merits but on a technical ground. It is, therefore, expected that the learned Sessions Judge would hear the case with open mind without prejudice to the petitioners. The petitioners are directed to appear before the learned Sessions Judge, Tonk on 22-2-85.