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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1258  OF 2013 (SPECIAL LEAVE PETITION (CRL.)NO.2163 OF 2013)  

SUNDER & ORS. APPELLANT(S)

VERSUS

STATE OF U.P.                  RESPONDENT(S)

O R D E R

1. Leave granted.

2. This  appeal  is  directed  against  the  judgment  and  order  

passed by the High Court of Judicature at Allahabad in Criminal  

Appeal No.1104 of 1981, dated 19.11.2012.

3. The learned Sessions Judge has convicted and sentenced the  

accused–appellants  for  the  offences  punishable  under  Sections  

395/397 of the Indian Penal Code, 1860.

4. Being  aggrieved  by  the  aforesaid  orders,  the  accused  

preferred  an  appeal  before  the  High  Court.  Since  the  accused-

appellants could not engage the services of a lawyer, the High Court  

had provided an amicus curaie to the accused-appellants to argue the  

case on their behalf.

5. On the date when the matter was fixed for hearing, the  

amicus curiae  was not present before the High Court. The Court,  

without appointing/providing a new  amicus curiae, has proceeded to  

pass the final orders on merits and thereby has partly confirmed the  

orders passed by the learned Sessions Judge.

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6. In our considered view, at the time of the hearing the  

appeal, if, for any reason, the amicus curiae was not present before  

the Court, the Court either should have adjourned the matter or  

should have appointed a new  amicus curiae to assist the accused-

appellants.  Since that has not been done by the High Court, in our  

considered opinion, the orders of the High Court become vitiated. In  

this view of the matter, we allow this appeal, set aside the orders  

passed by the High Court and remand the matter back to the High  

Court for fresh disposal in accordance with law. Needless to say  

that it can either avail the assistance of the already appointed  

amicus  curiae  or  appoint  a  fresh  amicus  curiae to  assist  the  

accused-appellants.

7. We make it clear that we have not expressed any opinion on  

the merits of the case.

8. The Criminal Appeal is disposed of accordingly.  

Ordered accordingly.

...........................J. (H.L. DATTU)

...........................J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI; AUGUST 23, 2013