Paragraph numbers below are the court’s original numbering, recovered from the source text.
5. This matter was placed for admission hearing on September 17, 2007. Attention of the Court was invited to Ground 'D' of the Special Leave Petition wherein it was stated G that the High Court had decided the appeal without hearing the counsel forthe accused. In the light of the above contention, the Court passed the following order; "It was stated in ground No. 'D', page 57 of the special leave petition that the High Court was not justified in deciding the appeal without nearing the counsel for the MADHUBAN v. STATE OF U.P. [C.K. THAKKER, J.] petitioner and merely permitted him to file "written A arguments". So far as the copy of the High Court judgment which has been annexed to the special leave petition is concerned, it does not state anything with regard to appearance of advocates. In the light of the above statement and ground, issue notice l returnable in six weeks. Record and proceedings of the courts below be called for within four weeks."
6. Record and proceedings of the courts below had been c received and the matter has been placed before us for final hearing.
7. We have heard the learned counsel for the parties.
8. In view of the fact that the notice was only with regard to D ground 'D',.we heard the learned counsel forthe parties only on that limited issue. So far as the judgment is concerned, it no doubt records submissions of the learned counsel for the appellant-accused in various paragraphs. In the beginning of the judgment, however, there is no reference as regards E appearance of advocates.
9. From the record and proceedings, it clearly appears that the Criminal Appeal was heard on November 21, 2006 and the following order was passed; "Hon'ble O.P. Srivastava, J. """- Hon'ble M.K. Mittal, J. Heard Sri M.P. Verma counsel for appellant Sri H.A. Alvi appearing for the State. Judgment is reserved. In the meantime on prayer of appellant's counsel 5 days' time is granted to file arguments in writing."
10. It was contended on behalf of the appellant that on (2008] 7 S.C.R. November 21, 2006, when the appeal was heard by the Division Bench, the learned counsel for the appellant was unable to argue the case due to swelling on vocal cord infected with influenza. The learned counsel also stated that the said fact had been brought to the notice of the Court even in an application for B extension of time for filing written statement. An affidavit in support of such assertion was also filed in the High Court and it is very much there in the record and proceedings.
11. We went through the records and proceedings before the High Court and we are satisfied that the statement made by C the learned counsel for the appellant is found to be correct. In the application for extension of time dated 24th125th November, 2006, it was stated that 'for the facts, reasons and circumstances stated in the accompanying affidavit', time for filing written statements might be extended. In the accompanying affidavit, D in paragraph 2, it was stated as under; "2. That the above noted Crl. Appeal was listed for hearing on 21.11.2006, before the Division Bench, comprising of Hon. Mr. O.P. Srivastava and Hon. Mr. M.K. Mittal 'JJ', but unfortunately the counsel for the deponent was unable to argue the case, due to swelling on vocal cord infected with influenza."
12. It appears that the learned advocate appearing on behalf of the appellant before the High Court could not make oral submissions because of infection in vocal cord.
13. In view of the above facts and circumstances, in our opinion, ends of justice would be met if we allow this appeal, set aside the order passed by the High Court and remit the matter to the High Court for fresh disposal in accordance with G law.
14. Though the learned advocate appearing for the State submitted that the case is of double murder and injured witness who was very much at the scene of offence, who was assaulted H and sustained injuries has been believed by the courts below – -, MADHUBAN v. STATE OF UP. [C.K. THAKKER, J.] and even on that ground, no interference is called for. In our opinion, however, in the light of what is observed by us hereinabove, it would be appropriate if the High Court hears the learned counsel for the appellant-accused and passes an appropriate order in accordance with law. Only on that ground, the appeal is allowed, the order passed by the High Court is set aside and the matter is remanded for fresh disposal in accordance with law.
15. We may observe that we have not entered into the merits of the matter and as and when the matter is placed for hearing before the High Court, the Court will decide the same C on its own merits.
16. Ordered accordingly. S.K.S. Appeal allowed