Barun Kumar Saha vs Sukdev Saha and Others

Ashim Kumar Roy, J.—The petitioner challenging his conviction u/s 138/141 of the Negotiable Instruments Act and sentence passed thereunder by the learned Additional Chief Judicial Magistrate, Calcutta preferred an appeal being Criminal Appeal No. 10 of 2009 before the learned Chief Judge, City Sessions Court, Calcutta. The said appeal was filed along with an application for condonation of delay. On March 3, 2009 the learned Chief Judge directed to issue notice upon the opposite parties as regards to the application for condonation of delay and on April 17, 2009 the learned Appellate Court dismissed the said appeal for non-appearance of the counsel of the appellant.

The subject matter of challenge in the instant criminal revision is the said order of dismissal which is quoted below:

Again the appellant has taken no steps although it is now 12 noon. None appears on behalf of the appellant on repeated calls. Yesterday also no steps was taken by the appellant. Accordingly, the instant appeal being not admitted stands dismissed in limini. The appellant must surrender before the learned Court below within a fortnight.

Heard the learned counsel appearing on behalf of the petitioner as well as learned counsel appearing on behalf of the State. In spite of repeated calls, none appears on behalf of the private opposite party. Affidavit of service filed in Court be kept with the records.

It is now well settled that no appeal can be dismissed for default on the ground of absence of the counsel and must be decided on merit. In case of Bani Singh and ohters Vs. State of U.P., , it was held by the Apex Court that no appeal should be dismissed in default but should be decided on merit and if despite notice neither the appellant nor his lawyer appears, still the Court should decide the appeal on merit. If the appellant is in jail in that case, Court can appoint a lawyer at State expense to assist it or may appoint any advocate as amicus curiae. In this connection reliance may also be place in the cases of (i) Shivaji Narayan Bachhav Vs. State of Maharashtra, , (ii) Badu v. State of Rajasthan, reported in 1995 SCC (Cri)990 and (iii) Kishan Singh Vs. State of U.P.,

Thus, the impugned order of dismissal of appeal is not in accordance with law and cannot be sustained.

In the result, this criminal revision succeeds and the impugned order stands set aside.

The Criminal Appeal being No. 10 of 2009 along with the application u/s 5 of the Limitation Act for condonation of delay is restored to the file of the learned Chief Judge, City Sessions Court, Calcutta and the learned Judge is directed to proceed with the matter in accordance with law.

Criminal section is directed to deliver urgent Photostat certified copy of this judgment to the parties, if applied for, as early as possible.