Jakku Ramakantham vs State of Andhra Pradesh

This revision is directed against the order dated 14-2-1996 of the I additional Sessions Judge, Karimnagar in Criminal Appeal No. 132 of 1994 on his file confirming the conviction and sentence imposed on the revision-petitioner-accused in C.C. No. 47 of 1990 on the file of the Judicial Magistrate of First Class, Jagtial. The appellant was found guilty of the offence u/s 406 of the Indian Penal Code and convicted for the said offence and sentenced to undergo simple imprisonment for a period of three months and also to pay a fine of Rs. 500/- and in default of payment of fine, to suffer simple imprisonment for a period of twenty days.

The impugned order dated 14-2-1996 dismissing the Criminal Appeal No. 132 of 1994 reads as follows :

"Appellant absent. No representation as neither counsel for parties present. Hence appeal dismissed for want of substantiative of the grounds of appeal. Issue NBW to accused for sending him to jail for serving the sentence."

The learned Counsel for the revision-petitioner contends that the impugned judgment of the learned I Addl. Sessions Judge dismissing the appeal for default is contrary to law, that the learned Addl. Sessions Judge has not considered the mandatory provisions u/s 386, Cr. P.C., that the dismissal of the appeal for default is not contemplated u/s 386, Cr.P.C. and that even in the absence of the appellant and his counsel, it is mandatory on the part of the appellate Judge to peruse the record and pass the judgment on merits. The learned Public Prosecutor also is not in a position to support the impugned order of dismissal of the appeal as it is not on merits.

The powers of the appellate Court while disposing the appeal, are to be found in Section 386, Cr.P.C. which reads as under :

"S. 386. Powers of the Appellate Court :- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal u/s 377 or Section 378, the accused, if he appears, the appellate Court may, if it considers, that there is no sufficient ground for interfering, dismiss the appeal, or may -

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or admitted for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction -

(i) revers the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extend, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence -

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court competent to try the offence, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper;

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement :

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."

A careful reading of this Section makes it abundantly clear that a Criminal Appeal cannot be dismissed for default for appearance of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal in order to enable them to appear or consider the appeal on merits and pass the final order. Before passing the order, it is essential for the appellate Court to peruse such record and hear the appellant or his pleader, if he appears, and hear the Public Prosecutor, if he appears, and only after complying with these requirements, the appellate Court has full power to pass any of the orders mentioned in the said Section. It is very clear that the appeal must be considered and disposed of on merits, irrespective of the fact whether the appellant or his counsel, or the Public Prosecutor is present or not. Further, a perusal of the record of the case and giving an indication of such perusal in the Order of Judgment is a must before dismissing the appeal. Admittedly, as seen from the impugned Order in this case, the learned Additional Sessions Judge has not adverted to the mandatory provisions of Section 386, Cr.P.C. as such the learned Additional Sessions Judge committed an error of law in dismissing the appeal for default. Therefore, the order is vitiated with illegality. Hence, the impugned Order of the I Additional Sessions Judge, Karimnagar, in Criminal Appeal No. 132 of 1994 dated 14-2-1996 is set aside. I direct the learned I Additional Sessions Judge, Karimnagar, to restore the Criminal Appeal No. 132 of 1994 on his file and dispose of the matter on merits according to law.

With the above directions, this revision petition is disposed of.

Order accordingly.