Kirtan Swain vs Gadadhar Pallai

V. Gopalaswamy, J.—This revision is preferred against the following order of the learned First Additional Sessions Judge, Puri, Criminal Appeal No. 10/66 of 1985:

23.1.86. The Appellant has filed a petition for time. Heard. Petition for time is rejected and the Appellant is directed to be ready for hearing at once.

Sd. A.C. Panda

Later. The Appellant takes no steps. Advocate of the Respondent is present. The appeal is dismissed with costs.

Sd. A.C. Panda

On a perusal of the above order it is seen that the learned Additional Sessions Judge dismissed the appeal on the sola ground that the Appellant had taken no steps.

The Code of Criminal Procedure does not provide for dismissal of a Criminal Appeal for default. Though it was a Criminal Appeal, the learned Additional Sessions Judge dealt with it as if it was a Civil Appeal and even awarded costs. In Khaili and Ors. v. State of U.P. 1982 S.C.C. (Cri) 143, the Supreme Court held that in case an Advocate appearing for the Appellant in a Criminal Appeal does not appear before the Court and does not argue, the appellate Judge should appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits. In this context, the decisions of this Court in S. Mohan Rao v. Bhubaneswar Rath 58 (1984) C.L.T. 585, Chaitan Pradhan and Another Vs. State of Orissa, and Banchhanidhi Singh alias Nani Singh Vs. State of Orissa, , may also be referred to. u/s 386, Code of Criminal Procedure it is the duty of the appellate Court to peruse the record, hear both the sides and then dispose of the appeal. The impugned order of dismissal of the appeal is illegal and arbitrary. Hence I would allow the revision and set aside the impugned order and direct that Criminal Appeal No. 10/66 of 1985, preferred by the Petitioner be heard and disposed of by the learned Sessions Judge, Puri, in accordance with law as expeditiously as possible after giving notice to both the parties.