Man Singh vs State of U.P.

K.N. Sinha, J.—The present revision has been filed against the order dated 18.10.2002 passed by IXth Additional Sessions Judge, Mathura in Criminal Appeal No. 10 of 1998 dismissing the appeal in default.

Brief facts giving rise to this revision is that the revisionist, Man Singh, was tried by IVth Additional Chief Judicial Magistrate, Mathura, for the offence under Sections 297, 338, 427 and 304A, I.P.C. and convicted for the said offence. The trial court also awarded sentences for the aforesaid offences. The revisionist filed criminal appeal against the said order which was pending in the Court of IXth Additional Sessions Judge, Mathura, being Criminal Appeal No. 10 of 1998. On 18.10.2002, the appeal was dismissed in default.

Aggrieved by the said order, the present revision has been filed. The learned Counsel for the revisionist has submitted that the criminal appeal cannot be dismissed in default but it should have been decided on merit. Sections 381 - 386, Cr. P.C. and onwards contain various provisions in respect of an appeal to the Court of Sessions. Section 384, Cr. P.C. deals with summary dismissal of an appeal. However, if the appeal is not dismissed summarily and survives, the next procedure to be followed is laid down in Sections 385 and 386, Cr. P.C. Section 386, Cr. P.C. makes it imperative on the appellate court to peruse the record and hear the parties on merits. The Apex Court and the High Court, have been repeatedly impressing upon Sessions Court not to dismiss the appeal in default. The criminal appellate courts and the High Court are exclusively governed by Section 386, having no inherent power, cannot dismiss the appeal in default but must dispose of the appeal on merits on a perusal of the records even when the Appellant or his counsel does not appear to press or prosecute the appeal.

In Shyam Deo Pandey and Others Vs. The State of Bihar, the Apex Court has made it mandatory for the appellate court to peruse the records before dismissing the appeal.

Not only this, the Appellant must have filed the bonds for appearance at the time of admission of the appeal. The order sheet dated 5.9.2002 also shows that non-bailable warrant was issued but the Court instead of issuing notice to sureties and procuring the attendance of the Appellant for the decision of the appeal, abruptly dismissed the appeal in default. In Nathu Ram and Others Vs. State of U.P., this Court has observed that "there is no provision in the Cr. P.C. permitting disposal of criminal appeal in default. In case the appellate court decides to proceed with the hearing of the appeal and is satisfied that either the Appellants themselves or their counsel have not appeared, even though they have notice of the date, it has the right to examine the records and decide the appeal on merits. It does not mean that a criminal appeal can be decided in default, just as a civil appeal". It is very strange that in spite of large number of authorities and clear provisions in the criminal procedure itself, the Court has adopted a short cut method to dismiss the criminal appeal in the most casual manner.

The officer concerned (who was posted at Mathura on 18.10.2002 as IXth Additional Sessions Judge) shall take a note of this fact that while exercising the power of Sessions Judge, he should be aware of the criminal procedure and the law on the criminal side.

The revision is allowed. The order dated 18.10.2002 is set aside. The revisionist is directed to appear before the Sessions Judge, Mathura, along with certified copy of this order. The office is directed to transmit a copy of this order to Sessions Judge, Mathura, forthwith. The Sessions Judge, Mathura, is directed to decide the appeal himself after summoning the record or transfer it to some other Additional Sessions Judge except IXth Additional Sessions Judge, Mathura.

A certified copy of this order may be given to the learned Counsel for the revisionist on payment of usual charges. The learned Sessions Judge, Mathura, shall communicate this judgment to IXth Additional Sessions Judge, Mathura, for his future guidance.