Nathu Ram and Others vs State of U.P.

Palok Basu, J.—I have heard Sri Avinash Hajela, learned counsel for the applicants in support of this petition u/s 482, Cr. P.C. Sri Surendra Singh, learned Asstt. Government Advocate appeared for the State. Both the counsel are agreed that this petition may be disposed of finally since the points taken and argued are apparent from the certified copies appended along with the affidavit filed in support of this application. The applicants Nathu Ram, Subedar, Raj Kurnar and Panch Prayag were convicted under Sections 323/34 and 324/34, I.P.C. and awarded three months'' rigorous imprisonment on the two different counts each. A sum of Rs. 100/- and Rs. 200/-each under the respective sections was to be paid as fine in default they were to undergo two months'' S.I. The four applicants preferred a criminal appeal which was admitted by the Sessions Judge, Farrukhabad and numbered as Criminal Appeal No. 21 of 1987.

In the affidavit filed in support of the present application it has been stated that for some reasons beyond the control of the applicants, they could not appear in the court of the Judges where the said appeal was to be taken up. It has been stated that the lawyers had gone on strike on some previous days when the appeal was posted for hearing. No information about the adjourned date was conveyed to the applicants by their counsel. Ultimately the appeal was posted for disposal before the IV Additional Sessions Judge on 20th of April, 1988. The Presiding Officer proceeded to pass the following Order :--

"Case called out repeatedly several times. Appellants not present. None for the appellants. It is 3 p.m. now.

Appellants were present on 24-12-87 and had notice of date 12-1-88 but they did not come on 12-1-88 and 15-3-88 and also today.

ORDER

The appeal is dismissed in default of appellants and their counsel.

Sd/-Illegible

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 record and decide the appeal on merits. It does not mean that a criminal appeal can be decided in default just as a civil appeal. The order dated 20th April, 1988, is wholly illegal and cause of justice will suffer if it is not set aside forthwith.

The application is allowed and the Appeal No. 21 of 1987 shall be restored to its original number and decided afresh in accordance with law after notice to the parties. Any order or direction in pursuance of the order of the Judge dated 20th of April, 1988, are hereby quashed.:

Office is directed to produce the file of this case along with the copy of this order before the Hon''ble the Administrative Judge concerned for such action as he may feel necessary.

Sri Avinash Hajela undertakes that the appellants will appear before the Sessions Judge, Farrukhabad, between 26th and 29th of Oct. 1988, along with the certified copy of this order. The office is directed to forthwith transmit a copy of this order to the Sessions Judge. The Sessions Judge is directed to decide the appeal himself or transfer it to some Judge other than the one who had passed the order on 20th of April, 1988. A copy of this order shall be delivered to the learned counsel for the applicants within three days from today.