Siriya and Others vs Bheera and Another

S.P. Bangarh, J.

CRM No. 78505 of 2012

In view of the averments made in the application, the same is allowed. CRM stands disposed of.

CRR No. 4207 of 2012

Respondent No. 1, herein, filed criminal complaint No. RBT-200 of 2012 before the learned Judicial Magistrate Ist Class, Kaithal against the petitioners. Therein, the latter were convicted for commission of offences punishable under Sections 148, 323, 506, 342 IPC read with Section 149 IPC and sentenced to undergo imprisonment for one year each; to pay a fine of Rs. 100/- each and in default, thereof, to undergo simple imprisonment for a period of one month each, vide judgment dated 27.11.2012 and order of sentence dated 05.12.2012. At the time of pronouncement of the order of sentence (supra), the substantive sentences of imprisonment were suspended to facilitate the petitioners to file appeal, there against, which was filed and that was dismissed vide order dated 13.12.2012 due to absence of the revisionists, herein and their counsel. Aggrieved, there against, the petitioners filed application before the learned Appellate Court for restoration of their appeal, but that, too, was dismissed vide order dated 24.12.2012.

Now, through the instant revision petition, petitioners have sought restoration of their appeal for decision, thereof, on merits. Reliance can be placed upon "Kishan Singh v. State of Uttar Pradesh (1992) RD-SC 220 (02.11.1992)" passed by the Hon''ble Supreme Court of India, wherein, it was held that u/s 384 of the Cr.P.C., it is the duty of the appellate court to examine the petition of appeal and the judgment under challenge and to consider the merits of the case before dismissing the appeal summarily. The said duty is not dependent on the appellant or his counsel appearing before the Court to press the appeal. As soon as, a petition of appeal is presented u/s 382 or 383, it becomes the duty of the appellate Court to consider the same on merits, even in the absence of the appellant and his counsel before dismissing the same summarily. It was further held that, therefore, the High Court should have either examined the appellant''s petition of appeal and the judgment under challenge, itself or appointed a counsel to assist the Court, but could not have proceeded to dismiss the same on the ground that the advocate for the appellant was not present. It was also held that position of a criminal appeal is not be same, as that of civil appeal.

Reliance can also be placed upon Madan Lal Kapoor Vs. Rajiv Thapar and Others, also passed by the Hon''ble Supreme Court of India, wherein, it was held that, a criminal matter cannot be dismissed for default and it must be decided on merits.

The learned Appellate Court, thus, in view of the aforementioned judgment passed by the Hon''ble Supreme Court of India should have considered the appeal on merits, even in the absence of the appellants (petitioners herein) and, their, counsel before dismissing the same vide order dated 13.12.2012. So, it was required of the learned Appellate Court to examine the appeal of the petitioners itself or should have appointed a counsel to assist it, but should not have proceeded to dismiss the same on the ground that no one was present on their behalf.

Resultantly, the petition is, hereby, allowed; impugned order dated 13.12.2012 and resultant order dated 24.12.2012 dismissing the application of the petitioners for restoration of appeal, are set aside and the criminal appeal of the petitioners bearing No. 183 of 2012 is ordered to be restored at original number of institution for decision, thereof, on merit.

Petitioners shall cause appearance before the learned appellate court on 07.01.2013.

CRM No. 78506 of 2012

In view of the order passed in CRR No. 4207 of 2012, the present application has become redundant and is dismissed.