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Judgment
Anand Byrareddy, J.—This petition coming on for admission is considered for final disposal, having regard to the facts and circumstances. The petitioners were the appellants before the lower Appellate Court. The petitioners were convicted for the offences punishable under Sections 323, 324, 504, 506 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'', for brevity). The petitioners are challenging the summary dismissal of the appeal by the Court below for non-prosecution. It is noticed from the order sheet that the petitioners and their counsel have not been diligent in prosecuting the appeal and it is on account of total negligence of the matter, by the petitioners and their counsel, that the Court below by its order dated 11.06.2013, has held as follows:
Appellant and his advocate absent. It appears the appellants have no interest to prosecute the matter. Hence, the appeal is dismissed for non prosecution.
It is that which is challenged in this petition.
The law is well settled, in that, in interpreting the provisions of the Code of Criminal Procedure, 1973, insofar as hearing and dismissal of appeals are concerned, the Supreme Court has repeatedly laid down, as was stated in Bani Singh and ohters Vs. State of U.P., , which was a Three Judge Bench decision, after digesting the case law, to the following effect.
14......The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it ''must'' call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record.......
Secondly, the law expects the appellate court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the appellate court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the appellate court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from do so..........
In the above view of the matter, the order or the Court below is set aside. The matter is remanded for a fresh consideration in accordance with law.