NISHA SHARMA Vs. VINOD KUMAR SHARMA

JUDGEMENT

(1.) Since a very short point is involved in this petition, I, hereby, proceed to dispose of the same after hearing the learned counsel for the parties.

(2.) A criminal revision had been brought before the Additional Sessions Judge challenging the order of the Magistrate dated December 13, 1985, by which the petitioners had been summoned for facing the trial in respect of offence punishable under Sections 506 & 120-B read with Section 34 Indian Penal Code . The criminal revision was dismissed in default for non-appearance of the petitioners or their counsel on the date fixed for hearing. An application seeking restoration of the criminal revision was also dismissed by the Additional Sessions Judge vide order dated September 8, 1988. The short question which arises for consideration is whether the criminal revision could have been dismissed by the Additional Sessions Judge in defualt ? There is a direct ruling of this Court on this point reported as M.T.R. Power v. R. K. Gupta, 29(1986) Delhi Law Times 98. (1) The Supreme Court also considered the matter regarding dismissal of a criminal appeal in default in Shyam Deo Pandey & others v. The State of Bihar, AIR 1971 SC 1606. (2) It has been held that criminal appeal could not have been dismissed in default and in case there is non-appearance by the appellant or his counsel, the appellate court should examine the record and decide the appeal on merits. So, following the aforesaid judgment of the Supreme Court, I hold that the Additional Sessions Judge had no power to dismiss the criminal revision in default.

(3.) I allow the petition, set aside the impugned order and restore the criminal revision to its original number before the Additional Sessions Judge and direct the Additional Sessions Judge to decide the criminal revision on merits. The parties are directed to appear before the Additional Sessions Judge on April 3, 1989.