V R JAYASANKAR Vs. K G DHARMAN

JUDGEMENT

(1.) Appellate Criminal Courts do find themselves occasionally in the unenviable situation, where the appellants/accused do not take the necessary steps to ensure service of notice on the respondents/complainants. In such cases--in appeals preferred against convictions in prosecutions initiated by a private complainant, what course should the Appellate Courts follow Is it within their powers to dismiss such appeals on the short ground that necessary steps have not been taken by the concerned appellants In such a situation do the Appellate Criminal Courts have the power to dismiss an appeal for default Can provisions in Section 204(4), Cr.P.C. be applied mutatis mutandis to spell out a power for the Appellate Court to dismiss an appeal for default These are the interesting questions that are raised in this revision petition directed against an appellate judgment dismissing an appeal for non-prosecution by the appellant.

(2.) The prosecution was under Section 138 of the N.I. Act. The prosecution ended in conviction and sentence. An appeal was preferred by the accused/revision petitioner herein. The learned Sessions Judge did not dismiss the appeal summarily under Section 385, Cr.P.C. It was admitted and notice was ordered to the respondent/complainant. When the matter came up, it was noticed that the appellant was not present. There was no representation for him nor was any steps taken to ensure issue of notice to the respondent/complainant. In these circumstances the Appellate Court proceeded to pass the impugned order, which I extract below:

(3.) The learned Counsel for the appellant submits that the lower Appellate Court has no jurisdiction to dismiss an appeal for default as it has done. Even assuming that the appellant had not taken steps, the records must be perused and an order on merits passed by the Appellate Court, it is contended. The Counsel relies on the stipulations in Section 386 of Cr.P.C. as explained in Bani Singh v. State of U.P., 1996 2 KerLT 424. Whatever be the confusion available earlier in the light of the decisions in Shyam Deo Pandey v. State of Bihar, 1971 CrLJ 1177 , and Ram Naresh Yadav v. State of Bihar, 1987 AIR(SC) 1500, the position has been settled beyond controversy by the three Judges Bench in Bani Singh (supra) and therefore a criminal Appellate Court does not have the jurisdictional competence to dismiss an appeal already admitted by it for default except on merits. This is the short contention raised by the learned Counsel for the petitioner.