RAMESH NANU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision petition is filed by the original accused against the order passed by the learned City Sessions Judge Ahmedabad City in Criminal Appeal No. 52 of 1975 dismissing the appeal filed by the petitioner against the order of conviction and sentence recorded against him by the learned Metropolitan Magistrate 11 Court Ahmedabad dated 10 April 1975 in Criminal Case No. 1444 of 1974. He has been convicted for an offence punishable under sec. 379 of the Indian Penal Code and sentenced to suffer six months rigorous imprisonment and to pay a fine of Rs. 200.00and in default of payment of fine to undergo one months further rigorous imprisonment. The appeal was admitted by the Sessions Court on 29-4-1975 and the impugned order has been passed on 20-8-1975. The order reads: Neither the appellant nor his Advocate present. Mr. G. S. Bhatt the learned Additional Public Prosecutor for opponent No. 2 State present. Rest absent. Appeal dismissed. Bail to be cancelled. Accused to surrender.

(2.) Mr. R. G. Chhara appearing for the petitioner has contended that this order of dismissal of the appeal is not in compliance with the provisions of sec. 386 of the Code of Criminal Procedure 1973 (which will be hereinafter referred to as the new Code) and consequently this order cannot be sustained in law. [After quoting secs. 384 385 and 386 of the Code of Criminal Procedure 1973 and the corresponding provision secs. 421 422 and 423 of the old Code His Lordship further observed:]

(3.) It is an admitted position that the appeal was not summarily dismissed as contemplated under sec 421 of old Code corresponding to which is the provision in the new Code with which we are concerned viz. sec. 384. The appeal having not been dismissed summarily as contemplated by sec. 384 of the new Code the Court has to follow the procedure referred to in sec. 385 of the new Code. Sub-sec. (2) of it which is material for our purposes reads; (2) The appellate Court shall then send for the record of the case if such record is not already available in that Court and hear the parties. It is thus evident that after the appeal is once admitted and not summarily dismissed that procedure has got to be followed. Sec. 386 of the new Code deals with the powers of the appellate Court. The wording of that section clearly indicates that a duty is cast upon the appellate Court to peruse the record and hear appellant or his pleader if he appears and the public Prosecutor if he appears and in case of an appeal under sec. 377 or sec. 378 the accused if he appears thereafter the appellate Court if it considers that there is no sufficient ground for interfering dismiss the appeal or may use the powers referred to in clauses (a) (b) (c) etc. It is thus evident that even in case the appellant or his Advocate does not appear after the appeal is admitted the appellate Court is bound to peruse the record and decide the appeal on merits. This appeal cannot be dismissed for default as in the case of civil appeal.