DEVI CHARAN Vs. STATE OF U P

JUDGEMENT

(1.) DEBI Charan, Kishav and Ram Singh have been convicted by the Thrid Additional Chief Judicial Magistrate, Bijnor, in case No. 1640 of 1990 under Sec tions 457 and 380, I. P. C. and sentenced to certain terms of imprisonment and fine by his judgment and order dated 26-6-91. Against the said conviction and sentence the appellants filed Criminal Appeal before the Sessions Judge, Bijnor, which has been numbered as Criminal Appeal No. 54 of 1991. During the pendency of the appeal the applicants were granted bail. On 30-7-91 the aforesaid Criminal Appeal No. 54 of 1991 was taken up by the Sessions Judge, Bijnor, for hearing and the learned Sessions Judge, inter alia, held that: 'None is present for the appellants, I have gone through the evidence and the order of the learned Magistrate. The order of the learned Magistrate appears to be based on sufficient evidence which has been even correctly appreciated therefore, I see no force in this appeal and it fails. The appeal is dismissed. The order of conviction dated 26-6-91 is hereby confirmed......"

(2.) AGAINST the aforesaid order of the Sessions Judge dated 30-7-91 the applicants have come up is this Court through this revision.

(3.) A perusal of the order of the Sessions Judge, quoted above, indicates that he has by passed the mandatory provisions contained in Sections 385 and 386, Cr. P. C. and much more than those contained in Section 353, Cr. P. C. If it was a fact that the Sessions Judge had really gone through the merits of the case he should have discussed the evidence. The either upheld or set aside the findings of fact recorded by the Trial Court. Even if it is a judgment of affirmance it must indicate to this Court that the appeallate Court (Sessions Judge), had followed the provisions of law before he passed an order of dismissal of appeal. The help of the D.G.C. or any State Counsel was also not taken in the instant case. Under the circumstances it cannot be said that the hearing of the appeal had been properly done. Hearing of the Counsel is the rule and deciding the appeal in the absence of the Counsel or the appellant is an exception. At times reliance is placed by Courts below upon the Supreme Court decision in the case of Ram Naresh Yadav v. State of Bihar, A.I.R. 1987 SC 1500 for dismissing the Criminal appeal in default. The lower Courts will do well to remember that the said ruling was a matter arising from the High Court's judgment and some of the High Courts have provision of hearing of Criminal appeals governed by their rules of Court. In any case, if the aforesaid Supreme Court decision is followed in letter and spirit then the other part by which the defaulting Counsel's complaint is directed to be made to the Bar Council should also be adhered to.