MAHENDRAKUMAR SHANTILAL SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) NO one is present on behalf of the appellant in any of these appeals. Can these appeals be dismissed for default with section 386 of the Code of Criminal Procedure staring at the face.

(2.) A civil appeal, if not dismissed summarily under the provisions of Rule 11 of Order 41 of the Code of Civil Procedure, is to be listed for hearing with notice to the respondent and if the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The cleavage of opinion as to whether such dismissal can be for default of appearance only, or on the merits also, has now been sealed by the Explanation added to Rule 17 (1) of Order 41 by the Amendment of 1976, providing categorically that "nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits".

(3.) THE law in the Criminal jurisdiction is however different, as would appear from the provisions of section 423 of the preceding Code of Criminal Procedure of 1898, now replaced by section 386 of the new Code of 1973, which is in pari materia with its predecessor in the old Code of 1898. Section 386 of the present Code of Criminal Procedure provides that if a criminal appeal is not dismissed summarily under section 384, the same is to be heard under section 385, with notice to the parties and after sending for the record of the case, unless the same is already there and then the appellant Court, "after perusing such record, and hearing the appellant or his pleader, if he appears. . . may, if it considers that there is no sufficient ground for interfering, dismiss the appeal" or may allow the same by passing appropriate orders.