DHANPATI Vs. STATE OF M.P.

JUDGEMENT

(1.) APPLICANT No. 1 Dhanpati was convicted and sentenced under sections 147 and 325 of I.P.F. to 6 -6 -montbs' R. 1. and fine of Rs. 50/ -50/ - and in default of'payment of fine, to S.1. for 1 -1, while the remaining applicants 2 to 5 were convicted and sentenced under sections 147 and 323 of I.P.C. to pay a fine of Rs. 500/ - 500/ - and in default of payment of fine, to undergo R.I. for 1 -1 -month each, by Judicial Magistrate First Class, Sarangarb (District Raigarh), in Criminal Case No. 712/85, decided on 13.10.1987, and, being aggrieved by the judgment dated 13.10.1987, passed by the Judicial Magistrate First Class, Sarangarh, they preferred an appeal before the Sessions Judge, Raigarh, vide Criminal Appeal No. 169/87, and the said appeal was dismissed in default vide order dated 9.5.1988, which is the impugned order in this revision -petition.

(2.) ON behalf of the applicants, it has mainly been submitted that the impugned order dated 9.5.1988, passed by the Sessions Judge, Raigarh, is prima facie illegal and without jurisdiction, because the said appeal could not have been dismissed in default and the Sessions Judge was bound to decide the appeal on merits -even if the appellants or their counsel was not present on the date of bearing. It was further submitted that the powers of the appellate Court are defined in section 386 of the Code of Criminal Procedure, and it is no where laid down that the Sessions Judge has powers to dismiss the appeal in default.

(3.) FOR the aforesaid reasons, this Criminal Revision is allowed, and the impugned order dated 9.5.1988, passed by the Sessions Judge, Raigarh, in Criminal Appeal No. 169/87, is set aside, and the Sessions Judge, Raigarh, is directed to hear both the parties and, then, decide the Criminal Appeal No. 169/87 on merits according to law. The applicants are directed to appear before the Sessions Judge, Raigarh, on 20.1.1993.