RADHESHYAM SONI Vs. STATE

JUDGEMENT

(1.) 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".

(2.) The law in the Criminal Jurisdiction is however different, as would appear from the provisions of S. 423 of the preceding Code of Criminal Procedure of 1898, now replaced by S. 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 u/S.384, the same is to be heard u/S.385, with notice to the parties and after sending for the record of the case, unless the same is already there and then the appellate 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.

(3.) The words "after perusing the record" etc., in S.386 have all the weight of a categorical mandate and while construing those words in the corresponding S.423 in the preceding Code, the Supreme Court was never in doubt that, to quote from the three Judge Bench decision of the Supreme Court in Sankatha Singh AIR 1962 SC 1208 at 1209 : (1962 (2) Cri LJ 288) "a criminal appeal cannot be dismissed for the default of appearance of the appellants or their Counsel "and the Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order". To the same effect is the decision of a later two-Judge Bench of the Supreme Court in Shyam Deo Pandey AIR 1971 SC 1606 at 1610 : (1971 Cri LJ 1177) where it has been similarly ruled that of reading of S.423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel", and "the Court has either to adjourn the appeal in order to enable them to appear or it should consider the appeal on merits and pass final order". The requirement regarding the perusal of record before disposing of the appeal, even where the appellant does not appear, cannot be treated as an empty formality. Perusal of the record of the particular case and giving indication of such perusal is the order is a must before dismissing the appeal, even though the appellant or his counsel does not appear to press the appeal.