BAREN DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellant has filed this petition for recalling the order dated 28.7.1986 whereby the appeal preferred by him being Criminal Appeal No. 187 of 1985 against the order of acquittal passed by the Judicial Magistrate, 5th court Alipore in T.R. No. 334 of 1981 is alleged to have been dismissed for default without giving any opportunity of hearing to the appellents learned Counsel to argue the appeal and that the appellant had substantial points for argument and he has been denied the right of hearing.

(2.) On behalf of the respondent no. 2: the accused respondent it is contended that the appeal was appearing in the list of this Court for several days, that nobody appeared for the appellant and then this Court heard the Respondent no. 1 the State of West Bengal and Respondent no. 2 the accused respondent and has disposed of the appeal on merits on perusing the record of the case and on being satisfied that the order of acquittal was proper dismissed the appeal on ments. It is, therefore, contended that the appeal not having been dismissed for default but on merits the judgment bas attained its finality and cannot be recalled as it would have the effect of reviewing the judgment of the court of appeal which this court cannot do in view of the clear provision contained in section 362 Cr. P.C.

(3.) On behalf of the appellant it is contended that When the appellant was not heard before the appeal was disposed of and only on hearing the respondents, it is virtually a dismissal of appeal on default. The learned Advocate has referred to me the two decisions of Calcutta High Court reported in Sudhinara Nath Dutt v. State1 and Hiswanath v. Haripada2 and bas urged these two decisions clearly lay down that the Criminal Appeal once admitted cannot be dismissed for default and has to be beard on merits and if that is done then the order of dismissal of the appeal for default can be set aside and the appeal can be reheard again on merits on giving opportunity of hearing to the appellant and the respondent.