CHAITAN PRADHAN Vs. STATE

JUDGEMENT

(1.) I have heard the learned counsel for both the sides in this revision directed against the order passed by Mr. A.C. Panda, First Additional Sessions Judge, Puri, while holding his circuit Court at Nayagarh, dismissing the Criminal Appeal preferred by the present petitioners 'without costs'. The orders passed are extracted below :

(2.) THE Criminal Appeal had been admitted and hid been posted for hearing. Section 386 of the Code of Criminal Procedure (for short, 'the Code' ) provides that after perusing the record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may in an appeal from an order of conviction, reverse the finding and sentence and acquit the accused or alter the finding, maintaining the sentence or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. The Code does not contain any provision for dismissal of a Criminal Appeal for default owing to the absence of the appellant or his counsel. The learned Additional Sessions Judge was dealing with a Criminal Appeal and not a civil one. Strangely enough, he has even passed an order with regard to costs as is done in a civil appeal. If any authority is necessary for the proposition that a Criminal Appeal cannot be dismissed for default owing to the absence of the appellant or his counsel, it would be found in the case reported in AIR 1971 S. C. 1606 : Shyam Deo Pandey and Ors. v. State of Bihar.

(3.) FOR the foregoing reasons, I would allow the revision, set aside the impugned order and direct that the Criminal Appeal preferred by the petitioners be heard and disposed of by the learned Sessions Judge, Puri.