LAWS(ORI)-2009-12-10

TIKAN BINDHANI Vs. STATE OF ORISSA

Decided On December 07, 2009
Tikan Bindhani Appellant
V/S
STATE OF ORISSA Respondents

JUDGEMENT

(1.) Learned Addl. Standing Counsel receives notice on behalf of the State. Heard. Keeping in view the limited nature of the question involved, this Criminal Revision is disposed of at the stage of admission. A short question arises in this Revision. Should the Sessions Judge dismiss a criminal appeal for default or for non -prosecution?

(2.) PETITIONER was convicted for the offence under Section 47(a) of Bihar and Orissa Excise Act, 1915 and was sentenced to undergo simple imprisonment for two years and to pay fine of Rs. 5,000/ -, in default, to undergo further simple imprisonment for six months in G.R. Case No. 118 of 2001 of the court of J.M.F.C, Baripada. Against such judgment of conviction, the appellant preferred an appeal before the learned Sessions Judge, Mayurbhanj at baripada. The Appeal was transferred to the Court of Addl. Sessions Judge, Baripada and numbered as Criminal Appeal No. 7/65 of 2008 -07. The case was called for hearing on 16.09.2009, but the appellant was absent and no step was taken on behalf of the appellant. Learned Addl. Sessions Judge recorded that no steps have been taken for the preceding four dates. He held that the appellant is not diligent in prosecution of his appeal. Hence, he dismissed the appeal for non -prosecution by the appellant.

(3.) SIMILAR view has been taken in the reported decision of Banchhanidhi Singh alias Nani Singh v. State of Orissa (1989) II OCR 448, wherein this Court has held that when the Advocate for the appellant do not appear to argue the criminal appeal, learned Sessions Judge should have appointed a counsel amicus curiae to argue on behalf of the appellant. The learned Sessions Judge having not done so, in that case, this Court set side the judgment dismissing the appeal. - - - -