KIRTAN SWAIN Vs. GADADHAR PALLAI

JUDGEMENT

(1.) THIS revision is preferred against the following order of the learned First Additional Sessions Judge, Puri, Criminal Appeal No. 10/66 of 1985:

(2.) THE Code of Criminal Procedure does not provide for dismissal of a Criminal Appeal for default. Though it was a Criminal Appeal, the learned Additional Sessions Judge dealt with it as if it was a Civil Appeal and even awarded costs. In Khaili and Ors. v. State of U.P., 1982 S.C.C. (Cri) 143, the Supreme Court held that in case an Advocate appearing for the Appellant in a Criminal Appeal does not appear before the Court and does not argue, the appellate Judge should appoint an Advocate amicus curiae and then proceed to dispose of the appeal on merits. In this context, the decisions of this Court in S. Mohan Rao v. Bhubaneswar Rath : 58 (1984) C.L.T. 585, Chaitan Pradhan and Anr. v. State : 61 (1986) C.L.T. 365, Prafulla v. Nabakishore, (1989) 2 OCR 354 and Banchhanidhi Singh alias Mani Singh v. State of Orissa : 68 (1989) C.L.T. 462, may also be referred to. Under Section 386 , Code of Criminal Procedure it is the duty of the appellate Court to peruse the record, hear both the sides and then dispose of the appeal. The impugned order of dismissal of the appeal is illegal and arbitrary. Hence I would allow the revision and set aside the impugned order and direct that Criminal Appeal No. 10/66 of 1985, preferred by the Petitioner be heard and disposed of by the learned Sessions Judge, Puri, in accordance with law as expeditiously as possible after giving notice to both the parties.