DASHRATH BHOKTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision is directed against the order, dated 11.7.1990 passed in Criminal Appeal No. 60/88 by Smt. Rajendra Kumari, 4th Additional Judicial Commissioner, Ranchi through which the appeal preferred by the petitioners Was dismissed for default.

(2.) The fact in short, for the purpose of this application is that for some allegation of assault and theft the informant instituted CR. Case No. 136/85 which was decided by Sri Prabhat Kumar, S.D.J.M, Khunti vide his Judgment, dated 9th June, 1988 and found all the petitioners guilty under Sections 147, 323 and 379, IPC and sentenced each of them to undergo rigorous imprisonment for three months under Section 147; three months under Section 323 and four months under Section 379, IPC and it was further ordered that all the sentences will run concurrently. Being aggrieved and dissatisfied with the order of conviction, all the petitioners preferred Criminal Appeal No. 60/88 which was pending before 4th Additional judicial Commissioner, Ranchi. It appears that on 11.7.1990 the appellants Advocate had not appeared before the appellate court and so on that very date, the appellate court recorded an order of dismissal of the appeal. The petitioners, Advocate filed a petition for restoration before the same court on the ground that on 11.7.1990, the arguing Advocate of the petitioners was ill and could not attend the court. But that plea was rejected and prayer for restoration of the appeal was also rejected.

(3.) Admittedly the petitioners preferred Criminal Appeal No. 60/88 against the order of conviction recorded by the Judicial Magistrate and it was dismissed for default on 11.7.1990 by the 4th Additional Judicial Commissioner. The only point urged on behalf of the petitioner is that the order of dismissal of appeal on default without hearing the counsel of the appellant is apparently bad in law in view of the provision of Section 386, Cr. P.C. and as such this order is liable to be set aside. In support of this contention the learned lawyer for the appellant has also relied upon the decisions of the Supreme Court reported in 1995 Vol. 1 East Cr. C 468 Parasu Ram Patel and Anr. v. State of Orissa and that of AIR 1987 SC 1500. Ram Naresh Yadav and Ors. v. State of Bihar. On plain reading of Section 386, Cr. P.C., it is clear that when the appeal is preferred against the order of conviction in that circumstances, the appeal must be decided on perusal of the record and also after hearing the counsel of the appellant. From the order dated 11.7.1990, it is clear that the appellate court had neither heard the counsel for the appellant nor perused the lower court record and simply dismissed the appeal for default. So the order is apparently bad in law. No doubt the learned appellate court has relied upon the authority of the Supreme Court reported in AIR 1987 SC 1500: Ram Naresh Yadav's case (supra), but it appears that the court below had not properly appreciated the principle laid dowa in Ram Naresh Yadav's case because the Apex Court has clearly said that the appeal against conviction could not be decided without hearing the counsel for the appellant and even if the counsel for the appellant is absent for some reason or the other then the appellate court may appoint a counsel at the State cost for the appellant and after hearing the counsel so appointed shall dispose of the appeal on merit. The similar view was taken by the Apex Court in Parasuram Patel (supra).