MANGA RAM Vs. STATE

JUDGEMENT

(1.) THIS is a petition moved in terms of sec 561 Cr.P C for quashing an order passed by learned Sessions Judge, Udhampur on 03 -08 -1983 and also one passed by Chief Judicial Magistrate Udhampur on 11 -03 -1982 - Chief Judicial Magistrates order has convicted the petitioner accused. As against that order of conviction, an appeal was preferred before learned Sessions Judge Udhampur on 03 -08 -1983 when the appeal came up before the court for motion hearing, accused appellant remained absent and the appellate court on that date, passed the impunged order, whereby the appeal was dismissed for default of appearance.

(2.) THE question that arises for our consideration in this case is, as to whether or not a criminal appeal can be dismissed for non -prosecution.

(3.) PROVISION for disposal of appeals is made in sec. 421 and 423, Code of Criminal Procedure (herein -after called the Code). Sec. 421 deals with summary dismissal of appeal and where notice to the other side have not been issued. Sec. 423(b) of the code relates to the disposal of appeals after issuing notice to the other side. Sub -sec (1) of Sec. 423 calls upon the Appellate Court to send for the record of the subordinate file. It casts a duty upon the court to hear the appellant or his Pleader and also the Public Prosecutor The Court has to grant a hearing to both the parties. If either of the parties makes a default in appearing before the court, the court has to pass appropriate orders. It can up -set the finding but before doing so parties are to be heard, if they so choose. The word "if he appears" have been used both for the appellant and the Public Prosecutor. This signifies that a choice is left with the parties to advance arguments. If no arguments are advanced then right of making arguments impliedly will be deemed to have been waived. It is by no way means that the obligation of perusing record, which was sent for, is discharged. The court has, even without appearance of counsel for the parties, to pass an order after going through the record. This means that an order on merits of the case will have to be passed, in case of default of appellant of his counsel to appear before the court.