DURGA DAN Vs. STATE

JUDGEMENT

(1.) THIS reference has been made by the Additional Sessions Judge, Tonk.

(2.) THE facts giving rise to it are that one Durga dan s/o Shri Dan Charan filed an appeal u/s 515 Cr. P. C in the Court of the District Magistrate, Tonk against an order of the Sub-Divisional Magistrate, Tonk, dated 27. 8. 1957 under sec. 514 Cr. P. C. On 4. 3. 1958, that appeal was dismissed by the appellate Court in default of the appellant's appearance. THE learned Additional Sessions Judge has reported that the appellate Court ought to have decided the appeal and that its order dismissing it for the appellant's default is not warranted in law. THE opinion expressed by the learned Additional Sessions Judge is supported by Nihal vs. Emperor (2) (AIR 1929 Lahore 849) and Ramchander vs. Emperor (AIR 1923 Allahabad 175 ). It maybe observed that Sec. 421 of the Code of Criminal Procedure lays down that an appellate Court may dismiss an appeal summarily in certain circumstances, but once an appeal is admitted and a notice is issued u/s 422 C. P. C. then the appellate Court should dispose of the appeal on merits. THEre is no provision in the Code of Criminal Procedure for dismissing the appeal on account of the non-appearance of the appellant or his counsel. In the present case it appears that the appeal was admitted by the learned Magistrate and 4. 3. 58 was fixed for hearing of the appeal It appears that on that date, the appellant and his counsel Shri Manzoor Alam were not present and therefore the Court dismissed the appeal only on account of the appellant's default in making his appearance. This order was not correct and the court ought to have decided the appeal on merits.