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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 25 of 2017
Petitioner : Dipak son of gundappa Tundalwar, aged
about 54 years, Occ: Business, resident of
Main Line, Digras, District Yavatmal
versus
Respondents : 1) The Akola Janta Commercial Coop.
Bank Limited, Akola, Branch Digras, through its Manager, Mahendra Omkar Santre, aged 59 years, Occ: service, resident of Digras, District Yavatmal
2) The State of Maharashtra, through P.S.O., Digras, District Yavatmal Shri Anand Deshpande, Advocate for petitioner Shri G. R. Kothari, Advocate for respondent no. 1 Shri M. N. Joshi, Addl. Public Prosecutor for respondent no. 2 Coram : S. B. Shukre, J Dated : 12th April 2017 ::: Uploaded on - 15/04/2017 ::: Downloaded on - 16/04/2017 00:53:06 ::: 2 Oral Judgment
1. Rule. Heard forthwith by consent of parties.
2. This writ petition challenges the legality and correctness of the order dated 28.6.2016 whereby the appeal of the petitioner has been dismissed by the learned Additional Sessions Judge, Darwha in default for failure to deposit paper book charges.
3. However, the law in this regard is well settled. The Hon'ble Apex Court as far back as in the year 1992 in the case of Kishansingh v. State of Uttar Pradesh reported in 1993 (3) SCALE 312 has held that the position of a criminal is not the same as in a civil appeal governed by the Civil Procedure Code. It is held that a comparison of the provisions of Section 384 Criminal Procedure Code with those of Order 41, Rules 11 and 17 of the Civil Procedure Code clearly brings out the difference. The Hon'ble Apex Court has held that while Order 41 Rule 17 CPC in express terms provides that an appeal may be dismissed on the ground of absence of the appellant when the appeal is called out and Rule 19 provides for its restoration on the appellant offering sufficient cause for his non- appearance, no similar or corresponding provision is to be found in the Code of Criminal Procedure. It also held that the Criminal Procedure ::: Uploaded on - 15/04/2017 ::: Downloaded on - 16/04/2017 00:53:06 ::: 3 requires in express terms the matter to be considered on merit and, therefore, a criminal cannot be nonsuited for non-prosecution. Similar view has been taken by the Hon'ble Apex Court in Bani Singh & ors v. State of UP reported in AIR 1996 SC 2439. While interpreting the provisions of Section 386 Cr. P. C. it has been held that it is incumbent upon the appellate court to decide the appeal on merit and the only requirement of Section 386 is that the appellant or the respondent be heard if they choose to appear before the Court and record of the case is perused and considered by the court.
4. Learned counsel for the respondent no.1 has invited my attention to the judgment of the Hon'ble Apex Court in the case of Uday Singh & anr v. State of W.B. and connected appeals reported in (2011) 15 SCC 520 wherein criminal appeals were dismissed for failure of the appellant or his counsel to appear before the Court. I must mention here that such dismissal in default of the appeals came in exercise of the powers of the Hon'ble Apex Court under Article 136 of the Constitution of India whereby special leave to appeal was granted. Dismissal of the appeals was not in exercise of the powers under Chapter XXIX of the Code of Criminal Procedure especially in terms of Section 386 read with Section 374 thereof. Therefore, I must say that this judgment would have no application to the facts of the instant case.
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5. If the paper book charges were not deposited in the instant case by the appellant, the appellate court was obliged to peruse the record of the case and consider arguments of both the sides provided they were submitted and decide the appeal on merits of the case. At the most, the appellate court could have cancelled the bail granted to the appellant, but not dismissed the appeal in default if paper book charges were not paid. This has not been done by the learned Additional Sessions Judge in the instant case. Hence, the impugned order being illegal, cannot be sustained in the eye of law.
6. In the result, writ petition is allowed. Criminal Appeal No. 19 of 2013 is restored to file of Additional Sessions Judge, Darwha for being considered on merits in terms of powers of the Court under Section 386 of the Code of Criminal Procedure.
Rule is made absolute in above terms.
S. B. SHUKRE, J joshi ::: Uploaded on - 15/04/2017 ::: Downloaded on - 16/04/2017 00:53:06 :::