The Patna High Court, while allowing a revision petition filed against the order dated 30.05.2018 passed in an appeal by the learned Additional Sessions Judge, convicting the appellants for the offenses punishable under Section 452, Section 420, Section 379, and Section 354 of the I.P.C., held that if the appellant is not represented by his learned Advocate in the court below, the learned court of appeal is at liberty to dispose of the appeal on merit on the basis of the submission made on behalf of the respondents.
Brief Facts:
The instant revision is filed against the order dated 30.05.2018 passed in Cr. Appeal by the learned Additional Sessions Judge, against the order of conviction and sentence passed by the learned Judicial Magistrate 1st Class convicting the appellants and sentencing them to suffer imprisonment for three years with a fine under Section 452, imprisonment for three years with a fine for the offense punishable under Section 420, imprisonment for three years for the offense under Section 379 of the I.P.C. with fine and imprisonment for one year with a fine for the offense punishable under Section 354 of the I.P.C. It was directed by the Trial Court that the substantive sentence of imprisonment shall run concurrently. However, imprisonment for non-payment of fines shall run separately. The appellants preferred an appeal before the learned Sessions Judge against the aforesaid judgment which was dismissed for default. Hence, the present revision petition.
Observations of the Court:
The Court noted that it is in conformity with the learned Judge in the Appellate Court that the conduct of the appellants was not at all satisfactory in conducting the appeal.
The Court, however, observed that provisions relating to filing and hearing of a criminal appeal is dealt with under the provisions contained in Chapter XXIX of the Code of Criminal Procedure. In any of the provisions contained in Chapter XXIX, the Appellate Court has not been given the power to dismiss an appeal for default. There is a provision in Section 394 of the Cr.P.C. regarding abatement of appeal on the death of the appellant but an Appellate Court cannot dismiss an appeal for default. He will have to dispose of an appeal on merit only. Accordingly, the impugned order dated 30.05.2010 suffers from patent illegality and material irregularity.
If the appellant is not represented by his learned Advocate in the court below, the learned court of appeal is at liberty to dispose of the appeal on merit on the basis of the submission made on behalf of the respondents.
The decision of the Court:
The Patna High Court, allowing the petition, held that an appeal can only be disposed of on merit and cannot be dismissed for default.
Case Title: Md. Gholtu Mian & Ors. v The State of Bihar & Anr.
Coram: Hon’ble Justice Bibek Chaudhuri
Case no.: CRIMINAL REVISION No.1029 of 2018
Advocate for the Petitioner: Mr. Amit Kumar Anand
Advocate for the Respondents: Mr. Chandrasen Prasad Singh
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