Calcutta High Court (Appellete Side)
Nandan Singh vs Indian Railways on 17 September, 2021
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
CRR 1443 of 2014
Nandan Singh
Vs.
Indian Railways
For the Petitioner : Mr. Apurba Kumar Datta
: Mr. Kuntal Banerjee
For the O.P. : Mr. Abhra Mukherjee
Heard on: 17th September, 2021
Judgment on : 17th September, 2021
The Court:
This is an application challenging an order dated
04.03.2014 passed by the learned Additional Sessions Judge,
3rd Court, Asansol, Burdwan in Criminal Appeal No. 10 of
2013.
Learned counsel appearing on behalf of the petitioner
submits as follows. The petitioner was convicted and sentenced
under Sections 3 (A) and 4 of the Railway Property (Unlawful
Possession) Act by an order dated 12.11.2013 passed by the
learned Additional Chief Judicial Magistrate, Asansol,
Burdwan in Complaint Case No. 684 of 2008. Challenging the
same, the petitioner preferred an appeal. However, due to
miscommunication with the learned advocate, no steps could
be taken on behalf of the appellant before the learned Appellate
Court on a couple of occasions. Learned Appellate Court
dismissed the said appeal as no steps had been taken on
behalf of the appellant. This is not permissible in law and
appeal cannot be dismissed summarily for default on the part
of the appellant in taking steps.
Learned counsel appearing on behalf of the opposite
party/ railway authority, in his usual fairness, submits that
this order dismissing an appeal, effectively for default, cannot
be sustained in the eye of law. He relies on a decision of the
Hon'ble Apex Court reported in Ram Naresh Yadav vs. State of
Bihar, AIR 1987 SC 1500.
I have heard the submissions of the learned counsels
appearing on behalf of the petitioner and the opposite party
and have perused the revision petition.
It is apparent from the record that on a couple of
occasions, the appellant could not take steps before the
learned Appellate Court. As a result, the appeal was,
effectively, dismissed for default.
In Ram Naresh Yadav (supra), the Hon'ble Supreme
Court, inter alia, held that deciding a criminal appeal ex-parte
on merits was bad in law. At least, a State Defence could have
been appointed.
Here, there is a case of dismissal of a criminal appeal for
default of non-appearance.
In Shyam Deo Pandey & Ors. vs. State of Bihar, (1971) 1
SCC 855, the Hon'ble Supreme Court, while dealing with the
Code of Criminal Procedure, 1898 (the old Code, for short),
inter alia, held that a reading of Section 423 made it clear that
a criminal appeal could not be dismissed for default of
appearance of the appellants or their counsel. The Court had
either to adjourn the hearing of the appeal in order to enable
them to appear or it should consider the appeal on merits and
pass final orders.
The proviso to sub-section (1) of Section 421 of the old
Code is quoted below -
'Provided that no appeal presented under Section 419
shall be dismissed unless the appellant or his pleader had a
reasonable opportunity of hearing of being heard in support of
the same.'
Section 384(1) of the Code of Criminal Procedure, 1973
(the new Code, for short) also contains a similar proviso, being
proviso (a).
Therefore, in view of the ratio laid down in Shyam Deo
Pandey (supra), the impugned order cannot be sustained.
The impugned order is not covered by any exceptional
circumstance under which an appeal can be summarily
dismissed in terms of Section 384 of the new Code (Code of
1973) because, among other things, the appellant ought to
have been given a reasonable opportunity of hearing.
Accordingly, the impugned order is set aside. The matter
is remanded back to the learned Appellate Court.
The learned Appellate Court is requested to conclude the
proceeding as expeditiously as possible.
Urgent photostat certified copies of this order may be
delivered to the learned Advocates for the parties, if applied for,
upon compliance of all formalities.
(Jay Sengupta,J.)
ssi
