Orissa High Court
Amulya Kumar Swain vs State Of Odisha on 2 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.372 of 2022
Amulya Kumar Swain .... Petitioner
Mr. N.K.Sahu
Advocate
-versus-
State of Odisha .... Opposite Party
Mr.P. Tripathy,
Addl. Standing Counsel
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
02.12.2022.
Order No.
03. 1. This matter is taken up through hybrid mode.
2. It is submitted by Mr. N.K. Sahu, learned counsel for the
Petitioner that as directed the Petitioner has deposited 50% of
the compensation amount in the court below.
3. The Petitioner was convicted by the Court of learned
S.D.J.M., Bhadrak in I.C.C. No.1/2009 for the offence under
Section 138 of the N.I. Act and was sentenced to undergo
simple imprisonment for a period of six months and to pay a
fine of Rs.40,000/-.
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4. The Petitioner preferred an appeal in the Court of District
and Sessions Judge, Bhadrak being Crl. Appeal No.42/2013.
The said appeal was dismissed for non-prosecution by order
dated 22nd March, 2021 passed by learned Sessions Judge,
Bhadrak. The Petitioner thereafter filed an application for
restoration of the appeal along with a petition for condonation
of delay. Learned Sessions Judge by order dated 8th July, 2022,
which is impugned herein, dismissed the petition holding that
the said Court had no power to restore the appeal. In doing so,
learned Sessions Judge took note of several case laws including
the case of Sankatha Singh v. State of Uttar Pradesh; reported
in AIR (1962) SC 1208.
5. The moot question that arises for consideration in the
present revision is, whether the Sessions Judge has power to
restore an appeal dismissed for non-prosecution.
6. It would be apposite to state at the outset that a Criminal
Appeal cannot be dismissed for the default of the appellant or
their counsel. The Court either has to adjourn hearing of the
appeal to enable them to appear, or should consider the appeal
on merit and pass the final order. In the case of Bani Singh v.
State of U.P; reported in (1996) 4 SCC 720, the Supreme Court
held as follows:-
"We have carefully considered the view expressed
in the said two decisions of this Court and, we
may state that the view taken in Shyam Deo case
appears to be sound except for a minor
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clarification which we consider necessary to
mention. The plain language of Section 385 makes
it clear that if the appellate court does not
consider the appeal fit for summary dismissal, it
'must' call for the record and Section 386
mandates that after the record is received, the
appellate court may dispose of the appeal after
hearing the accused or his counsel. Therefore,
the plain language of Sections 385-386 does not
contemplate dismissal of the appeal for non-
prosecution simpliciter. On the contrary, the Code
envisages disposal of the appeal on the merits
after perusal and scrutiny of the record. The law
clearly expects the appellate court to dispose of
the appeal on merits, not merely by perusing the
reasoning of the trial court in the judgment, but
by cross-checking the reasoning with the
evidence on record with a view to satisfying itself
that the reasoning and findings recorded by the
trial court are consistent with the material on
record. The law, therefore, does not envisage the
dismissal of the appeal for default or non-
prosecution but only contemplates disposal on
merits after perusal of the record. Therefore, with
respect, we find it difficult to agree with the
suggestion in Ram Naresh Yadav case that if the
appellant or his pleader is not present, the proper
course would be to dismiss an appeal for non-
prosecution."
7. Learned Sessions Judge himself has referred to some
decisions of this Court where it has been held that a criminal
appeal cannot be dismissed for default once it has been
admitted. Learned Court below has referred to the decision of
the Supreme Court in the case of Parsuram Patel v. State of
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Orissa; reported in (1994) 4 SCC 664. Thus, the legal position
that emerges is, a criminal appeal cannot be dismissed for non-
prosecution.
8. Now the question arises whether a criminal appeal dismissed
for non-prosecution notwithstanding the aforementioned legal
proposition, can be restored by the same court. Learned
Sessions Judge has referred to the decision of Sankatha Singh
(supra) to hold that the appeal dismissed for default can be
restored only by order of a superior Court but not by the
Sessions Court. I have perused the judgment rendered in
Sankatha Singh (supra) wherein it has been stated in
paragraph-7 as under:
"7. A criminal appeal cannot be dismissed for
the default of the appellants or their counsel.
The court has either to adjourn the hearing of
the appeal to enable them to appear, or should
consider the appeal on merits and pass the final
order. Shri Tej Pal Singh was aware of this as
his order itself indicates. He did not dismiss the
appeal for default. He himself perused the
judgment of the Magistrate and the record and
did consider the merits, as he says in his order
"I find no ground for any interference." The
mere fact that he had not expressed his reasons
for coming to that opinion does not mean that he
had not considered the material on record
before coming to the conclusion that there was
no case for interference. His omission to write a
detailed judgment in the circumstance may be
not in compliance with the provisions of Section
367 of the Code and may be liable to be set aside
by a superior court, but will not give him any
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power to set it aside himself, and rehear the
appeal. Section 369, read with Section 424 of
the Code, makes it clear that the appellate court
is not to alter or review the judgment once
signed, except for the purpose of correcting a
clerical error."
9. The facts of the said case are clearly different from the facts
obtaining in the present case inasmuch as the case considered
by the Apex Court was not a case dismissed for non-
prosecution/default, but on merits though by a non-speaking
order. In such case, the Apex Court noted the fact that despite
absence of appellant or his counsel the Sessions Judge had
perused the judgment of the Magistrate and the record and had
disposed of the case on merits by stating that he found no
ground for any interference. It was further held by the Apex
Court that merely because no reasons were expressed in coming
to the opinion does not mean that the Court had not considered
the materials on record. In other words, the Apex Court held
that the same was an order on merits. In that context, the Apex
Court held that only a superior Court should set aside the order.
10. In the present case, the learned Sessions Judge has not
considered the merits of the case by perusing the records or the
impugned judgment, but has dismissed the appeal for non-
prosecution because of absence of the appellant and his
counsel. Obviously, the decision in Sankatha Singh (supra)
would be applicable in the facts of the present case.
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11. Evidently, the learned Sessions Judge was not alive to the
above legal proposition and therefore, this Court is of the
considered view that the learned Sessions Judge committed
material illegality in holding that he had no power to restore the
appeal. It is the settled position of law that every Court has
inherent power to correct his own mistakes. Reference may
had to the decision of the Apex Court rendered in the case of
Grindlays Bank Ltd. v. Central Government Industrial
Tribunal and others; reported in AIR 1981 SC 606.
12. In such view of the matter, this Court holds that the
impugned order cannot be sustained in the eye of law.
Accordingly, the Crl. Revision is allowed. The impugned order
is set aside. The matter is remitted to the learned Court below
for passing necessary orders to restore the appeal and hear the
same on merits.
13. No coercive action shall be taken against the Petitioner till
then.
14. Urgent certified copy of this order be granted on proper
application.
(Sashikanta Mishra)
AKB Judge
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