M. R. MALLICK, J. ( 1 ) THE appellant has filed this petition for recalling the order dated 28. 7. 1986 whereby the appeal preferred by him being Criminal Appeal No. 187 of 1985 against the order of acquittal passed by the Judicial Magistrate, 5th court Alipore in T. R. No. 334 of 1981 is alleged to have been dismissed for default without giving any opportunity of hearing to the appellents learned Counsel to argue the appeal and that the appellant had substantial points for argument and he has been denied the right of hearing. ( 2 ) ON behalf of the respondent no. 2: the accused respondent it is contended that the appeal was appearing in the list of this Court for several days, that nobody appeared for the appellant and then this Court heard the Respondent no. 1 the State of West Bengal and Respondent no. 2 the accused respondent and has disposed of the appeal on merits on perusing the record of the case and on being satisfied that the order of acquittal was proper dismissed the appeal on ments. It is, therefore, contended that the appeal not having been dismissed for default but on merits the judgment bas attained its finality and cannot be recalled as it would have the effect of reviewing the judgment of the court of appeal which this court cannot do in view of the clear provision contained in section 362 Cr. P. C. ( 3 ) ON behalf of the appellant it is contended that When the appellant was not heard before the appeal was disposed of and only on hearing the respondents, it is virtually a dismissal of appeal on default. The learned Advocate has referred to me the two decisions of Calcutta High Court reported in Sudhinara Nath Dutt v. State1 and Hiswanath v. Haripada2 and bas urged these two decisions clearly lay down that the Criminal Appeal once admitted cannot be dismissed for default and has to be beard on merits and if that is done then the order of dismissal of the appeal for default can be set aside and the appeal can be reheard again on merits on giving opportunity of hearing to the appellant and the respondent. ( 4 ) THIS is now the settled law that once the appeal is admitted for hearing the Court of Appeal has to dispose of the appeal on giving proper notices to the appellant and the respondents. Records show that notices of the appeal were duly served on all parties concerned. The appellant in the application for recalling the order dated 28. 7. 1986 has not taken the plea that no notice was served upon the appellant as provided in section 386 Cr. P. C. It is also true that even if the appellant does not appear to prosecute the appeal the Appellate Court cannot dismiss the appeal for default This is the view expressed in the two Calcutta decisions cited before me but also in the Supreme Court decision reported in S. D. Pandays case3 corresponding to 1971 Criminal Law Journal 1177. Even if the appellant is absent ort the date of hearing the appeal has to be disposed of on merits. This is the decision of High Courts of Allahabad and Punjab reported in 1981 Law Journal378 (Allahabad)4 and 1981 Criminal Law Journal 1969 (Punjab ). 5 ( 5 ) ON perusal of the judgement delivered by this court on 28. 7. 19861 find that the appeal was disposed of on merits on hearing the respondents and on perusing the record. So this is not a disposal of appeal on default of appearance. It is stated by the appellant in his petition that the learned Advocate for the appellant missed the list. The appeal was appearing in the list for hearing on several days and even the Respondents were heard for two days. Therefore, the plea that the learned Advocate missed the list cannot be a ground for setting aside the judgement delivered by this Court on merits and for re-hearing it again. ( 6 ) THERE is no provision in the Code of Criminal Procedure to set aside a judgment delivered on merits and to rehear it only because one of the parties did not appear on the date of hearing to argue the appeal. On the contrary there is a clear provision in section 362, Cr. P. C. against reviewing the judgment or order of a criminal court including the court of appeal once the judgment is delivered on merits. On the contrary there is a clear provision in section 362, Cr. P. C. against reviewing the judgment or order of a criminal court including the court of appeal once the judgment is delivered on merits. The Supreme Court, however, in 1982 sec (Cri) 1436 interfered with a decision of the Appellate Court even on merits where the appellants learned Advocate refused to argue the appeal. The Supreme Court in that decision observed that Appellate Court should have appointed an Advocate as amicus curie and then should have disposed of the appeal on merits. But this is not a case in which the appellants leaned Advocate appeared before the court and refused to argue the appeal. Only plea for non-appearance given is that the learned Advocate missed the list I have already indicated that such a plea was not at all acceptable as the appeal was appearing in the list for several days and it is not probable that the, learned Advocate would miss the list on all the dates. ( 7 ) IN the result the application for recalling the order dated 28. 7. 1986 cannot be entertained because the recalling the judgment in this appeal rendered in merits would have the effect of reviewing the judgment which is prohibited by section 362, Cr. P. C. The application is dismissed. .