Judgment :- 1. The ticklish question raised by Sri. E.V. Nayanar, counsel for the petitioners is this: Can a criminal appeal (which is otherwise ripe for hearing) be dismissed for default or for non-prosecution? In Ram Naresh Yadav v. State of Bihar (AIR 1987 S.C.1500). Thakkar and Natarajan, JJ. have observed that "the court can dismiss the appeal for non-prosecution and enforce discipline". According to Sri. E.V.Nayanar, the aforesaid observation of the Supreme Court has no binding force since the law on that topic was authoritatively pronounced by the Supreme Court in Shyam Deo v. State of Bihar (AIR 1971 S.C.1606) which has not been over ruled yet and which holds the sway till now. 2. Petitioners, eight in number, were convicted for the offence under S.55(a) of the Abkari Act and each of them was sentenced to undergo imprisonment for six months and to pay a fine of rupees one thousand by a Judicial Magistrate of Second Class. They jointly filed an appeal before the Sessions Court which was made over to the Chief Judicial Magistrate's Court. The Chief Judicial Magistrate dismissed the appeal for non-prosecution, since the counsel for the appellants reported no instructions. Learned Chief Judicial Magistrate relied on the observation in Ram Naresh Yadav's case to support the course adopted by him. Though the aggrieved petitioners filed a revision before the Sessions Court, the only point considered by the Sessions Judge was whether the Chief Judicial Magistrate was right in dismissing the appeal for non-prosecution. Without adverting to any other point regarding the correctness or legality of the findings which ended in conviction of the petitioners, learned Sessions Judge dismissed the revision holding that the appeal was rightly dismissed in view of the observation in Ram Naresh Yadav's case. Hence the petitioners have come to this Court invoking S.482 of the Code of Criminal Procedure (for short 'the Code'). 3. Provisions relating to appeal are set in Chapter XXIX of the Code. S.374 of the Code enables a person convicted on a trial to file the appeal and as per sub-section (3) such person can appeal to the Court of Session, if he is convicted by a Magistrate of the first class or second class. S.381(1) provides that an appeal filed against conviction on a trial held by a Magistrate of second class may be heard by the Assistant Sessions Judge or the Chief Judicial Magistrate. S.381(1) provides that an appeal filed against conviction on a trial held by a Magistrate of second class may be heard by the Assistant Sessions Judge or the Chief Judicial Magistrate. Every appeal is required to be made in the form of a petition in writing which shall be accompanied by a copy of the impugned judgment or order. S.384 gives power to the appellate court to dismiss the appeal summarily when the appellate court considers that there is no sufficient ground for interference. But no such appeal shall be dismissed summarily without "examining the petition of appeal and the copy of the impugned judgment and without affording the appellant or his pleader a reasonable opportunity of being heard in support of the appeal". Another condition to be complied with by the appellate court which dismisses the appeal summarily is that "it shall record its reasons for doing so". If the appeal is not dismissed summarily, the appellate court has to follow the steps mentioned in S.385. The appellate court has to send for the records of the case and hear the parties. S.386 enjoins on the appellate court a duty to peruse the records and hear the appellant or his pleader "if he appears" and the Public Prosecutor "if he appears". The court can dismiss the appeal after perusing the records only "if it considers that there is no sufficient ground for interfering". S.387 says that the Rules as to judgment of a criminal court of original jurisdiction shall apply to the judgment in appeal delivered by the Court of Session or Chief Judicial Magistrate (this rule is evidently not applicable to judgments pronounced by the High Court). S.354 of the Code contains the important rules of judgment. Every judgment "shall contain the point or points for determination, the decision thereon and the reasons for the decision". The appellate court while disposing of an appeal, which was not dismissed summarily, as mentioned above, has to follow the aforesaid steps. There is no provision in the Code which permits the appellate court to dismiss the appeal without considering it on merits. The appellate court while disposing of an appeal, which was not dismissed summarily, as mentioned above, has to follow the aforesaid steps. There is no provision in the Code which permits the appellate court to dismiss the appeal without considering it on merits. Even when the court is to dismiss the appeal in a summary manner without issuing notice to other parties and without calling for records, the Code enjoins on the court to consider the contents of the appeal petition, the reasons and the facts set forth in the impugned judgment and to give its own reasons and grounds for such dismissal. The position may be different if the appellant does not press his appeal. But when the appellant and the counsel are absent, the court has no power under the Code to dismiss the appeal without considering it on merits. 4. In Shayam Deo v. State of Bihar (AIR 1971 S.C.1606) a bench of two judges of the Supreme Court adverted to the provisions of the Code of Criminal Procedure 1898 (corresponding to the provisions in Chapter XXIX of the present Code), the scheme of the sections the legal requirements to be followed by the appellate court and the earlier decisions of the Supreme Court having some bearing on the question and then laid down the law in the following lines: "A reading of S.423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both are not present, the appellate court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the facts whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits". 5. In flam Naresh Yadav's case, a bench of two judges of the Supreme Court by a short order set aside the judgment of the High Court which dismissed an appeal due to the absence of appellants and their counsel. The operative portion of the Supreme Court decision reads thus: "Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the court to argue on their behalf. But a one sentence observation passed by their Lordships in the decision that "the court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view" is implicitly followed by both the lower courts as though it is the law declared by the Supreme Court. It is not to be understood that in Ram Naresh Yadav's case the Supreme Court has taken a different view from the settled legal position declared by the Supreme Court in Shyam Deo v. State of Bihar (AIR 1971 S.C 1606). In this context it is useful to refer to two other decisions of the Supreme Court. It is not to be understood that in Ram Naresh Yadav's case the Supreme Court has taken a different view from the settled legal position declared by the Supreme Court in Shyam Deo v. State of Bihar (AIR 1971 S.C 1606). In this context it is useful to refer to two other decisions of the Supreme Court. In Khaili v. State of U.P. (1981 (Supp) S.C.C 75), Bhagwati and Venkataramiah, JJ. (as they were then) considered a case in which the Allahabad High Court decided an appeal without hearing the arguments of the appellants' counsel. Since the advocate of the appellants reported no instructions to the court and refused to argue, the appeal was disposed of. Their Lordships observed in the decision thus: "We think that in a case such as this, what the learned judge should have done was to appoint an advocate amicus curiae and then proceed to dispose of the appeal on merits". In Kabira v. State of U.P. (1981 (Supp) S.C.C. 76), Bhagwati, J. (as he then was) and D.A. Desai, J. considered a slightly different case. The High Court dismissed an appeal due to absence of the appellant's counsel with a one line judgment "No one appears on behalf of the accused - appellant. The appeal is dismissed in default". The Supreme Court did not approve of what the High Court did and observed thus: "The appeal could not be dismissed by the learned judge for default of appearance. If the appellant was not present, the learned judge should have appointed some advocate as amicus curiae and then proceeded to dispose of the appeal on merits". Thus the Supreme Court reiterated that a criminal appeal cannot be dismissed for default. The only change in law between Shyam Dec's and Ram Naresh Yadav's case is regarding the insistence that if the counsel of the appellant does not turn up the court shall engage another counsel either on State brief or as amicus curiae and hear the appeal before it is disposed of. The observation in Ram Naresh Yadav's case that an appeal can be disposed of for non-prosecution is therefore not the law declared by the Supreme Court and hence it has no binding effect. 6. Even otherwise the said observation in Ram Naresh Yadav's case is nothing more than a passing observation or casual expression which remains only as obiter. The observation in Ram Naresh Yadav's case that an appeal can be disposed of for non-prosecution is therefore not the law declared by the Supreme Court and hence it has no binding effect. 6. Even otherwise the said observation in Ram Naresh Yadav's case is nothing more than a passing observation or casual expression which remains only as obiter. A bench of three judges of the Supreme Court has stated the following in Municipal Corporation of Delhi v. Gurnam Kaur ((1989)1 S.CC 101): "Quotability as 'law' applies to the principle of a case, its ratio detidendi. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative". In Madhav Rao Scindia Bhadur and others v. Union of India (AIR 1971 S.C 530), the Supreme Court held that "it was not a profitable task to extract a sentence here and there divorced from the context from its judgment as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment and build upon it". In M/s. Raval and Co. v. K.G. Ramachandran and others (AIR 1974 S.C. 818) the Supreme Court cautioned that general observations should not be applied in interpreting the provisions of an Act unless the court had applied its mind and analysed the provisions of that particular Act. 7. A doubt was raised during arguments, since the decision in Shyam Deo v. State of Bihar (AIR 1971 S.C. 4606) and the decision in Ram Naresh Yadav v. State of Bihar (AIR 1987 S.C.1500) were rendered by benches of the Supreme Court having equal strength (two judges) whether the earlier one should be held to have binding force in preference to the later or vice versa. If the later decision has referred to the earlier one, there can at least be a presumption that the later decision was rendered after adverting to the ratio of the earlier and hence the later can have greater weight. But when the later decision is without considering the earlier one, it poses difficulty for other courts (especially when the strength of the benches in both is equal) as to which deserves preference to the other. But when the later decision is without considering the earlier one, it poses difficulty for other courts (especially when the strength of the benches in both is equal) as to which deserves preference to the other. Recently a Full Bench of the Patna High Court had occasion to consider such a difficult situation arising out of two conflicting decisions of the Supreme Court consisting of co-equal benches. S.5. Sandhawalia, C.J. who spoke for the Full Bench in Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191) evolved the following solution: "When judgments of the superior Courts are of co-equal Benches, and, therefore, a matching authority, then their weight inevitably must be considered by the rational and the logic thereof and not by the mere fortuitous circumstance of the time and date on which they were rendered. Equally, the fact that the subsequent judgment failed to take notice of the earlier one or any presumption that a deviation therefrom could not be intended, cannot possibly be conclusive. Vital issues, pertaining to the vital questions of the certainty and uniformity of the law, cannot be scuttled by such legal sophistry. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority exist, then both of them cannot be binding on the Courts below. A choice, however difficult it may be, has to be made in such a situation and the date cannot be the guide. However, on principle, it appears to me, that the High Court must in this context follow the judgment, which would appear to lay down the law more elaborately and accurately. The mere incidence of time, whether the judgments of co-equal Benches of the superior Court are earlier or later, and whether the later one missed consideration of the earlier, are matters which appears to me as hardly relevant, and, in any case, not conclusive". As the decision in Shyam Deo's case has adverted to the provisions of the Code and discussed the issues elaborately, the ratio therein must certainly have binding weight in preference to the passing observation contained in flam Naresh Yadav's case. In Sairam Yadav v. State of Bihar (1989 Crl.L.J.1602), a learned single judge of the Patna High Court has chosen to follow the dictum in Shyam Deo's. case even after adverting to the decision in Ram Naresh Yadav's case. In Sairam Yadav v. State of Bihar (1989 Crl.L.J.1602), a learned single judge of the Patna High Court has chosen to follow the dictum in Shyam Deo's. case even after adverting to the decision in Ram Naresh Yadav's case. Learned Judge observed that the law had been more elaborately and accurately considered by the Supreme Court in Shyam Deo's case and that "it appears very likely their Lordships, while deciding Ram Naresh Yadav's case, were not apprised of the decision of the Supreme Court in Shyam Deo Pandey's case and the long series of decisions of the various High Courts in this regard and if they had been apprised probably the observation, the court can dismiss the appeal for non-prosecution and enforce discipline' might not have been made". I am in respectful agreement with the said statement made by Ram Nandan Prasad, J. of the Patna High Court. 8. Thus considered from different angles, the courts below have not correctly done as the appeal was dismissed without considering it on merits. I, therefore, allow this petition and set aside the judgment of the Chief Judicial Magistrate in appeal as well as the order of the Sessions Judge in revision. I direct the Chief Judicial Magistrate to dispose of the appeal on merits, after hearing the appellants' counsel (either the counsel engaged by the appellants or in his absence a counsel appointed by the court). I wish to express my gratitude to Sri. Pirappancode V.S. Sudheer, who appeared as amicus curiae on my request.