Judgment : BHASKARA RAO, J. (1) THIS is a revision filed by the accused against the dismissal of their appeal for their absence by the Addf. Sessions Court, Sangareddy. (2) AFTER examination of PWs. 1 to 5 and marking of Exs. P-1 to P4, the trial court convicted the petitioners and sentenced them to suffer. for six months for the offence under sec. 452 IPC, three months under sec. 323 IPC and three months under sec. 342 IPC, directing all the sentences to run concurrently. Against these convictions and sentences the petitioners filed an appeal before the Additional Sessions court. The appeal was admitted. After notice to the Public Prosecutor the appeal eame up for hearing on 21st June, 89. On that day the petitioners were absent and therefore the appellate Court dismissed the appeal by the following order: a1 to A4 absent. Appeal dismissed inform Judicial Magistrate of First Class, siddipet, to cause their arrest to undergo sentence". Challenging this order, the present revision is filed. (3) IT is contended by the learned counsel for the petitioners that the appeal once admitted cannot be dismissed for default,. e. for the absence of the appellantpetitioners or their counsel. He submitted that the Court ought to have issued notice to the petitioner appellants if their counsel was absent or not ready with the case aud after hearing them only the appeal could have been disposed of on merits. He pointed out that dismissal of the appeal after its admission for the absence of the appellants or their counsel is not provided by the Criminal Procedure Code and therefore the order under revision is liable to be set aside. (4) THE point that arises for consideration in this revision is, whether the appellate Court has power to dismiss the appeal for default once it was admitted. (5) BEFORE dealing with the above point, it is relevant to refer to some of the provisions in the Criminal Procedure Code dealing with the filing and disposal of the appeal. Chapter. XXIX of the Criminal procedure Code deals with appeals. Subsection (3) of section 374 Cr. PC, provides for an appeal to the Court of Sections against convictions imposed by the Magistrates of 1st or 2nd Class. Section 381 Cr. PC, speaks of procedure as to hearing of appeal by the Court of Session. Section 383 Cr. Chapter. XXIX of the Criminal procedure Code deals with appeals. Subsection (3) of section 374 Cr. PC, provides for an appeal to the Court of Sections against convictions imposed by the Magistrates of 1st or 2nd Class. Section 381 Cr. PC, speaks of procedure as to hearing of appeal by the Court of Session. Section 383 Cr. PC, deals with the procedure for filing an appeal, when the appellant is in jail. Section 384 Cr. PC, empowers the court to summarily dismiss the appeal, if the appellate Court considers that there are no sufficient grounds for interference. However such dismissal shall be only after hearing the appellants counsel. Subsection (3) of section 384 Cr PC, mandates the appellate Court to record reasons for such summary dismissal. Section 385 Cr pc, provides the procedure for hearing appeals not dismissed summarily. Section 386 Cr PC, refers to the powers of the appellate Court in disposing of appeals which were not dismissed summarily Even for summary dismissal, it is to be borne in mind, the appellate Court is under an obligation to hear the appellants counsel and assign reasons for such dismissal. (6) THE instant case is one where the appeal was admitted and it is only when it came up for hearing the same was dismissed on the ground that the appellant petitioners were absent Thus, this is not a case of summary dismissal under sec 384 cr. PC The provisions, therefore, that got attracted are sections 385 and 386 Cr PC. (7) SECTION 385 Cr PC to the extent relevant reads as under; "335. Procedure for hearing appeals not dismissed summarily: - (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-(1) to the appellant or his pleader; (ii) to such officer as the State government may appoint in this behalf; (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that court, and hear the parties: provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3 ). . . . (3 ). . . . " (8) AS seen from the above provision, in a case where the appeal is not dismissed summarily, it is the duty of the court to issue notice to the appellant or bis pleader and also to the officer concerned (Public Prosecutor) of the State Government. The Court shall also (the word used is shall) send for the record and hear the parties. The only exception from sending for the record is an appeal wherein the challenge is against the legality of the sentence. In an appeal of the present nature wherein the convictions and sentences, both, are challenged on merits, it is the mandatory duty of the appellate Court to issue notice to the appellant or his advocate and to the public Prosecutor as to the place and time of hearing of the appeal, to send for the appeal, to send for the record and t hear the parties These three thitgs, viz, issue of notice, sending for records and hearing the parties, are the essential mandatory requirements. One more requirement contemplated by section 386 Cr P C, is perusing of the record sent for under sec. 385 cr PC before disposing of the appeal. Section 386 Cr PC, Starts with the wording "after perusing such record and hearing the appellant or his pleader". The four primary requirements in terms of sections 385 and 386 Cr PC, to be followed thus are (i) issue of notice, (ii) sending for records, (iii) perusing the records sent for and (iv) hearing the parties. It is interesting to notice at this juncture that Article 21 of the Constitution of India guarantees protection of life and personal liberty. It says no person shall be deprived of his life or personal liberty except according to procedure established by law" In criminal appeals the liberty of the accused would be at stake and if he were to be deprived of the liberty, it is but mandatory to follow the procedure contemplated by the Code of criminal Procedure. From the manner in which sections 385 and 386 Cr PC are worded it is clear that the very object behind it is to provide safeguards to a citizen against deprivation of his liberty without following the procedure and to conform to the provisions of Article 21 of the Constitution. From the manner in which sections 385 and 386 Cr PC are worded it is clear that the very object behind it is to provide safeguards to a citizen against deprivation of his liberty without following the procedure and to conform to the provisions of Article 21 of the Constitution. In the instant case, since the appellate Court having admitted the appeal dismissed it without hearing the accused of their counsel, the dismissal would be in contravention of sections 385 and 386 Cr pc, culminating in violation of the fundamental freedom guaranteed by Article 21 of the Constitution. (9) NOW. adverting to the case-law on the subject the Supreme Court bad occasion to consider a point similar to the one on hand In Ram Naresh V. State of bihar (1) AIR 19*7 SC page 1500 and held: "in criminal matters the convicts must be heard before their matters are decided on merits. 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. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The Court might as well appoint a counsel at State cost to argue on behalf of the appellants". (10) AGAIN in Khaili V. State of u. P. (2) 1982 S C (Crl) page 143 the counsel for the accused before the Allahabad High Court refused to argue the case as be did not receive instructions and therefore the High Court dismissed the appeal. The Supreme Court on appeal held that the High Court ought to have appointed an advocate amicus curiae and then disposed of the appeal on merits. It accordingly set aside the judgment of the High court and sent the matter back for fresh disposal. (11) IN Swath Mahto V. Dharmdeo (3) AIR 1972 SC 1300 the advocate for the accused was not properly posted with notice of hearing of the appeal in that only the appeal number was published in the cause list and not the name of the advocate and this resulted in conviction of the accused Without hearing his counsel. In such circumstances, the Supreme Court held that the accused could not be said to have been given reasonable opportunity of hearing and accordingly ordered re-hearing of the appeal. In such circumstances, the Supreme Court held that the accused could not be said to have been given reasonable opportunity of hearing and accordingly ordered re-hearing of the appeal. (12) THE Patna High Court in Sita-ram Yadav V. State of Bihar (4) 1989 Crl l J page 1602 dealing with a matter where the appeal admitted for hearing was disposed of on merits in the absence of the appellant or his counsel held: ". . . once the appeal is admitted for hearing Court should not proceed straightaway to consider and dispose of the appeal on merits in the absence of appellant or his counsel but should provide further opportunity to the appellant by way of appointing a State Counsel to argue the appeal on his behalf and only after having heard the argument on behalf of the appellant, the court should proceed to dispose the appeal on merits". (13) FROM the above decisions, it can safely be deduced that (i) When Once an appeal against conviction is admitted the same cannot be dismissed without hearing the appellant or his counsel on the ground that the appellant or his counsel or both are absent and (ii) when the appellant or his counsel or both happened to be absent or the counsel is not ready to argue the matter for any reason, it is the duty of the appellate Court to appoint a counsel at State cost, hear him on merits and then dispose of the appeal. (14) IN the present case, though the appellants were absent, their counsel and the public prosecutor were present on the day in question. However, as to why the appeal was not heard is not noted in the order under revision. If it is a case where the counsel reported no instructions or was not willing to argue, the appellate Court could have as well appointed a counsel at state cost, heard him and then disposed of the appeal on merits (15) IN the result, the judgment of tae Court below is set aside and the matter is remitted back to the appellate Court for disposal afresh in the light of the above principles. The revision is accordingly allowed.