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Madras High Court · body

1990 DIGILAW 36 (MAD)

H. N. Afroz Azzadi v. Sriram, Major

1990-01-09

D.P.HIREMATH

body1990
Judgment : Criminal Revision Petition No. 456/1989 is filed against the order of dismissal of the appeal filed by the appellant before the Sessions Court being aggrieved by an order passed by the trial Court, whereas the other Criminal Petition is filed against the order of the Sessions Court dismissing the revision petition filed by him before it, being aggrieved by the order of dismissal of the complaint filed by him in the trial Court. 2. Both the appeal as well as the revision petition had come up for hearing on two previous occasions and on 21-1-1989 when the appellant or the revision petitioner, as the case may be, was not present, both of them were dismissed for default. Subsequently, interlocutory applications were filed for restoration of the same. But it is undisputed that after these petitions were filed, those applications came to be withdrawn. 3. Thepetitioners counsel contends that the orders of the Sessions Court are not sustainable in view of the settled position that neither the appeal nor a Criminal Revision Petition can be dismissed for default, but should be disposed of only on merits, even if the petitioner or the appellant as the case may be, or his counsel is absent. It is contended for the respondent in both the petitions that in the first instance the petitioner intends only to harass the respondent and secondly that the Courts have jurisdiction to dismiss for default. 4. As far as the alleged harassment to respondent is concerned, the proceedings pending since long have been made basis of the argument and it was found unnecessary to send for records as at present stage it is only to be considered if the order could be passed dismissing both the matters for default by the learned Sessions Judge. 5. As far as the Criminal Appeal is concerned, the decision of the Supreme Court in the case of Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500 : (1987 Cri LJ 1856) is on the point. This has been followed in a recent decision of this Court in the case of M. D. Farooq v. State of Karnataka, ILR 1990 Karnataka, 161 : 1990 Cri LJ 286. This has been followed in a recent decision of this Court in the case of M. D. Farooq v. State of Karnataka, ILR 1990 Karnataka, 161 : 1990 Cri LJ 286. The relevant observations of the Supreme Court have been reproduced at Page 164 of the report as follows (at page 287; Cri LJ 1990) : "It is an admitted Position that neither the appellants nor Counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt, true that if Counsel do not appeal when Criminal appeals are called out it would the working of the Court and create serious problem for the Court. And if this happens often the working of the Court would become well nigh impossible. We are, fully conscious of this dimension of the matter but in criminal matters the convicts must be beard 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 on merits only after hearing the appellant his counsel. The Court might as well appoint a Counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without bearing either the appellants of 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 ....." It thus follows that though the Appellate Court can dismiss an appeal for default, still that cannot be considered as disposal of the appeal on merit. Thus it becomes necessary that the appeal be sent back to the appellate court for disposal on merits. That is what the Supreme Court had done in the case referred to above with a direction that the same should be disposed of on merits. Thus it becomes necessary that the appeal be sent back to the appellate court for disposal on merits. That is what the Supreme Court had done in the case referred to above with a direction that the same should be disposed of on merits. The prime reason appears to be that there is no provision in the Code of Criminal Procedure for dismissing the appeal for default and consequently no provision for restoration of the same at the instance of the party aggrieved by such an order. In that view of the matter, the only alternative left to this Court is to set aside the order of dismissal of the appeal and remit the appeal to the Sessions Court for disposal on merits by setting aside the order of dismissal. 6. The case of a revision petitioner is on much stronger ground inasmuch as the Court has got suo motu power to revise the proceedings of the lower Courts and can even exercise suo motur jurisdiction under section 397 of the Cr.P.C. S. 399(1) of the Cr.P.C. makes reference to the powers of the Sessions Judge but it only confines to a situation where a Sessions Judge himself calls for records. Under sub-sec. (2) of S. 399, where any proceeding by way of revision is commenced before a Sessions Judge under sub-sec. (1), the provisions of sub-secs. (2), (3), (4) and (5) of S. 401 shall apply. Therefore, that also does not make any difference because it makes applicable to the provisions of S. 401 of the Code of Criminal Procedure to the proceedings under sub-sec. (1) of S. 399 of the Cr.P.C. 7. It is further argued that in the case of a revision petition when the Court has jurisdiction to take action suo motu and the records are before it, it is necessary that the court applies its mind and disposes of the revision petition. Even in the case of revision petition, there is no provision for dismissal of the same for default. In this behalf the petitioners counsel invited reference to a decision of this Court in the case of Ibrahimsab v. Faridabi 1986 (2) All India Criminal Law Reporter, page 429). Even in the case of revision petition, there is no provision for dismissal of the same for default. In this behalf the petitioners counsel invited reference to a decision of this Court in the case of Ibrahimsab v. Faridabi 1986 (2) All India Criminal Law Reporter, page 429). At page 430 the relevant observations are as follows : "While Under Section 397, Cr.P.C., the Sessions Judge has ample power to call for and examine the records of any proceedings before any inferior Criminal Court within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Criminal Court, under section 339 (perhaps ought to S. 399), in case of any proceedings, the records of which have been called for by himself, the Sessions Judge has power to correct the orders of the inferior Court; and in doing so, he can exercise the same power as exercised by the High Court u/sub-sec. (1) S. 401, Cr.P.C. Once the records of the interior Criminal Court are called for examining the correctness, legality or propriety of the order, recorded or passed, and the revision is posted for hearing, whether the revision petitioner is present or not, the only order that can be made or passed is of rejecting or allowing the revision on merits. The order of dismissal of the revision for default is neither contemplated under the Code nor can one be made. Such an order of dismissal for default is no order. The Code of Criminal Procedure does not Contemplate of making an order of dismissal of revision for default." 8. The two decisions referred to above almost point to the same position, namely, that a Criminal Court i.e. the Appellate Court or Revisional Court has no power to dismiss the appeal or revision for default and as far as the power of dismissal is concerned, the decision rendered by the Supreme Court as well available for reference in a Criminal Revision petition. In that view of the matter when the orders passed by the learned Sessions Judge are without jurisdiction, the point of harassment caused to the respondent recedes to the back ground and only order that this Court can pass would be to set aside the orders challenged in these petitions and remit the Criminal Appeal No. 56/89 and Criminal Revision Petition No. 42/1989 to the learned Sessions Judge for disposal according to law. Accordingly these petitions are allowed. Both the parties shall appear before learned Sessions Judge on 22-1-1990 on which date both the counsel shall argue the matter on merits, if the matters are ready for argument. Revision allowed.