DEVI CHARAN v. STATE OF U P — 1991 DIGILAW 1393 (ALL)

PALOK BASU, J. Debi Charan, Kishav and Ram Singh have been convicted by the Thrid Additional Chief Judicial Magistrate, Bijnor, in case No. 1640 of 1990 under Sec tions 457 and 380, I. P. C. and sentenced to certain terms of imprisonment and fine by his judgment and order dated 26-6-91. Against the said conviction and sentence the appellants filed Criminal Appeal before the Sessions Judge, Bijnor, which has been numbered as Criminal Appeal No. 54 of 1991. During the pendency of the appeal the applicants were granted bail. On 30-7-91 the aforesaid Criminal Appeal No. 54 of 1991 was taken up by the Sessions Judge, Bijnor, for hearing and the learned Sessions Judge, inter alia, held that: none is present for the appellants, I have gone through the evidence and the order of the learned Magistrate. The order of the learned Magistrate appears to be based on sufficient evidence which has been even correctly appreciated therefore, I see no force in this appeal and it fails. The appeal is dismissed. The order of conviction dated 26-6-91 is hereby confirmed. . . . . . " 2. Against the aforesaid order of the Sessions Judge dated 30-7-91 the applicants have come up is this Court through this revision. 3. Initially the proceedings before the lower Court in pursuance of the order dated 30. 7. 91 was stayed by this Court but ultimately it transpired that the applicants had not surrendered in pursuance of the order of dismissal of their appeal and consequently an opportunity to the applicants was granted to surrender to the judgment of the Sessions Judge. An application was filed yesterday along with which a certified copy of the order of the A. C. J. M. Bijnor, dated 11. 11. 91 has been filed indicating that the three applicants have been taken into custody in this case and sent to jail. An affidavit also has been filed today in support of the fact that all the three applicants have now abided by the direc tions of this Court and have surrendered before the A. C. J. M. to honour the judgment of the Sessions Judge. 4. Sri V. M. Zaidi, learned Counsel for the applicant and sri D. N. Yadav, learned A. G. A. have been heard at the admission stage since all the orders are vouched by-certified copies, it is being finally disposed of here and now. 4. Sri V. M. Zaidi, learned Counsel for the applicant and sri D. N. Yadav, learned A. G. A. have been heard at the admission stage since all the orders are vouched by-certified copies, it is being finally disposed of here and now. 5. A perusal of the order of the Sessions Judge, quoted above, indicates that he has by passed the mandatory provisions contained in Sections 385 and 386, Cr. P. C. and much more than those contained in Section 353, Cr. P. C. If it was a fact that the Sessions Judge had really gone through the merits of the case he should have discussed the evidence. The either upheld or set aside the findings of fact recorded by the Trial Court. Even if it is a judgment of affirmance it must indicate to this Court that the appeallate Court (Sessions Judge), had followed the provisions of law before he passed an order of dismissal of appeal. The help of the D. G. C. or any State Counsel was also not taken in the instant case. Under the circumstances it cannot be said that the hearing of the appeal had been properly done. Hearing of the Counsel is the rule and deciding the appeal in the absence of the Counsel or the appellant is an exception. At times reliance is placed by Courts below upon the Supreme Court decision in the case of Ram Naresh Yadav v. State of Bihar, A. I. R. 1987 SC 1500 for dismissing the Criminal appeal in default. The lower Courts will do well to remember that the said ruling was a matter arising from the High Courts judgment and some of the High Courts have provision of hearing of Criminal appeals governed by their rules of Court. In any case, if the aforesaid Supreme Court decision is followed in letter and spirit then the other part by which the defaulting Counsels complaint is directed to be made to the Bar Council should also be adhered to. 6. In view of the aforesaid discussion it is desirable to direct that the appeal be restored to the original number of the Sessions Judges Court and be heard on merits by some other competent Court than the Sessions Judge who has dismissed the appeal. 7. 6. In view of the aforesaid discussion it is desirable to direct that the appeal be restored to the original number of the Sessions Judges Court and be heard on merits by some other competent Court than the Sessions Judge who has dismissed the appeal. 7. Sri Zaidi states that during the pendency of the appeal in the lower Couri the applicants were on bail and he further states that his clients will appear on the date given by the Sessions Judge himself or the transferee Court, as the case may be and gel the appeal heard on merits on the date fixed by the Court concerned. In view of this State ment it is desirable to direct that the bail application of the applicants shall be heard and disposed of on the day the certified copy of this order is produced before the Sessions Judge concerned and the sureties to be demanded from the applicants shall not be more than the one fixed by him at the earlier stage. 8. Consequently this revision is allowed. The judgment and order of the sessions Judge, Bijnor, dated 30. 7. 91 in Criminal Appeal No. 54 of 1991 of his Court is sel aside. The said appeal shall be restored to the origional number and decided in accordance with law keeping in view the observations made above. Let a certified copy of this order be furnished to the learned Counsel for the parties within 48 hours. Revision allowed. .