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1996 DIGILAW 690 (PAT)

Dashrath Bhokta v. State Of Bihar

1996-10-14

LOKNATH PRASAD

body1996
Judgment Loknath Prasad, J. 1. This revision is directed against the order, dated 11.7.1990 passed in Criminal Appeal No. 60/88 by Smt. Rajendra Kumari, 4th Additional Judicial Commissioner, Ranchi through which the appeal preferred by the petitioners Was dismissed for default. 2. The fact in short, for the purpose of this application is that for some allegation of assault and theft the informant instituted CR. Case No. 136/85 which was decided by Sri Prabhat Kumar, S.D.J.M, Khunti vide his Judgment, dated 9th June, 1988 and found all the petitioners guilty under Secs. 147, 323 and 379, IPC and sentenced each of them to undergo rigorous imprisonment for three months under Sec. 147; three months under Sec. 323 and four months under Sec. 379, IPC and it was further ordered that all the sentences will run concurrently. Being aggrieved and dissatisfied with the order of conviction, all the petitioners preferred Criminal Appeal No. 60/88 which was pending before 4th Additional judicial Commissioner, Ranchi. It appears that on 11.7.1990 the appellants Advocate had not appeared before the appellate court and so on that very date, the appellate court recorded an order of dismissal of the appeal. The petitioners, Advocate filed a petition for restoration before the same court on the ground that on 11.7.1990, the arguing Advocate of the petitioners was ill and could not attend the court. But that plea was rejected and prayer for restoration of the appeal was also rejected. 3. Admittedly the petitioners preferred Criminal Appeal No. 60/88 against the order of conviction recorded by the Judicial Magistrate and it was dismissed for default on 11.7.1990 by the 4th Additional Judicial Commissioner. The only point urged on behalf of the petitioner is that the order of dismissal of appeal on default without hearing the counsel of the appellant is apparently bad in law in view of the provision of Sec. 386, Cr. P.C. and as such this order is liable to be set aside. In support of this contention the learned lawyer for the appellant has also relied upon the decisions of the Supreme Court reported in 1995 Vol. 1 East Cr. C 468 Parasu Ram Patel and Anr. V/s. State of Orissa and that of AIR 1987 SC 1500 . Ram Naresh Yadav and Ors. V/s. State of Bihar. On plain reading of Sec. 386, Cr. 1 East Cr. C 468 Parasu Ram Patel and Anr. V/s. State of Orissa and that of AIR 1987 SC 1500 . Ram Naresh Yadav and Ors. V/s. State of Bihar. On plain reading of Sec. 386, Cr. P.C., it is clear that when the appeal is preferred against the order of conviction in that circumstances, the appeal must be decided on perusal of the record and also after hearing the counsel of the appellant. From the order dated 11.7.1990, it is clear that the appellate court had neither heard the counsel for the appellant nor perused the lower court record and simply dismissed the appeal for default. So the order is apparently bad in law. No doubt the learned appellate court has relied upon the authority of the Supreme Court reported in AIR 1987 SC 1500 : Ram Naresh Yadavs case (supra), but it appears that the court below had not properly appreciated the principle laid dowa in Ram Naresh Yadavs case because the Apex Court has clearly said that the appeal against conviction could not be decided without hearing the counsel for the appellant and even if the counsel for the appellant is absent for some reason or the other then the appellate court may appoint a counsel at the State cost for the appellant and after hearing the counsel so appointed shall dispose of the appeal on merit. The similar view was taken by the Apex Court in Parasuram Patel (supra). 4. So, now the law is well settled that so far the appeal against the order of conviction is concerned, it must be decided after hearing the counsel for the appellant and in any view of the matter if the counsel is absent then the court should try to engage a counsel at the State cost for the appellant and then should decide the appeal. As the order of dismissal is clearly in disregard of the provisions of the settled law so this revision is allowed and the order dated 11.7.1990 passed by 4th Additional judicial Commissioner Ranchi, in Criminal Appeal No. 60/88 is hereby set aside and the appeal is remanded to the same court for fresh decision according to law, that is after hearing counsel for the appellant or if the counsel will not appear then the counsel at the cost of the State may be appointed for the appellant.