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2001 DIGILAW 170 (GAU)

Jayanta Madhab Bora v. Bhusan Thakuria

2001-06-18

P.G.AGARWAL

body2001
Heard Mr. J. Ahmed, learned counsel for the petitioner. 2. The matter is disposed of at the stage of admission without issuing notice to the respondent. 3. This revision is directed against the following order of the learned Sessions Judge, Kamrup, Guwahati. "14.3.2001 : The appellant is absent without step today also. Nobody has taken any step. Record discloses that since 18.2.2000 the appellant remained absent. This being the position, appeal is dismissed as not pressed. The stay order passed vide order dated 14.6.2000 stand vacated. CR received from the lower Court be returned." 4. On the basis of the above, the criminal appeal was dismissed by the learned Sessions Judge for default and not on merit. The law on this point is well settled by the Apex Court in the case of Parsurram Patel vs. State of Orissa reported in (1994) 4 SCC 664 . The Apex Court held : "Section 386-Dismissal of criminal appeal in default is not proper and the Court must decide the matters on merits even in the absence of appellant or his counsel-It is well settled that no appeal can be dismissed on the ground of default in appearance and the Court has to go through the record of the case even in the absence of the appellant or their counsel and decide the matter on merit-The judgment of the High Court dismissing the appeal in default set aside and the matter & remanded to the High Court." 5. Learned trial Judge might have passed the impugned order in view of the decision of the Apex Court in Ram Naresh vs. State of Bihar, AIR 1987 SC 1500 . However the decision in Ram Naresh (supra) was overruled by the Apex Court in the case of Bani Singh vs. State of UP reported in (1996) 4 SCC 720 . The Apex Court held that the law does not envisage the dismissal of appeal for default or non prosecution; but only contemplates disposal on merits after perusal of the records. 6. In view of the above, the impugned order dated 14.3.2001 is hereby set aside. Learned Sessions Judge may proceed with the appeal in accordance with law. 7. Send down a copy of this order to the learned Sessions Judge, Kamrup, Guwahati. The revision petition stands disposed of.