JUDGMENT : D.K. Trivedi, J. Rule. Mr. Pancholi, learned Addl.P.P. waives service of Rule on behalf of the respondent State. By consent of the counsel, rule is fixed forthwith. 2. The petitioners original accused has filed this revision application and challenged the order passed by the learned Additional Sessions Judge, Patan dated 28.10.2004 passed in Criminal Appeal No. 26 of 2002, by which the learned trial Judge has dismissed the appeal for default as the advocates appearing for the appellants accused were not present nor even the accused were present when the matter was called out. 3. As found from the judgement and order recorded by learned JMFC Chanasma dated 8.10.2001, the petitioners accused were convicted and sentenced for the offence under Sections 498-A, 325, 323, 114 of the IPC and after recording conviction as aforesaid, the court has imposed sentence as well as fine. The petitioners original accused had preferred an appeal and challenged the said order by filing appeal before the Court of the learned Sessions Judge, Mehsana. The appeal was filed by the appellants accused through advocates. 4. Mr. Barot, learned advocate appearing for the petitioners has brought to my notice that it is only after the District Patan was established, the appeal filed by the petitioners accused in the court of learned Sessions Judge, Mehsana is transferred to the Court of the learned Additional Sessions Judge, Patan and when the matter was called out, the learned advocates for the appellants were not present. It is also found that when the appeal was filed, the accused were released on bail and accordingly, as found from the order under challenge, the learned Judge has observed that the parties are not interesting in prosecuting with the matter and accordingly, the appeal filed by the appellants were dismissed for default and the bail bond furnished by the appellants were stand cancelled. Once the accused were on bail, one cannot expect that the accused were not interested in prosecuting with the matter. It is true that even earlier on two occasions neighter accused nor the advocates were present before the court. Mr. Barot has accordingly vehemently urged that the learned trial Judge has committed error by observing that the accused were not interested in prosecuting the appeal once they were released on bail and further that the accused had challenged the order of conviction and sentence recorded by the learned Magistrate. Mr. Barot has accordingly vehemently urged that the learned trial Judge has committed error by observing that the accused were not interested in prosecuting the appeal once they were released on bail and further that the accused had challenged the order of conviction and sentence recorded by the learned Magistrate. According to Mr. Barot that it is only after the Patan district was separated, the appeal was transferred to Mehsana District Court to Patan District Court and the advocate could not remain present before the court when the matter was called out. Mr. Barot has also submitted that the appeal filed by the appellants was required to be decided on merits and not required to be dismissed for default. In support of his submission, he has placed reliance upon the decision of the Apex Court in the matter of Bani Singh and others v. State of U.P. reported in 1996 SCC (Cri.) p.848. In the said decision, the Supreme Court has considered various provisions namely Section 384, 385 and 386 of the Cr.P.C.. The Supreme Court has also considered the earlier decision of the Apex Court in case of Ram Naresh Yadav v. State of Bihar, reported in AIR 1987 SC 1500 . The Supreme Court has accordingly, as per the decision in the matter of Bani Singh (Supra) has overruled the earlier decision of the Apex Court rendered in Ram Naresh (Supra). 5. Mr. Pancholi, learned Addl.P.P. has also brought to my notice the decision of this Court in the matter of Amratbhai Lilabhai Desai v. State of Gujarat, reported in 2002 (3) GLR p.1993, wherein, the learned Single Judge has in term held that the appeal can be dismissed for default, however, appeal cannot be disposed of on merits. 6. In light of the decision of the Apex Court, the court is of the view that dismissing the appeal for default is not proper. The court is also of the view that learned PP was present and he ought to have brought to the notice of the Court about the decision of the Apex Court. In my view, the order under challenge deserves to be set aside as the appeal filed by the appellants accused decided on merits. The court is also of the view that learned PP was present and he ought to have brought to the notice of the Court about the decision of the Apex Court. In my view, the order under challenge deserves to be set aside as the appeal filed by the appellants accused decided on merits. Accordingly, while allowing this revision application, the order passed by the learned Sessions Judge Patan dismissing the appeal for default dated 28.10.2004 in Criminal Appeal No. 26 of 2002 deserves to be set aside. Accordingly, the appeal filed by the petitioners is restored to file and the same is ordered to be disposed of in accordance with law. As the accused persons were on bail during trial, the petitioners accused shall furnish fresh bond and they shall continue in bail till the out come of the said appeal. 7. Mr. Barot, learned advocate appearing for the petitioners has assured this court that petitioners accused as well as their advocates shall remain present before the court to enable the court to decide the appeal in accordance with law. The revision application is accordingly allowed in above terms. Rule is made absolute accordingly. Direct service permitted. Revision allowed.