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2009 DIGILAW 1317 (MP)

Triveni Prasad v. State of M. P.

2009-11-27

SUSHMA SHRIVASTAVA

body2009
JUDGMENT : Smt . Sushma Shrivastava .:-- Applicanthas preferred this revision against the order dated 31.8.99 passed by SessionsJudge, Sidhi in Criminal Appeal No.46/96 dismissingthe appeal filed by the applicant for want of prosecution. 2.Applicant was convicted under Section 16(1) (a) (ii) of Prevention of FoodAdulteration Act, 1954 and sentenced to three months’ rigorous imprisonmentwith fine of Rs.500/- by Chief Judicial Magistrate, Sidhi in Criminal Case No.918/96. In Criminal Appeal preferred by the applicantagainst the aforesaid order of his conviction and sentence passed by ChiefJudicial Magistrate, Sidhi , when the appeal was fixedfor final hearing on 31.8.99, the applicant/appellant or his counsel did notappear for the whole day despite repeated calls. Learned Sessions Judge,therefore, cancelled the bail of the applicant granted to him in CriminalAppeal filed by him and also dismissed the appeal in absence of the applicant,also directed the trial court to issue non-bail able warrant against theapplicant for execution of the sentence passed on him, by the impugned orderdated 31.8.99, which has been assailed in this revision. 3.Learned Senior counsel appearing on behalf of the applicant submitted thatSessions Court gravely erred in dismissing the appeal in absence of theapplicant, as Criminal Appeal could not be dismissed for non-prosecution;despite absence of the appellant or his lawyer it should have been disposed ofon merits. Reliance was also placed on the decision of the Apex Court rendered in the case of Shyam Deo Pandey and Others vs.The State of Bihar reported in AIR 1971 Supreme Court Page 1606. 4.Learned counsel for the State also did not dispute this legal position that theCriminal Appeal, when fixed for final hearing, could not dismissed in absenceof the appellant or for non-prosecution. 5.The Apex Court in its three Judges’ Bench decision rendered in the case of Bani Singh and Others vs. State of U.P. reported in AIR(1996) 4 Supreme Court Cases Page 720 has also held that the Criminal Appealcannot be dismissed for non-prosecution. It would be profitable to refer to thefollowing observation made by their lordships : - "Theplain language of Section 385-386 does not contemplate dismissal of the appealfor non-prosecution simpliciter . On the contrary, theCode envisages disposal of the appeal on merits after perusal and scrutiny ofthe record. It would be profitable to refer to thefollowing observation made by their lordships : - "Theplain language of Section 385-386 does not contemplate dismissal of the appealfor non-prosecution simpliciter . On the contrary, theCode envisages disposal of the appeal on merits after perusal and scrutiny ofthe record. The law clearly expects the Appellate Court to dispose of theappeal on merits, not merely by perusing the reasoning of the Trial Court inthe judgment, but by cross checking the reasoning with the evidence on recordwith a view to satisfy itself that the reasoning and findings recorded by theTrial Court are consistent with the material on record. The law, therefore,does not envisage the dismissal of the appeal for default or non-prosecutionbut only contemplates disposal on merits after perusal of the record." 6.In view of the legal position enunciated above, in the instant case, when theCriminal Appeal filed by the applicant was fixed for final hearing, though theappellant and his counsel did not appear, it could not be dismissed for defaultof the appellant or non-prosecution; but it ought to have been decided onmerits. The impugned order dated 31.8.99, therefore, deserves to be set aside. 7.Revision is, therefore, allowed. The impugned order is set aside. The appeal isremanded back to the appellate Court for deciding it on merits in accordancewith law. Revision is accordingly disposed of.