Judgment :- (1) The learned Judicial Magistrate, 2nd Court, Diamond Harbour in Case No. C-55 of 2003 corresponding to trial No. 79 of 2003 by his judgment and order dated 19th May, 2006 convicted the present petitioner under Section 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs. 3 lacs in default to suffer simple imprisonment of six months. The petitioner preferred an appeal on 9th August, 2006 before the learned Additional Sessions Judge, Diamond Harbour being Criminal Appeal No. 2 of 2006 under Section 374 of the Code of Criminal Procedure. Since the appeal was beyond time an application under Section 5 of the Limitation Act was filed on the same day and the learned Judge directed issuance of notice upon the complainant and others and fixed 8th of September, 2006 for service return of notice. On 8th September, 2006, the appellant was absent without any step, while the complainant was present and the learned Judge observed that as 8th of September, 2006 was fixed for the hearing of the petition under Section 5 of the Limitation Act in the matter of condonation of delay and the appellant did not turn up nor did he take any steps, the application under Section 5 of the Limitation Act stood dismissed for non-prosecution. Consequently, the criminal appeal could not be admitted and was dismissed. On the same day i.e., 8th September, 2006 when the application under Section 5 of the Limitation Act was dismissed for non-prosecution on account of non-appearance of the appellant, the appellant filed a petition for reopening the matter. The learned Judge by his order dated 11th September, 2006 rejected that petition. Then on 25th of September, 2006 the appellant filed another memo of appeal under Section 374 of the Cr.P.C, being criminal appeal No. 7 of 2006 and exactly an identical petition under Section 5 of the Limitation Act to that so-called second appeal praying for condonation of delay was taken out but the learned Judge in the Court below dismissed the second application under Section 5.of the Limitation Act holding that the petitioner could not explain the delay in preferring the said second appeal within time. It is this order dated 29th February, 2008 passed in criminal appeal No. 7 of 2006 which is the subject matter of challenge in this application under Section 482 of the Code of Criminal Procedure. It is this order dated 29th February, 2008 passed in criminal appeal No. 7 of 2006 which is the subject matter of challenge in this application under Section 482 of the Code of Criminal Procedure. (2) It has been submitted by Mr. Jaharlal Dey appearing with Mr. S. Bapuli, learned Advocate for the petitioner that the first appeal was preferred on 9th August, 2006 along with an application under Section 5 of the Limitation Act and the ground of delay was explained properly to the effect that between 4th June, 2006 and 6th August, 2006 the appellant/petitioner had become seriously ill and the Court was also closed for summer vacation on and from 20th May, 2006 as a result of which he could not contact with his lawyer to prefer the appeal. Further, his lawyer took two days time for drafting the petition. Whether the grounds were convincing or not, these were the grounds averred in the application under Section 5 of the Limitation Act. Now the said application under Section 5 of the Limitation Act stood virtually dismissed for default because on 8th September, 2006 the appellant did not turn up to pursue his application which is why he was advised by his lawyer to file a second memo of appeal along with a second application for condonation of delay under Section 5 of the Limitation Act which was filed on 25th of September, 2006, but meanwhile, there was also an attempt to revive the original first application under Section 5 of the Limitation Act which accompanied the first memo of appeal-but that application for re-consideration of the order for dismissal of the petition for non-prosecution stood also rejected. Mr. Dey submits that the learned Court failed to appreciate that because of unavoidable circumstances the appeal could not be preferred in time. It is submitted that the learned Judges observation in the order dated 29th February, 2008 which was passed in connection with the second memo of appeal to the effect that no medical certificate was filed is erroneous because medical certificate was filed on 9th of August, 2006 when the first memo of appeal and the first application under Section 5 of the Limitation Act were filed. (3) Mr. (3) Mr. S. Sen, learned Advocate appearing for the O.P.,/complainant submitted that the grounds were not genuine and the second application under Section 5 of the Limitation Act is not maintainable because there cannot be tender of more than one appeal and more than one Section 5 application in identical languages after the first one was rejected either rightly or wrongly. Therefore, it is the submission of Mr. Sen that the second application under Section 5 of the Limitation Act could not be technically filed and further more, so far as the merit of the prayer for condonation of delay is concerned, there was, in fact, no genuine ground because the petitioner obtained certified copy of the order of the learned Magistrate on 20th May, 2006 itself and the ground of illness could not be ventilated successfully in absence of any medical document. Accordingly, it is submitted that this present application under Section 482 of Cr. P.C. should also stand rejected. (4) Upon hearing the learned Counsel for the petitioner and the learned Counsel appearing for the opposite party No. 2,1 agree with the learned Counsel appearing for the opposite party No. 2 that filing of second Section 5 application that accompanied a second memo of appeal could not be appropriate course of action. It is submitted on behalf of the petitioners Advocate that unlike Civil Procedure Code there is no provision in the Criminal Procedure Code for restoration of an appeal which is dismissed for default or for non-prosecution or for restoration of an application under Section 5 of the Limitation Act which stands dismissed for non-prosecution or dismissed for default. It is submitted that unlike the Civil Procedure Code where there is a provision of Order 41 Rule 19, C.P.C. or Order 9 Rule 9, C.P.C., or Section 151, C.P.C. there is no provision in the Criminal Procedure Code that entitles a learned Judge or Magistrate to restore an appeal or an application under Section 5 of the Limitation Act and as there is no such provision in the law the petitioner found no other way than to prefer a second memo of appeal along with second Section 5 application which by the learned Judges order dated 29th February, 2008 has been erroneously decided against the petitioner. (5) It bears recall here that the judicial pronouncements rendered by our High Court and Supreme Court in catena of cases are very particular on the point that a criminal appeal even if remaining unattended to by a lawyer for the appellant, must not face an order of dismissal for non-prosecution or for default because the order impugned in the proposed appeal carries conviction and sentence of imprisonment or fine or both, and when personal liberty of an individual is at stake, duty is cast upon the appellate authority to hear the appeal and dispose of the same on merit even appointing an able Advocate as amicus curiae. By way of ready reference the decision in Rishi Nandan Pandit 6 Ors. v. State of Bihar, reported in AIR 1999 SC 3850 can be had. This is also the spirit of the decision in Bhagawan Das v. The State reported in 1989 C Cr LR (Cal) 322. The question that has legitimately arisen is whether, if a criminal appeal cannot be dismissed for default on non-prosecution because of non-appearance of the lawyer on the date of hearing, an application under Section 5 of the Limitation Act attached to the said criminal appeal can be dismissed for default. Law is well settled that a criminal revision or a criminal appeal deserves decision by consideration on merit and not dismissal by default. When Courts duty extends to appointment of an Advocate as amicus curiae in case an appeal is not attended to by a lawyer on record in the context of this legal position as adumbrated in Rishi Nandan Pandit (supra) then obviously, the Court has to be circumspect and not casual in-dismissing an application under Section 5 of the Limitation Act for default particularly when there is no express provision in the statute unlike the provision in the Civil Procedure Code entitling a Judge or a Magistrate to restore an appeal or revision or application under Section 5 of the Limitation Act. Here, in the instant case it has rightly been submitted by the learned Counsel for the petitioner that 8th September, 2006 was not the date for hearing of the first application under Section 5 of the Limitation Act. It was a date for return of service of notice. Here, in the instant case it has rightly been submitted by the learned Counsel for the petitioner that 8th September, 2006 was not the date for hearing of the first application under Section 5 of the Limitation Act. It was a date for return of service of notice. As such, the Counsel of the appellant was not required to attend for hearing of the application under Section 5 of the Limitation Act but the learned Judge without perusing the previous order to find out as to for what purpose the appeal/application was fixed, dismissed the application for default which is absolutely erroneous. (6) Here, in the instant case, the appeal being Criminal Appeal No. 2 of 2006 stood virtually dismissed for default because of the fact that Section 5 application also stood dismissed for default following non-appearance for the appellant to move the petition under Section 5 of the Limitation Act. Had the appeal been in time, there would have been no other way open to the learned Judge than to hear the appeal on merit. An opportunity of hearing the appeal which the appellant could not avail of was lost because of dismissal of the application under Section 5 of the Limitation Act for default and/or for non- prosecution. The second Section 5 application appears to have been virtually a copy of the first application under Section 5 of the Limitation Act containing nothing more than that; and the grounds are that the Court remained closed for summer vacation from 20th May, 2006 and the appellant/petitioner had been seriously ill from 4th of June, 2006 to 6th of August, 2006. In the circumstances, there is no difference between the two applications under Section 5 of the Limitation Act so far as the contents of the said two applications are concerned. The learned Judge, in the impugned order dated 29th February, 2008 observed primarily that the ground of illness could not be proved by medical evidence, but the certified copy of the medical report has been filed to show that the medical certificate was filed before the learned Judge on 9th August, 2006 itself on which day the first application under Section 5 of the Limitation Act was filed and the doctor has stated that the petitioner had been suffering from jaundice between 4th of June, 2006 to 6th August, 2006. In the circumstances, the appropriate procedure would be either to allow the first application under Section 5 of the Limitation Act, which accompanied the first memo of appeal or to reject the said first application. There can be no second application under Section 5 of the Limitation Act by a tender of second appeal on the selfsame ground and on the basis of the selfsame medical certificate. What is to be revived or rejected is the first applicatioh itself which was filed in connection with memo of appeal bearing criminal appeal No. 2 of 2006. If the second memo of appeal and second Section 5 application for condonation of delay is to be considered then the petitioner has to explain the delay right up to 24th September, 2006. What therefore should be done is to either allow first Section 5 application by reviving it or rejecting it. Having regard to the grounds of delay which tend to be supportable by medical evidence, it appears to me that grounds which have been advanced could have found favour with the learned Judge, if the attention of the learned Judge was drawn to the fact that the medical certificate was filed in connection with criminal appeal No. 2 of 2006. The question, therefore, is now whether by setting aside the order dated 29th February, 2008 rejecting the second Section 5 application, the first application under Section 5 of the Limitation Act could be revived or not. The matter of the fact is that with regard to the contents of the two applications under Section 5, Limitation Act they are the same. I could have in exercise of power under Section 482 of Cr. P.C. simply revived the first application under Section 5 of the Limitation Act and then asked the learned Judge to consider and dispose of the same in accordance with law, but that would not serve any fruitful purpose because the learned Judge rejected the second Section 5 application which in fact, is a replica, or a mirror or rather a xerox copy of the first application. It is the criminal appeal No. 2 of 2006 that has to be revived and not the criminal appeal No. 7 of 2006 with which the second Section 5 application was filed. It is the criminal appeal No. 2 of 2006 that has to be revived and not the criminal appeal No. 7 of 2006 with which the second Section 5 application was filed. Therefore in furtherance of justice I deem it fit and appropriate to revive the first application under Section 5 of the Limitation Act which was filed in connection with memo of appeal being criminal appeal No. 2 of 2006; and this I do. Again since it would be too technical to ask the learned Judge to hear now the first Section 5 application I decide to dispose of the same by allowing the same especially when an identical petition in connection with the 2nd appeal was dismissed on merit by the learned Judge in the Court below. (7) Accordingly I allow the application under Section 482 of Cr. P.C. and set aside the order dated 29th February, 2008 passed by the learned Judge rejecting the second Section 5 application in connection with criminal appeal No. 7 of 2006 and the order dated 8th September, 2006 whereby the first application under Section 5, Limitation Act was dismissed for non- prosecution. The application under Section 5 of the Limitation Act which accompanied the memo of appeal in connection with criminal appeal No. 2 of 2006 stands revived and allowed. The learned Judge will now proceed with the hearing of criminal appeal No. 2 of 2006 in accordance with law. The criminal appeal No. 7 of 2006 shall not be proceeded with and stands disposed of accordingly. (8) Send a copy of this judgment to the learned Additional Sessions Judge, Diamond Harbour for his information and necessary action.