Judgment : 1. The Revision Petitioner herein is the Accused in C.C. No.290 of 2005 on the file of the Judicial magistrate No.1, Poonamallee and he was convicted by the Trial Court for offences under Sections 279 and 304-A, I.P.C. Aggrieved by the order of the Trial Court, the Revision Petitioner preferred an Appeal before the learned Principal Sessions Judge, Thiruvallur in C.A. No.41 of 2010. The said Appeal was dismissed on 8.6.2010 as the Accused/Revision Petitioner herain was called absent. Aggrieved by the said order, the Revision Petitioner has preferred this Criminal Revision. 2. The learned Counsel for the Petitioner submits that the Appeal was filed along with an Application for suspension of sentence before the Sessions Judge and the Appeal was called for admission. On 19.5.2010 during the vacation period, the Appeal was admitted and sentence of imprisonment imposed by the Trial Court was also suspended by the (vacation Judge) Fast Track Court, Thiruvallur. Then the Appeal was posed to the next date i.e. 8.6.2010. And on the said date, the Revision Petition instead of going to the Principal Sessions Judge, Thiruvallur, had gone before the iii Fast Track Court, Thiruvallur and he was standing there expecting that the case will be called. In the mean time, the case has been called before the Principal Sessions Judge and had been dismissed. 3. The learned Counsel for the Petitioner further Submitted that the Appeal had been dismissed on the very next hearing by the learned Sessions Judge and he had not given any opportunity for the Accused to argue his case through his Counsel. The learned Counsel also submitted that there is no provision in Code Criminal Proc3dure to dismiss the Criminal Appeal for non-appearance of the Accused and also relied on the decision of the Hon’ble Supreme Court reported in Bani Singh v. State of U.P, 1996 SCC (Crl) 848 and another decision reported in Madan Lal Kapoor v. Rajiv Thapar & Others, 4. The learned Additional Public Prosecutor fairly conceded that the Appeal should be disposed of only on merits and it cannot be dismissed for default or non-prosecution. 5. This Court considered the submission and perused the records. 6. The Appeal is admitted on 19.5.2010 and records were called and the Appeal was posed to 8.6.2010. The learned Additional Public Prosecutor fairly conceded that the Appeal should be disposed of only on merits and it cannot be dismissed for default or non-prosecution. 5. This Court considered the submission and perused the records. 6. The Appeal is admitted on 19.5.2010 and records were called and the Appeal was posed to 8.6.2010. On 8.6.2010, it is seen from the docket entry made that records have been received from the Trial Court and that the learned Judge had stated that the Appellant was called absent and the Appeal is dismissed. 7. This Court feels that the learned Judge could have posted the case to some other day or could have sent notice to the Accused. It is not known as to why the learned Judge has acted so hurriedly by dismissing the Appeal. Paragraph 14 and 15 of the decision of the Hon’ble Supreme Court reported in Bani Singh v. State of U.P, 1999 SCC (Crl) 848 (stated supra), read as follows: “We have carefully considered the view expressed in the said two decisions of the Court and, we may state that the view taken in Shyam Deo’s case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the Appeal fit for summary dismissal, it ‘must’ call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the Appeal after hearing the Accused or his Counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the Appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the Appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the Appeal on merits, not merely by perusing the reasoning of the Trial Court in the judgment, but by cross checking, the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the Trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the Appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. The law, therefore, does not envisage the dismissal of the Appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh yadav’s case that if the Appellant or his pleader is not present, the proper course would be to dismiss the Appeal for non-prosecution. 15. Secondly, the law expects the Appellate Court to give a hearing to the Appellant or his Counsel, if he is present, and to the Public Prosecutor, if he is present, before disposal of the Appeal on merits. Section 385 posits that if the Appeal is not dismissed summarily, the Appellate Court shall cases notice of the time and place at which the Appeal will be herd to be given to the Appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record hear the Appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the Appeal to be given to either the Appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the Appellant. So also Section 386 provides for a hearing to be given to the Appellant or his layer, if he is present, and both need not be heard. It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the Appeal is posted for hearing. This is the requirement of the Code on a plain reading of Section 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is different matter, but it is not bound to adjourn the matter. It can dispose of the Appeal after perusing the record and the judgment of the Trial Court. We would, however, hasten to add that if the Accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Accused/Appellant if his lawyer is not present. We would, however, hasten to add that if the Accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Accused/Appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav’ case did not apply the provisions of Sections 385-386 of the Code correctly when it indicates that the Appellate Court was under an obligation to adjourn the cases to another date if the Appellant or his lawyer remained absent. 8. In paragraph 4 of the decision of the Hon’ble Supreme Court reported in Madan Lal Kapoor v. Rajiv Thapar, (stated supra), it is observed as follows: “The mater relates to administration of Criminal justice. As held by this Court, a Criminal matter cannot be dismissed for default and it must be decided on merits” 9. Time and again, the Supreme Court and this Court has held that once the Appeal is filed, the Appellate Court cannot dismiss the Appeal for default or non-prosecution. Even if the Appellant is found absent continuously, the Appellate Court should engage a Counsel appointed by legal aid cell and Court must take utmost care to go through the records and find out whether there are any merits in the case. 10. The order passed by the learned Principal Sessions Judge. Thiruvallur dismissing the Appeal is set aside. As the Revision Petitioner did not get an opportunity to argue before the Sessions Court, the matter is remitted back to the Principal Sessions Court, Thiruvallur for fresh bearing of the Petitioner and disposal of the matter. The Criminal Revision Petition is allowed.