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2012 DIGILAW 1024 (RAJ)

Abdul Vahid v. State of Rajasthan

2012-04-20

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—This revision petition has been filed against the order dt. 17.5.1997 passed by the Special Judge, Schedule Castes/ Scheduled Tribe (Prevention of Atrocities) Act Court, Ajmer in Criminal Appeal No.6/1993 whereby the appeal has been dismissed on account of non-prosecution. 2. The only contention of the present petitioner is that the learned appellate court has committed illegality by not considering the law which clearly expects the appellate court to dispose of the appeal on merits and reliance has been placed on the judgment reported in the case of Banni Singh and others vs. State of U.P. ( AIR 1996 SC 2439 ). 3. The learned public prosecutor has submitted that the learned appellate court has placed reliance on the judgment reported in the case of Prabhu Lal vs. The State of Raj. (1995 Cr.L.R. (Raj.) p. 752) wherein it has been held that where the appellant has not turned up before the court after having got him released on parole, the appeal should be dismissed for non-prosecution and the reliance has been placed on Ram Naresh Yadav vs. State of Bihar ( AIR 1987 SC 1500 ). 4. The learned counsel for the petitioner has submitted that earlier the law laid down in Ram Naresh Yadav's case has been overruled by the Hon'ble Supreme Court in Bani Singh's case (supra). It has been held in Bani Singh's case (supra) as under:- "The plain language of S. 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 S. 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 Ss. 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. 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 the 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 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 the 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." 5. Looking at above, it can safely be concluded that the dismissal of the appeal for default for or non-prosecution does not envisages in any provision of the Code but only contemplates disposal of appeal on merits and hence the order of the appellate court is against the law. Therefore, the impugned order is liable to be set aside for disposal of the appeal on merit. 6. The revision petition is, therefore, allowed and the impugned order is hereby set aside and the matter is remitted back to the appellate court for disposal of the appeal on merit. The petitioner is directed to appear before the appellate court on 14.5.2012 . The record be sent forthwith to the appellate court.