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2013 DIGILAW 2232 (RAJ)

Sunny @ Eron v. State of Rajasthan

2013-12-10

NISHA GUPTA

body2013
JUDGMENT : 1. This Misc. Petition under Section 482 has been filed against the order dated 20.6.2009 passed by learned Sessions Judge, Ajmer in Cr. Appeal No. 130/2009 whereby the appeal of the present petitioner has been dismissed for non prosecution. 2. The short facts of the case are that a written report was filed by Smt. Om Kali Devi for the offence under Section 379 IPC. After investigation charge sheet has been filed against the present petitioner for the offence under Section 394/34 IPC and after trial, the present petitioner has been convicted for the above offence and sentenced for 3 years simple imprisonment and a fine of Rs. 2000/- and in default to deposit the fine to further undergo a sentence of 6 months S.I. vide order dated 30.4.2009. The present petitioner aggrieved of this order preferred an appeal but could not appear before the learned court below as his brother-in-law was facing some criminal case there and court has dismissed his appeal without considering the merits of the case vide impugned order, hence this petition. 3. The only contention of the present petitioner is that the appeal cannot be dismissed for non prosecution, hence the court below be ordered to decide the appeal after giving opportunity of hearing to the present petitioner.The learned Public Prosecutor has left the matter at the discretion of the court. 4. Heard the learned counsel for the petitioner and perused the impugned order. 5. Vide order dated 20.6.2009, the appeal has been dismissed for non prosecution as the appellant was absconding. The law is very clear on this point and reliance has been placed on Parasuram Patel & Anr. v. State of Orissa, (1994) 4 SCC 664 wherein it has been held: "It is now well settled that no criminal appeal can be dismissed on the ground of default in appearance. The Court has to go through the record of the case even in the absence of the appellants or their counsel and decide the matter on merit. Further reliance has been placed on Bani Singh & ors. The Court has to go through the record of the case even in the absence of the appellants or their counsel and decide the matter on merit. Further reliance has been placed on Bani Singh & ors. v. State of U.P., (1996) 4 SCC 720 wherein it has been held: "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." 6. In view of the above, the impugned order is perverse and illegal and liable to be quashed and the matter is remanded back to the court below to decide the appeal after considering the merits of the case and if the present petitioner is appearing before the court below, after giving him opportunity of hearing. The present petitioner shall appear before the court below on 14.1.2014 which has been stated to be the date of hearing before the court below.With these directions, the petition is disposed of.