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2015 DIGILAW 499 (ORI)

Hari Swain v. State of Orissa

2015-08-25

S.PUJAHARI

body2015
ORDER : CRL REV No. 372 of 2015 and Misc. Case No. 596 of 2015 Heard. Admit. This revision has been filed by the petitioner challenging the order dated 15.05.2014 passed by the learned 2nd Additional Session Judge, Puri, dismissing Criminal Appeal No. 48 of 2012, filed by the petitioner challenging the order dated 17.11.2012 passed by learned Nyayadhikari, Gram Nyalaya, Puri in G.R. No. 223 of 2009. It appears that when none appeared on behalf of the appellant on the date of hearing of the aforesaid criminal appeal, the same was dismissed for non-prosecution. Pursuant to the same, N.B.W. was issued against the petitioner by the trial Court to re-commit him to undergo the sentence. I am constrained to say that the aforesaid order of the learned 2nd Additional Session Judge Puri is contrary to the law laid down in the case of Bani Singh and Ors Vrs. State of Utter Pradesh, 1996 SCC (4) 720, wherein it has been held as follows: "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 Section 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 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 learned 2nd Additional Sessions Judge, Puri in oblivion to the aforesaid law laid down in the case of Bani Singh and Ors. Vrs. State of Utter Pradesh (supra) dismissed the criminal appeal for default. Therefore, this revision is allowed and the impugned order is set aside. Vrs. State of Utter Pradesh (supra) dismissed the criminal appeal for default. Therefore, this revision is allowed and the impugned order is set aside. Consequentially, the learned 2nd Additional Session Judge, Puri is directed to restore the appeal to file and dispose of the appeal after hearing on merit by reasoned judgment passed on re-appreciating the material evidence on record. The appeal be disposed of within two months of its restoration. The petitioner is directed to appear before the learned 2nd additional Session Judge, Puri with a certified copy of this order on or before 3rd September, 2015. N.B.W. issued and notice issued to bailer for re-commitment the petitioner to jail custody stands quashed. The petitioner is allowed to continue with the bail granted earlier. With the aforesaid order and direction, this CRLREV as well as the Misc. Case for stay stands disposed of being allowed. . Urgent certified copy of this order be granted on proper application. Cases disposed of.