JUDGMENT : 1. This Criminal Revision Application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure Code (hereinafter referred to as “the Code”) by the Applicants-Original Accused being aggrieved and dissatisfied with the judgment and order dated 1.9.2018 passed by the learned 2nd Additional Sessions Judge, Ankleshwar in Criminal Appeal No. 18 of 2013 (old Criminal Appeal No. 47/2009), confirming the judgment and order dated 4.9.2009 passed by the learned Judicial Magistrate First Class, Valia in Criminal Case No. 1872 of 2007. 1.1 The impugned judgment is decided by the learned Appellate Court ex parte, without hearing of the Applicant, therefore, by the consent of learned Advocate for the Applicant and learned APP for the Opponent-State, the Criminal Revision Application is taken up for final hearing. Order under Challenge: 2. After considering the evidence on record, the learned Judicial Magistrate at Valia convicted the Applicants under Section 248(2) of the Code for the offence under Sections 380, 457 and 114 of IPC by order dated 4.9.2009 and sentenced to undergo SI for 1 year and to pay fine of Rs.1,000/- for the offence under Section 380 IPC. The Applicants were also sentenced to undergo SI of 2 years and to pay a fine of Rs.1000/- for the offence under Section 457 read with Section 114 IPC. The learned Magistrate ordered that the appellants to undergo one year imprisonment for the offence under Section 380 and after completion of 1 year they shall have to undergo another 2 years of imprisonment under Section 457 read with Section 114 IPC. 3. The Applicant Accused has challenged the order of conviction passed by the learned trial court in Criminal Case No. 531/2009 before the learned 2nd Additional Sessions Judge, Ankleshwar. The Appeal was registered as Criminal Appeal No. 18/2013 (Old No.47/2009), which came to be dismissed vide judgment and order dated 1.9.2018. Submission of Learned Advocates for the Parties: 4. Learned Advocate Mr. M.M.Saiyed for the Applicants has argued that the the impugned judgment and order is passed in violation of principle of natural justice. That no notices were issued either to the Applicants or their learned Advocates. That the impugned judgment and order is against the record that the Advocates for the Applicants were not heard before passing the order. M.M.Saiyed for the Applicants has argued that the the impugned judgment and order is passed in violation of principle of natural justice. That no notices were issued either to the Applicants or their learned Advocates. That the impugned judgment and order is against the record that the Advocates for the Applicants were not heard before passing the order. That the Appeal was transferred to the learned Sessions Court on 11.5.2018 and it was listed for the first time on 28.5.2018. That even the Rojkam of the appeal shows that neither the Applicants nor their Advocates were present before the learned Judge, the learned Sessions Judge ought to have issued notice to the Advocates and parties before passing the impugned order. That even the Rojkam dated 1.9.2018 records the presence of Advocates but the Appeal has been dismissed on account of absence of the Appellants. That the presence of Advocate and Applicants were not reflected in the Rojkam during the period in which Appeal was filed before the learned Sessions Judge, Ankleshwar. That the judgment relied upon by the learned Sessions Judge is not applicable to the facts of the present case and that in absence of any proof about service of any notice the learned Sessions Judge ought not to have considered them as absconders. Learned Advocate for the Applicant has relied upon the judgment in reported in 2016(2) GLH 128 in case of Dr. Niraj Devnarayan Shukla v/s State of Gujarat. 5. Learned APP Mr. K.L.Pandya for Respondent - State has argued that the learned trial court has passed legal, proper and correct order. It is further argued that the Appellant was absent during the hearing of Appeal though the opportunity is given to the Applicant Accused. It is also argued that considering the conduct of the Applicant Accused, this Criminal Revision Application is required to be dismissed. Merit of the Case 6. Brief Facts: As per the complaint, it is stated that on 21.10.2007 at about 10:30 hours at village Moje Timrolia, the Applicants Accused persons opened the back door of the house of the complainant, inserted the hands from the whole and opened the stopper, entered into the house at night and brought the almirah into the field and broken the same with the help of hammer, committed theft of cash of Rs.32000/- and during this time, gold and silver key chain worth Rs.3600/- had fallen. Thereafter the complaint was filed under Sections 380, 457, 114 of the Indian Penal Code (hereinafter referred to as “the IPC”) before the Valia Police Station, District Bharuch. 7. Learned Appellate Court has proceeded in Appeal in absence of the Applicant Accused. It is stated in paragraph 16 of the impugned judgment that though there is a condition that the Applicant/Accused shall remain present at the time of hearing the appeal, the Applicant/Accused were remained absent since many years in spite of bailable warrant has been served. 7.1 Learned Appellate Court has considered the judgment reported in 2009 Cr.LJ 1486 in case of Mahendra Bhogilal Tavdi v/s State of Gujarat and dismissed the Appeal. 7.2 On perusing the copy of the Rojkam at page 97 to 99 in this Criminal Revision Application, it reveals that on establishment of the court of Additional Sessions Judge at Ankleshwar, District Bharuch, the Appeal was transferred vide District Court office and No. Cri./A 17/874/2018 dated 11/5/18. 7.3 The Appeal was taken on board on 25.5.2018, 11.6.2018, 26.6.2018, 9.7.2018, 16.7.2018, 7.8.2018, 14.8.2018. On these days it is mentioned that matter is presented, parties and their Advocates are absent, matter is adjourned for hearing. It is nowhere mentioned about bailable warrant is issued or served. 7.4 On perusing the Rojnam dated 1.9.2018, it is stated that, “parties and their Advocates are present. Judgment is pronounced in open court and the matter is disposed of. Judgment at Exh.21” 8. Learned Advocate for the Applicant Accused has vehemently submitted that the learned Appellate Court has considered the ratio laid down in case of Mahendra Bhogilal Tadvi (supra) though the said judgment is declared as per incuriam in case of Niraj Devnarayan Shukla v/s State of Gujarat. There is substance in the force of his argument and the action on part of learned Appellate Court has made prejudice to the right of the Appeal of a convict. 9. It is an admitted fact that the learned Appellate Court has not discussed any evidence on record produced before the trial court and dismissed the Appeal of the Applicants Accused. One should not be condemned unheard. If the learned trial court thought fit that the presence of the Applicants Accused is required, there are ample powers under the Code to the court to secure presence of the Applicant Accused before the court. One should not be condemned unheard. If the learned trial court thought fit that the presence of the Applicants Accused is required, there are ample powers under the Code to the court to secure presence of the Applicant Accused before the court. Learned Appellate Judge has not exercised such power instead of that the Appeal was dismissed in absence of the Applicants Accused. 10.Therefore, the order dated 1.9.2018 passed by the learned Appellate Court in Criminal Appeal No. 18 of 2013 is required to be quashed and set aside. 11.Considering the facts and circumstances and the averments made in the memo of Criminal Revision Application, the arguments advanced by both the sides, this court is of the view that the Criminal Revision Application deserves to be allowed and accordingly stands allowed. The impugned judgment and order dated 1.9.2018 passed by the learned 2nd Additional Sessions Judge, Ankleshwar in Criminal Appeal No. 18 of 2013 is hereby quashed and set aside. 12. Time and again this court has observed that conviction appeals are disposed of in absence of accused by learned Sessions Judge, without securing the presence of convict and without assigning reasons for doing so. 13. The Hon’ble Supreme Court has distilled the legal position in case of K.S.Pandnranga vs. State of Karnataka reported in (2013) 3 SCC 721 as to deciding with an appeal wherein absence of the convict as well as his counsel is in issue. 13.1 This court by larger bench while deciding the reference in case of Niraj Devnarayan Shukla (supra) has framed certain procedure as regards to dealing with the appeal by the High Court where convict is absconded. 14. The following procedure is required to be considered by the Sessions Judges while dealing with conviction appeals under the Code wherein convict/Advocate is/are not available: (i) If the Advocate appearing for the appellant-convict is present and is ready to proceed with the appeal, the Court has to decide the same on merits and reasoned judgment is to be delivered even if the convict is absconding. It is needless to say that the convict should always be subjected to consequences of his abscondance. (ii) The court cannot dismiss in default of convict, an appeal for non-prosecution. It is needless to say that the convict should always be subjected to consequences of his abscondance. (ii) The court cannot dismiss in default of convict, an appeal for non-prosecution. (iii) If the convict is absconding and his Advocate is absent, and if the convict has jumped the bail/temporary bail granted by the court, the court itself shall take recourse provided under the provisions of the code to secure the presence of absconding convict and can issue; (a) notice to surety, recover the amount of surety, if surety is available; (b) issue non-bailable warrant for arrest of convict; (c) pass orders of attachment of his property declaring him proclaimed offender, etc. under Sections 82, 83 of the Code. (iv) after exhausting all possible efforts if the convict could not be traced out and if the court is satisfied and is of the opinion that the convict is recalcitrant and has shown total disrespect to the orders passed by the court and has jumped the bail / temporary bail, the court can dispose of the appeal after perusing the record and judgment of the trial court. If the court deems it appropriate to appoint a pro bono lawyer to assist it, nothing in law would preclude the court from doing so. (v) that if the case is decided on merits in the absence of the appellant convict, the High Court can remedy the situation. 15. Considering the importance of the issue, it would be appropriate to circulate the copy of this judgment by e-mail to District Judiciary through Principal District Judge of the State. Registrar General is directed to do needful for the same. 16. Criminal Appeal No. 18/2013 (old Appeal No. 47/2009) on the file of learned 2nd Additional Sessions Judge, Ankleshwar will stand revived for hearing afresh. The Applicants Accused will appear before the court of learned 2nd Additional Sessions Judge, Ankleshwar on 20.05.2019 along with their counsel. The Applicant/Accused will submit fresh bail bond before the Appellate Court. The learned Sessions Judge is directed to hear the matter and dispose the same according to law as expeditiously as possible. Rule is made absolute. Direct service permitted.