ORDER : 1. Instant Criminal Revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, lays challenge to order dated 22.3.2021, passed by learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, Himachal Pradesh, whereby appeal bearing No. 60 of 2015, having been filed by the petitioner-accused ( hereinafter referred to as the accused), laying therein challenge to judgment of conviction dated 28.5.2015 and order of sentence dated 29.5.2015, passed by Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P. came to be dismissed in default. 2. Mr. B.R. Sharma, learned counsel representing the respondent fairly states that prayer made in the instant petition deserves to be allowed for the reason that criminal appeal having been filed by the accused could not be dismissed by court below in default. 3. By now, it is well settled that appellate court while exercising appellate power is under obligation to decide the appeal on its merit and definitely cannot dismiss the appeal in default. Reliance in this regard is placed upon the judgment rendered by Three Judges Bench of Hon’ble Apex Court in Bani Singh and Others vs. State of U.P. (1996) STPL 7163 SC, wherein it has been held as under: “9. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing? 10. In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. 10. In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the Old Code (the corresponding provisions are Sections 385-386 of the present Code), this Court in paragraph 19 of the judgment held as under: The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the Appeal; but that disposal must he after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.” 11. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed. 12. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.” 11. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed. 12. In Ram Naresh Yadav's case, this Court, without making a specific reference to Section 386 or any other provision of the Code and without noticing the ratio of Shyam Deo's case concluded thus: “It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants.” (Emphasis added) 13. What then is the area of conflict between the two decisions of this Court? In Shyam Deo's case, this Court ruled that once the Appellate Court has admitted the appeal to be heard on merits, it cannot dismiss the appeal for non- prosecution for non-appearance of the appellant or his counsel, but must dispose of the appeal on merits after examining the record of the case. It next held that if the appellant or his counsel is absent, the Appellate Court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. It next held that if the appellant or his counsel is absent, the Appellate Court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. In Ram Naresh Yadav's case, the Court did not analyse the relevant provisions of the Code nor did it notice the view taken in Shyam Deo's case but held that if the appellant's counsel is absent, the proper course would be to dismiss the appeal for non-prosecution but not on merits; it can be disposed of on merits only after hearing the appellant or his counsel or after appointing another counsel at State cost to argue the case on behalf of the accused. 14. We have carefully considered the view expressed in the said two decisions of this 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 crosschecking 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. 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 an appeal for non-prosecution. 15. 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 an 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 cause notice of the time and place at which the appeal will be heard 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 lawyer, 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 Sections 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 a 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's case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent. 16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation is there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.” 4. In the case at hand, order dismissing the appeal in default itself reveals that on 22.3.2021, neither appellant came present nor his counsel and as such, court below instead of adjourning the matter to some other date dismissed the appeal in default. Hon’ble Apex Court in the aforesaid judgment, as taken note hereinabove, has categorically held that litigation cannot be allowed to suffer on account of absence of his counsel, rather in such like situation, court after having taken note of the entire material placed before it, is bound to decide the appeal on merits. Hon’ble Apex Court in the aforesaid judgment, as taken note hereinabove, has categorically held that litigation cannot be allowed to suffer on account of absence of his counsel, rather in such like situation, court after having taken note of the entire material placed before it, is bound to decide the appeal on merits. In the absence of counsel representing the appellant, court has wide power to appoint legal aid counsel on behalf of the accused. Since consequence of dismissal may be grave in nature, parties especially appellant is required to be afforded due opportunity of being heard before disposal of the appeal, but if he/she does not appear for some reason it is boundant duty of the court to peruse the entire record i.e. pleadings and evidence before delivery of judgment on merits. 5. Since in the case at hand, court below has proceeded to dismiss the appeal in default on account of absence of appellant and his counsel, prayer made in the instant petition deserves to be allowed. 6. Consequently, in view of the above, the present petition is allowed and impugned order dated 22.3.2021, passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh, is quashed and set-aside and case is remanded back to the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Himachal Pradesh with the direction to decide the appeal afresh in accordance with law. 7. Learned counsel representing the parties undertake to cause presence of their respective clients before the Court below on 5.1.2022, enabling it to decide the appeal afresh expeditiously, preferably within a period of six months. 8. Registry is directed to apprise the learned Court below with regard to passing of the instant order, enabling it to do the needful well within stipulated time. Pending applications, if any, also stand disposed of.