Case Note & Summary
The applicant, Fayyaz Khayyum Qureshi, was convicted by the 5th Judicial Magistrate First Class, Aurangabad, in RCC No.102/2006 for offences under Sections 457 and 380 of the Indian Penal Code, 1860. He was sentenced to rigorous imprisonment for 3 years and a fine of Rs.500 for Section 457, and rigorous imprisonment for 2 years and a fine of Rs.300 for Section 380. The applicant appealed against this conviction before the First Additional Sessions Judge, Aurangabad, in Criminal Appeal No.89/2006. On 02/08/2008, the appellate court dismissed the appeal for default due to the absence of the appellant or his counsel. The applicant then filed a criminal revision application before the Bombay High Court, Aurangabad Bench, challenging the dismissal order. The High Court considered the issue of whether a criminal appeal against conviction can be dismissed for default. The court noted that it had previously dealt with similar situations and held that an appellate court cannot dismiss an appeal against conviction for default; it must decide the appeal on merits. The court relied on its earlier decision in Criminal Application No.1994/2010, which held that the appellate court has the power to restore an appeal dismissed for default, and that the dismissal for default is illegal. The High Court allowed the revision application, set aside the order of dismissal, and restored the criminal appeal to the file of the First Additional Sessions Judge, Aurangabad, for fresh hearing and disposal on merits. The court directed the appellate court to decide the appeal expeditiously, preferably within three months from the date of receipt of the order.
Headnote
A) Criminal Procedure - Appeal Against Conviction - Dismissal for Default - Section 386, 385, 401 CrPC - The First Appellate Court cannot dismiss a criminal appeal filed against an order of conviction for default of appearance of the appellant or his counsel; the appeal must be decided on merits after hearing the parties or their counsel, and if the appellant is in custody, the court may proceed ex parte but cannot dismiss for default. Held that the order dismissing the appeal for default is illegal and liable to be set aside (Paras 5-10).
Issue of Consideration
Whether the First Appellate Court can dismiss a criminal appeal for default when the appeal is filed against an order of conviction.
Final Decision
The revision application is allowed. The order dated 02/08/2008 passed by the First Additional Sessions Judge, Aurangabad in Criminal Appeal No.89/2006 dismissing the appeal for default is set aside. Criminal Appeal No.89/2006 is restored to the file of the First Additional Sessions Judge, Aurangabad for fresh hearing and disposal on merits. The appellate court is directed to decide the appeal expeditiously, preferably within three months from the date of receipt of the order.
Law Points
- Criminal appellate court cannot dismiss appeal against conviction for default
- appeal must be decided on merits
- inherent power to restore appeal dismissed for default
