Case Note & Summary
The applicant, Sk.Imam @ Babu S/o. Sk.Hussain, was convicted by the Judicial Magistrate First Class, Purna, District Parbhani, in RCC No.36/2006 for an offence under Section 498A of the Indian Penal Code (IPC) and sentenced to six months rigorous imprisonment and a fine of Rs.1,000 with default stipulation. He was acquitted of other charges under Sections 504, 506 read with Section 34 IPC, and the co-accused were acquitted. Aggrieved, the applicant filed Criminal Appeal No.72/2007 before the Sessions Court, Parbhani. During the pendency of the appeal, the applicant and his wife (the original complainant) amicably settled their differences and began residing together. Consequently, the applicant and his advocate did not attend the appeal hearings. The appellate court issued a non-bailable warrant against the applicant and ultimately dismissed the appeal for default on account of the applicant's absence. The applicant then filed the present criminal revision before the Bombay High Court, Aurangabad Bench, challenging the dismissal. The High Court examined the legality of dismissing a criminal appeal for default. It held that under Section 386 of the Code of Criminal Procedure, 1973 (CrPC), the appellate court is bound to dispose of the appeal on its merits after perusing the record and hearing the parties if present. There is no provision in the CrPC authorizing the dismissal of an appeal for non-prosecution or default of appearance. The court noted that the appeal was dismissed without any consideration of the merits, which is illegal and without jurisdiction. The High Court, exercising its revisional powers, set aside the order of dismissal and restored the criminal appeal to the file of the Sessions Court for fresh hearing on merits. The court directed the Sessions Court to decide the appeal expeditiously, preferably within three months, and to consider the fact that the parties have settled the matter amicably. The revision was allowed, and the rule was made absolute.
Headnote
A) Criminal Procedure Code - Appeal - Dismissal for Default - Section 386 CrPC - The appellate court is not empowered to dismiss an appeal for default of appearance of the appellant or his advocate; the appeal must be decided on merits even if the appellant is absent. The dismissal of the appeal for default is illegal and without jurisdiction. (Paras 3-6) B) Criminal Procedure Code - Restoration of Appeal - Inherent Powers - Section 482 CrPC - Where an appeal is dismissed for default, the High Court can exercise its revisional or inherent powers to set aside the dismissal and restore the appeal for hearing on merits, as the dismissal is a nullity. (Paras 6-7)
Issue of Consideration
Whether a criminal appeal can be dismissed for default of appearance of the appellant or his advocate, and whether the appellate court has the power to dismiss an appeal for non-prosecution.
Final Decision
The High Court allowed the criminal revision, set aside the order of dismissal of Criminal Appeal No.72/2007, and restored the appeal to the file of the Sessions Court for fresh hearing on merits. The Sessions Court was directed to decide the appeal expeditiously, preferably within three months, and to consider the fact that the parties have settled the matter amicably.
Law Points
- Criminal appeal cannot be dismissed for default in absence of express provision
- Appeal should be decided on merits even if appellant absent
- Section 386 CrPC mandates appellate court to dispose of appeal on merits
- Dismissal for default is illegal and without jurisdiction
