Case Note & Summary
The petitioner, Dipak Tundalwar, filed a criminal writ petition challenging the order dated 28.6.2016 passed by the learned Additional Sessions Judge, Darwha, dismissing his appeal in default for failure to deposit paper book charges. The petitioner had been convicted by the trial court and preferred an appeal under Section 374 CrPC. The appellate court dismissed the appeal without considering the merits, solely on the ground that the appellant had not deposited the paper book charges. The High Court examined the legal position and held that a criminal appeal cannot be dismissed in default for non-prosecution or for failure to comply with procedural requirements like depositing paper book charges. The court relied on the Supreme Court judgments in Kishansingh v. State of Uttar Pradesh (1993) and Bani Singh v. State of UP (1996), which established that under Section 386 CrPC, the appellate court is duty-bound to decide the appeal on merits after perusing the record, regardless of the appellant's absence. The court distinguished the case of Uday Singh v. State of W.B. (2011), where appeals were dismissed under Article 136 of the Constitution, not under the CrPC. The High Court allowed the writ petition, set aside the impugned order, and directed the appellate court to restore the appeal to its original number and decide it on merits, after giving the parties an opportunity of being heard. The court also directed the appellate court to decide the appeal expeditiously, preferably within six months.
Headnote
A) Criminal Procedure - Appeal - Dismissal in Default - Section 386, 374 Code of Criminal Procedure, 1973 - Criminal appeal cannot be dismissed for non-prosecution or failure to deposit paper book charges; appellate court must decide on merits after perusing record - Held that the order dismissing appeal in default is illegal and liable to be set aside (Paras 2-5). B) Criminal Procedure - Appeal - Restoration - Section 386 CrPC - Distinction between civil and criminal appeals - Order 41 Rule 17 CPC allows dismissal for absence, but no corresponding provision in CrPC; criminal appeal must be heard on merits - Held that the appellate court erred in dismissing appeal for non-deposit of paper book charges (Paras 3-4).
Issue of Consideration
Whether a criminal appeal can be dismissed in default for failure to deposit paper book charges, and whether the appellate court is required to decide the appeal on merits under Section 386 CrPC.
Final Decision
The High Court allowed the writ petition, set aside the order dated 28.6.2016, and directed the appellate court to restore the appeal to its original number and decide it on merits after giving parties an opportunity of being heard, preferably within six months.
Law Points
- Criminal appeal cannot be dismissed in default for non-prosecution
- Section 386 CrPC mandates decision on merits
- distinction between civil and criminal appeals
- Order 41 Rule 17 CPC not applicable to criminal appeals
