KANT TRIPATHI, J. - (1.) THIS petition under section 482 of the Code of Criminal Procedure has been filed to quash the impugned order 05.09.2008 passed by the Additional Sessions Judge, Ambedkarnagar in Criminal Appeal No. 17 of 2007.
(2.) HEARD learned counsel for the applicant and the learned AGA and perused the impugned order. It appears that the applicant Ghan Shyam was convicted and sentenced under section 7/16 of the Prevention of Food Adulteration Act by the Chief Judicial Magistrate, Ambedkarnagar vide the judgement and order dated 11.10.2007 rendered in Criminal Case No. 340 of 1999. The applicant preferred a criminal appeal questioning the order of conviction and sentence but the learned Additional Sessions Judge, Ambedkarnagar instead of dismissing the appeal on merit, dismissed the same in default of the applicant on 05.09.2008. The dismissal order is being reproduced as follows: "Case called out. Appellant absent. Today case fixed for argument. Appellant neither present nor move an adjournment application. exemption application moved by appellant but none is present to press, hence rejected. Call repeated It is 3.30 p.m. Order Appeal is dismissed on default of appellant. sent back to concerned lower Court within 15 days to comply with the sentence order against accused. File be consigned."
(3.) DISMISSAL of a criminal appeal in default of the appellant is not recognized in the criminal jurisprudence. If any criminal appeal is entertained for hearing and is not dismissed summarily under section 364 of the Code of Criminal Procedure (in short ?the Code?) at the stage of admission, the appellate court has to follow the procedure prescribed under sections 385 and 386 of the Code for hearing and disposal of the appeal. An opportunity of hearing to the appellant as well as to the State is necessary. In case the appellant, despite the opportunity given, fails to appear on the date fixed for hearing, the appellate court cannot dismiss the appeal in default of the appellant and is bound to peruse the record and the judgement and order appealed against on merit and pass appropriate order on the basis of the materials on record. In appropriate cases the appellate court may consider to appoint an Amicus Curie to represent the appellant and to assist the court, specially when, the appellant is in jail and is not represented by an Advocate.;