J.C. Gupta, J. - (1.) -Heard Sri Ravindra Nath Rai, counsel for the applicants and learned A.G.A. for the State.
(2.) BRIEF facts are that the applicants were duly tried in the Court of Ist Addl. C.J.M. (Court No. 12), Azamgarh in Case No. 19 of 1994, State v. Ashok Kumar Singh and others and vide the judgment and order dated 30.3.1994, both of them were found guilty and were convicted and sentenced to 2 years S.I. and a fine of Rs. 3,000 each under Section 324/34, I.P.C. They were further convicted and sentenced to 3 years R.I. and a fine of Rs. 5,000 each under Section 326/34, I.P.C. Against the said judgment the applicants filed Crl. Appeal No. 13 of 1994 before the Sessions Judge, Azamgarh. The appeal was admitted and was transferred to the Court of Ist Addl. Sessions Judge for hering and disposal. It further appears that the appeal was fixed for hearing on 13.11.2000. On this date, since no one appeared on behalf of the appellants, the appellate court dismissed the appeal in default upholding the order of conviction passed by the trial court. It is stated by the applicants' counsel that the applicants had no knowledge of the date of hearing of appeal nor of the impugned order and as soon as they came to know of the dismissal of their appeal in default, they filed this revision before this Court and accordingly revision cannot be held to be barred by time. The Court finds weight in this submission of the learned counsel for the applicants. Hence the revision is treated as within time. Sri Rai submitted with vehemence that when appeal against an order of conviction is not summarily dismissed under Section 384, Cr. P.C., it has to be heard and disposed of in accordance with the procedure prescribed under Section 385, Cr. P.C. which states that if the appellate court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard, to be given to the appellant or his pleader. The appellate court shall then send for the record of the case if such record is not already available in the Court and hear the parties. Section 386, Cr. P.C. then lays down that after perusing such record and hearing the appellant or his pleader, the appellate court may dismiss the appeal if it considers that there is no sufficient ground for interfering or it may reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction or alter the finding, maintaining the sentence or with or without altering the finding, alter the nature or the extent of the sentence, but no so as to enhance the same. Sri Rai submitted that in the present case when the appeal was transferred from the Court of Sessions Judge to the Court of Ist, Addl. Sessions Judge, no notice was sent to the applicants of the date of its hearing. In any view of the matter, the appellate court had no jurisdiction or power to dismiss criminal appeal in default. It is well-settled that an appeal filed against an order of conviction cannot be dismissed in default and the order of conviction cannot be maintained without giving a clear-cut finding regarding guilt of the accused and that finding has to be based on appraisal of record. The impugned order does not indicate that the appellate court had perused the record and had applied its mind to the facts of the case. Further by virtue of Section 387, Cr. P.C. the provisions contained in Chapter XXVII as to the judgment of a criminal court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal. Section 354 of Chapter XXVII of the Code lays down what shall be the language and contents of every judgment. Clause (b) of sub-section (1) states that the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. In the impugned order these essential contents are not found. Neither any points for determination were framed nor there is any decision thereon. For all these reasons, the impugned order is not sustainable.
(3.) FOR the reasons stated above, the revision is allowed and the impugned order dismissing the appeal is set aside. The appeal shall now be restored to its original number and it shall be disposed of by the Sessions Judge himself or by any Court of Addl. Sessions Judge other than the Court presided over by the officer who has dismissed the appeal by the impugned order. The applicants are directed to apper before the Sessions Judge on 20.8.2001 along with certified copy of this order.;