S.K.Jain - (1.) VIDE his judgment of conviction and order of sentence dated 8.10.92, passed by the District Magistrate, Almora, Maruti Van No. UAI 8416 of the petitioner was confiscated under Section 72 of the Excise Act, Appeal No. 15 of 1992 preferred by the petitioner was dismissed by the learned Sessions Judge, Almora vide his Judgment dated 14th February, 1994. It is that judgment dated 14.2.94 which has been challenged by the petitioner in this revision petition.
(2.) ALONG with the memo of revision an application under Section 5 of the Limitation Act for condonation of 5 months 28 days delay has been filed. Vide order dated 10.8.94, passed by this court, the applicant was directed to deposit Rs. 2,000 as security for expenses of the opposit -party. It was further directed that on receipt of the amount notice of the application under Section 5 of the Limitation Act shall be issued to the opposite party. The said amount was accordingly deposited on 18.8.94 and receipt therefor has been placed on record of this file. A perusal of the office report dated 8.4.95 shows that notice was issued to the learned Government Advocate which was duly served. No counter affidavit or reply to the application under Section 5 of the Limitation Act has been filed till date. Learned counsel for the State submits that he is ready to argue the matter on merits today. It is apparent on the face of record that the appeal filed by the petitioner Santosh Kumar Tandon was disposed of in his absence and that of his counsel also who did not appear before the court inspite of being called repeatedly. The ground for condonation of delay is that the counsel did not inform him about the dismissal of appeal. I find sufficient ground for condonation of delay and therefore, the delay is condoned. I have heard the learned counsel for the parties on merits. On a perusal of the impugned Judgment passed by the learned Sessions Judge, Almora, it would appear that on 14.2.94 when the appeal was fixed in his court the appellant or his counsel did not appear inspite of repeated calls. Consequently, the learned Sessions Judge heard the counsel for the State, perused the record and dismissed the appeal on merits. Learned counsel for the petitioner herein has vehemently argued that the impugned Judgment was illegal inasmuch as criminal appeal could not be dismissed on merits in the absence of the appellant. To buttress his argument he has cited at the Bar Sunil Kumar v. State of U. P., 1992 Crimes 245 ; Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1856. In the above said Supreme Court cases it has been laid down that criminal appeal cannot be dismissed on merits in the absence of the appellant or his counsel. A criminal appeal can only be dismissed on merits after hearing the learned counsel or the appellant and not in any other case. I have possibly no quarrel with the proposition of law laid down in the above said two judgments of the Supreme Court.
(3.) IN view of the above discussion it is obvious that the impugned judgment and order of the learned Sessions Judge, Almora, dated 14.2.94 cannot be sustained. Resultantly, this revision petition succeeds and is allowed. The impugned judgment and order both dated 14th February, 1994 are set aside. The case is remanded back to the learned Sessions Judge, Almora with a direction that he will dispose of the appeal on merits after affording opportunity to the appellant to argue his case either himself or through his counsel. The petitioner through his counsel is directed to appear in the Court of Sessions Judge, Almora on 18.9.95.;