P.K.Jain - (1.) HEARD Sri Shatrughan Singh, learned counsel for the revisionist and the learned A.G.A.
(2.) CRIMINAL Appeal No. 50 of 1995 was pending before 3rd Addl. Sessions Judge, Azamgarh who dismissed the same on 18.6.97 since neither the appellant nor his counsel was present. The learned Addl. Sessions Judge relied upon the decision of the Hon'ble Supreme Court in AIR 1987 SC 1500. An application for recalling the said order was moved before the said Court which was rejected on the ground that since there is no power to recall or review of the final order, no order can be passed. It is these order which are being challenged in this revision. I am constrained to observe that the learned Addl. Sessions Judge who passed the order dated 18.6.97 relied upon the decision of the Hon'ble Supreme Court which was overruled by the Hon'ble Supreme Court by its own decision Bani Singh and others v. State of U. P., AIR 1996 SC 2439. Learned A.G.A. very fairly concedes that a criminal appeal cannot be dismissed in default of the appellant or his counsel, it has to be decided on merit. In the case cited above, the Hon'ble Supreme Court has held that it is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or Indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court."
(3.) IN this view of the matter, the revision is finally disposed of at the admission stage. The impugned orders are set aside and the appellate court is directed to dispose of the appeal on merit in accordance with law.;