- (1.) KUNDAN Singh, J. This revision petition has been directed against the judgment and order dated 30th May, 1985 passed by III Additional Sessions Judge, Varanasi, dismissing in default Criminal Appeal No. 168 of 1983 (Hanif and others v. State), which was filed against the judgment and order dated 30th June, 1983 passed by XI Additional Munsif-Magistrate, Varanasi, by means of wliich he convicted each of the applicants under Sections 323, 504 and 506 of the Indian Penal Code and sentenced them to un dergo rigorous imprisonment for one month, ten days and one month respectively. However, the sentences were di rected to run concurrently.
(2.) SRI Vinod Prasad, learned Counsel for the applicants, submitted taht learned lower appelalte Court erred in law while dismissing the appeal for non-prosecution because once the appeal was admitted, it cannot be dismissed summarily in default. SRI Vinod Prasad, learned Counsel for the applicants, submitted that apex Court in Bant Singh v. State of U. P. , 1996 (33) ACC 677, has overruled the earlier deci sion in Ram Naresh Yadav and Ors. v. State of Bihar. AIR 1987 SC 1500 and it has been held that the appeal cannot be dis missed for default or non-prosecution. The appeal ought to have been dismissed on merits after perusal of the record. Having gone through the record and hearing learned Counsel for the appli cants I found that in the present case learned III Additional Sessions Judge passed the following order on 30-5-1985: "called out. No one is responding from the side of appellant. Hence dismissed. " This order shows that the learned lower appellate Court dismissed the appeal filed by the appellant; applicants herein, for non-prosecution. The material on the record was not considered by the lower appellate Court. The plain language of Sections 385 and 386 of the Code of Criminal Procedure does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. In Bani Singh (supra) the Supreme Court has clearly laid down as under: "the law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after pe rusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non- prosecution. " In view of the decision of the apex Court in Bani Singh (supra), the impugned order of dismissal passed by the lower ap pellate Court on the appeal filed by the appellants, applicant herein, is not sus tainable in the eye of law and liable to be set aside. The revision is allowed and the judgment and order dated 30th May, 1985 passed by III Additional Sessions Judge, Varanasi, in Criminal Appeal No. 168 of 1983 is set aside. The case is remanded to the learned Sessions Judge, Varanasi for decision on merits, who may decide the case himself or transfer the case to a Court of competent jurisdiction for decision on merits in accordance with law. Revision allowed. .;