- (1.) B. K. Sharma, J. This is a revision against the judgment and order dated 16th February, 1984 passed by Sri Muhiul Islam, the then VII Additional Distiret & Sessions Judge, Bareilly in Criminal Ap peal No. 239 of 1982 whereby the dis missed the appeal and upheld the order dated 2-8-1982 passed by Sri Subhas Chand, the then Judicial Magistrate, N. E. Railway, Bareilly in Criminal Case No. 1213 of 1976, State v. Latoori, whereby he had convicted the accused-revisionist Latoori, alias Khem Karan for the offence under Section 3/4 of the Railway Property (Unlawful Possession) Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000 and in default of payment of fine, to suffer simple imprisonment for a period of three months.
(2.) HEARD learned Counsel for the par ties. The learned Counsel for the revisionist Latoori alias Khem Karan has claimed that the record of the trial Court was not before the learned Additional Ses sions Judge, Bareilly at the time of dispos ing of the appeal and consequently the judgment of the lower appellate Court could not be sustained for a moment. He has relied on the order-sheet of the file of appeal in which on various dates, it had been mentioned that the record of the trial Court has not come and that it be sum moned. However, the order- sheet of the date on which the appeal was heard, it does appear to be recorded properly and cor rectly. It has been specifically mentioned in the judgment of the lower appellate Court that if the lower appellant Court had perused the record of the trial Court care fully. Then in the judgment, he had also stated that the record shows certain facts. He has also made copies reference to the evidence on record. There is no reason why the Additional Sessions Judge, Bareily should record in the judgment that he had perused the record while the record of the trial Court was not before him. A reference to the report from the Record Room sent by the District Judge concerned along with his letter dated April 4, 1998 in reply to the requisition for the record of the trial Court, indicates that the record of the trial Court was weeded out on 8- (sic)-1989 meaning thereby that the record of the trial Court was available at the time of hearing of the appeal on 16-2-84. So this contention of the learned Counsel for the accused-revisionist cannot be upheld and is rejected. Next, the learned Counsel for the accused-revisionist has claimed that the accused revisionist was not given any notice of the date of hearing of the appeal by the learned lower appellate Court and the appeal had been decided ex parte. This argument of the learned Counsel for the accused-revisionist is substantiated by the record. The appeal was presented through a Counsel. Thereafter, a date was fixed for hearing of the appeal and an order was passed for informing the Counsel for the appellant and the learned D. G. C. (Crl.) However, there is nothing in the order-sheet to indicate that any intimation of any date of hearing was ever given to the learned Counsel for the appellant. The order-sheet of the file of lower appellate Court indicates that the accused-appellant (the present revisionist) did not appear before the appellate Court on any of the dates fixed; that on 3-3-1983, non-bailable warrant of arrest of the accused- appellant and notices to the sureties were ordered to be issued and this order was repeated on two successive dates. On 4-10-1983. The learned Counsel for the appellant was intimated to appear who had signed the order-sheet and the date of hearing was fixed. But the fact remains is that neither the learned Counsel, for the appellant did appear on any of the subsequent dates nor did the accused-appellant appear on any date. On the absence of the accused-appellant, who was on bail. The lower appellate Court should have first cancelled the bail and got his attendance be secured and then the appeal should have been decided on merits. Section 385 (1) of the Code of Criminal Procedure obliges the appellate Court that if it docs not dismiss the appeal summarily and it shall cause notice of the time and place at which such appeal will he heard to be given to the appellant or his pleader. The learned Additional Sessions Judge had decided the appeal on merit but without securing the attendance of the accused- appellant Latoori alias Khem Karan who is revisionist before this Court and consequently he did not have in op portunity of hearing as envisaged under the law. Consequently the judgment of the Court below is vitiated.
(3.) HOWEVER, it is not a simple case in which the matter may be remanded to the lower appellate Court for a fresh decision according to law. The reasons is that the learned Sessions Judge concerned has reported that the record of the trial Court had been weeded out as far back as in the year 1989 and the Court has also come to the conclusion that its reconstruction is not possible. It has been argued that consequently the remand of the revision to the lower appellate Court would serve no pur pose. The occurrence in this case had taken place on 1st March, 1976. The con viction by the trial Court was made on 2-8-1982 and the appeal was decided by the lower appellate Court on 16-2-1984. The revision had been filed in this Court on 8-5-1984 and the revisionist was admitted to bail by this Court on 15-5-1984. The learned Counsel for the revisionist has relied on the authority Sita Ram v. State, 1980 AWC585, wherein it was observed: "where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate Court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing the appeal. If the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct re- trial of the case since witnesses nor mally would be available and it would not cause undue strain on the memory of witnesses, where, however, the matter comes up for con sideration after a long gap of years as in the instant case, it would neither be just nor proper to direct re-trial of the case. " The learned Counsel for the revisionist has also placed reliance on the provision of Section 401 of the Code of Criminal Procedure which contemplates that the decision of a revision on merit be made after calling the record of the proceedings against which the revision has been filed. He has also placed reliance on a single Judge authority of this Court in the case of Rama Kant Singh v. State of U. P. , decided on21-l 1-1997 by Hon'ble Mr. Jus tice N. S. Gupta, in which it was said for appreciation and adjudication of correct ness about the legality and propriety of the order, when the original record was sum moned and the same was not available having been weeded out, it was not pos sible to sustain the orders of conviction passed by the two courts below against the accused-revisionist. In view of the above legal and factual position, it would be futile to direct the retrial of the accused-revisionist after such a long gap of time since March, 1976 (about more than 23 years) of the date of occurrence. Conse quently there is no option than to acquit the accused-revisionist.;