- (1.)THIS revision petition is directed against the appellate order dated 19-6-1990 passed by the Additional Sessions Judge, Neemuch in Criminal Appeal No. 152/1989 whereby the appeal preferred by the petitioner against his conviction and sentence under Section 304-A, Indian Penal Code has been dismissed in default.
(2.)SECTION 385 of the Criminal Procedure Code, 1973 (for short 'the Code') provides that if the appellate Court does not dismiss the appeal summarily, it shall cause notice regarding the hearing of the appeal to be given to the persons therein enumerated. Section 386 ibid provides that after perusing the record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal under Section 377 or Section 378, the Accused, if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal.
(3.)IN the decision in Dr. Jainendra Kumar's case, AIR 1990 SC 1224 the Supreme Court set aside the High Court's decision rendered in appeal in the absence of the appellant's counsel. In the report reference has been made to Articles 21 and 39-A of the Constitution of India and Section 304 of the Code. In the decision in Ramnaresh Yadav's case, AIR 1987 SC 1500 it has been observed thus :
"it is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the Court and create a serious problem for the Court. And if this happens often the working of the Court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The Court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The Court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. "