Sukhdev Singh Kang, J. - (1.) THIS is a revision petition filed by Kalu Ram and others against the judgment dated 7th July, (sic), of the learned Additional Sessions Judge, Ambala, whereby he had dismissed the appeal filed by them against the order dated 28th March 1978, binding them down under section 107, Code of Criminal Procedure.
(2.) THE petitioners were proceeded against under section 107/150, Code of Criminal Procedure, in the Court of Sub Divisional Magistrate Jagadhri. He ordered that the petitioners be bound down for good behaviour and for keeping peace and for that purpose they should furnish sureties in the sum of Rs. 1,000/ - each Against this order, the petitioners filed an appeal The same came up for hearing before the Additional Sessions Judge, Ambala. He dismissed the appeal on 2nd of August 1978, for non prosecution. The relevant part of the judgment is reproduced below: - The case has been called out on a number of occasions. Neither the appellant nor his counsel have appeared. It is now 2.30 P.M. Again the case has been called out on this occasion also no one has appeared. The appeal is, therefore, dismissed for non -prosecution. An application was made on behalf the petitioners praying for the restoration and re hearing of the appeal on merits. This application was rejected by the learned Judge on 7th July, 1979 Aggrieved by these reader or the learned Additional Sessions Judge, the petitioners have filed the present petition. Mr. Kartar Singh, the learned counsel for the petitioners, has argued that a criminal appeal has not to be dismissed for non prosecution or for the absence of the appellant. The appellate Court is duly bound to go through the record and then give a finding on the merits of the case. It cannot such dismiss such an appeal for non prosecution or for definite. In support of this plea he has invited my attention to a decision in Shayam Deo Pandey and others v. The State of Bihar, A.I.R. 1971 S.C. 1006, where in it has been held: The requirement regarding the perusal of the record that has been sent for and received in the Court before disposing of an appeal cannot be trusted us an empty formaliy. A perusal of the record of a particular case and giving indication of such perusal in the order or judgment is a must before dismissing an appeal which has been admitted and notice where of has been issued on the ground of non appearance of the appellant or his pleader. Even where parties have been heard no order of dismissal can be passed without a perusal of the record. In the above case the appeal has not been dismissed in limine. It was the duly of the Court under section 423 of the Criminal Procedure Code to pursue the record. After such perusal, the Court had to pronounce judgment by giving indication that it had perused the record In the present case the learned appellate Court did not pursue the record and did not form its opinion on the merits of the case. It even on the application of the petitioner did refuse to reconsider the matter. The judgment is thus clearly violative of section 423, Criminal Procedure Code.
(3.) IN view of the above discussion, I accept this petition, set aside the orders dated 2nd August, 1978 and 7th July, 1979 and remand the case to the learned lower Appellate Court to decide the appeal afresh in accordance with law.;