- (1.) This revision petition has been filed against the order dt. 17.5.1997 passed by the Special Judge, Schedule Castes/Scheduled Tribe (Prevention of Atrocities) Act Court, Ajmer in Criminal Appeal No. 6/1993 whereby the appeal has been dismissed on account of non-prosecution. The only contention of the present petitioner is that the learned appellate court has committed illegality by not considering the law which clearly expects the appellate court to dispose of the appeal on merits and reliance has been placed on the judgment reported in the case of Banni Singh and others vs. State of U.P., 1996 AIR(SC) 2439.
(2.) The learned public prosecutor has submitted that the learned appellate court has placed reliance on the judgment reported in the case of Prabhu Lal vs. The State of Raj.,1995 CrLR 752) wherein it has been held that where the appellant has not turned up before the court after having got him released on parole, the appeal should be dismissed for non-prosecution and the reliance has been placed on Ram Naresh Yadav vs. State of Bihar, 1987 AIR(SC) 1500.
(3.) The learned counsel for the petitioner has submitted that earlier the law laid down in Ram Naresh Yadav's case has been overruled by the Hon'ble Supreme Court in Bani Singh's case . It has been held in Bani Singh's case as under:- The plain language of S. 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and S. 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Ss. 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. 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 the 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 perusal of the record.;