Judgment

RAGHUBAR DAYAL, J. : Sankatha Singh and others appeal against the order of the Allahabad High Court dismissing their application for revision of the order of the Sessions Judge, Gyanpur, holding the order of his predecessor for the rehearing of an appeal which had been dismissed earlier to be ultra vires and without jurisdiction and directing the Magistrate to take immediate steps to execute the order passed by it, according to law.

2. The appellants were convicted by the Magistrate, Ist Class. Gyanpur, of offence under Ss. 452 and 323 read with S.34, 1. P.C. Kharpattu, one of the appellants, was also convicted of an offence under S. 324, 1. P.C. They appealed against their conviction. The appeal was fixed for hearing on November 30, 1956, on that date, neither the appellants nor their counsel appeared in Court and the learned Sessions Judge dismissed the appeal. The relevant portion of his order is

"The appellant s have been absent, and their learned counsel has also not appeared to argue the appeal on behalf of the appellants. I have perused the judgment of the learned Magistrate and seen the record. I find no ground for any interference. The appeal is accordingly dismissed."

3. On December 17, 1956, an application was presented by the appellants praying that the case be restored to its original number so that justice be done to them. In explaining their getting injuries. This application was allowed, on July 2, 1 957, by the learned Sessions Judge, Sri Tej Pal Singh, who had dismissed the appeal. His reasons for allowing the application appear, from his order, to be that the application, supported by an affidavit, showed that there was sufficient cause for the non-appearance of the appellants-accused at the time of the hearing of the appeal, that S. 423 of the Code of Criminal Procedure (hereinafter called the Code) enjoined the appellate Court to dispose of the appeal on merits after hearing the appellant or his pleader and the Public Prosecutor, that no notice was ever issued to the appellants as required by S. 422 of the Code, that S. 367 of the Code laid down what a judgment should contain and that his judgment of November 30, 1956, amounted to no judgment as it did not contain some of those salient points, that the judgment was without jurisdiction as the case was not really considered and no independent judgment was arrived at and that it was necessary that the appeal be re-heard in the ends of justice.

4. Sri. Tripathi, who succeed Sri. Tej Pal Singh as Sessions Judge, and before whom the appeal was put up for re-hearing, was of the opinion that the applleal Court had no power to review or restore an appeal which had been disposed of and that therefore the order of his predecessor dated July 2, 1957, was ultra vires and passed without jurisdiction.

5. Against this order, the appellants went in revision to the High Court. The learned Judge of the High Court agreed with the views of Sri Tripathi and accordingly, dismissed the revision application.

6. The sole point for determination in this appeal whether Sri Tej Pal Singh could set aside his first order dated November 30,1956, dismissing the appeal, when neither the appellants nor the their counsel appeared and could order the re-hearing of the appeal. We are of opinion that he could not do so and that therefore the view taken by the High Court is correct.

7. A criminal appeal cannot be dismissed for the default of the appellants or their counsel. The Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order. Sri. Tej Pal Singh was aware of this as his order itself indicates. He did not dismiss the appeal for default. He himself Perused the judgment of the Magistrate and the record and did consider the merits, as he says in his order, " I find no ground for any interference. The mere fact that he had not expressed his reasons for coming to that opinion does not mean that he had