IMPORTANT POINT
Language of Sections 385 an4 386 Cr.P.C. does not contemplate dismissal of appeal for non-prosecution simplicitor.

JUDGMENT

Rajendra Saxena, J. - Notice was given to the learned P.P. and he has accepted the same.

2. This petition filed u/s 482 Cr.P.C. has been preferred against the orders dated 13-1-1997 and 14-10-1996 passed by the learned Divisional Commissioner, Bikaner,

3. Succinctly stated, the relevant facts for the disposal of this petition are that a complaint was lodged against the petitioner before the District Magistrate, Churu u/s 3 of the Rajasthan Control of Gundas Act, 1975. The learned District Magistrate after examining the relevant record and hearing the parties by his judgment dated 26-6-1996 accepted the complaint and ordered that the petitioner should reside out of the jurisdiction of District Churu for a period of six months on the conditions mentioned in the said order. The petitioner assailed the said order by filing an appeal before the learned Divisional Commissioner. Bikaner. The said appeal was fixed on 14-10-1996 for hearing but on that date neither the petitioner nor his Advocate Was present. However A.P.P. was present on behalf of the State. The learned Divisional Commissioner by his order dated 14-10-1996 dismissed the said appeal in default and non-prosecution. Thereafter the petitioner filed a restoration application before the Divisional Commissioner, who by his impugned order dated 13-1-1997 dismissed the same on the ground that there is no provision in the Cr.P.C. for restoration of the appeal. Hence, this petition.

4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor at length and carefully perused the relevant records.

5. It has been strenuously canvassed by Shri B.K. Bhatnagar that the learned Divisional Commissioner has ignored the mandatory provisions of Sections 385 and 386 Cr.P.C. and has committed an illegality in dismissing petitioner's appeal in default. On the other hand he ought to have decided the same on merits even in the absence of the petitioner. For this, he has placed reliance on the case of Bani Singh & others v. State of U.P.1, wherein it has been held that dismissal of appeal simplicitor for non-prosecution is not contemplated in the Cr.P.C.

6. The learned P.P. has opposed this petition and asserted that there is no provision in the Cr. P.C. for restoration of an appeal. He has contended that since the petitioner or his Advocate was not present, the Divisional Commissioner has rightly dismissed the appeal in default and non-prosecution.

7. I have given my anxious consideration to the rival submissions. In the instant case, the appeal filed by the petitioner was fixed for hearing on 14-10-1996. Thus it is abundantly apparent that the learned Divisional Commissioner had not dismissed the petitioner's appeal summarily.

8. The Apex Court in its recent judgment given in Bani Singh's case (supra) has over-ruled the law laid down in Ram Naresh Yadav v. State of Bihar2, and resolving the conflict has held as under:

"It is the duty of the appellant and his lawyer to remain forsent on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Secs. 385-386 of the Code. The law does not enjoin that the Courts shall adjourn the case if both the appellant and his lawyer are present. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. The plain language of Secs. 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. 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 by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and fi