An appeal against acquittal cannot be dismissed for default simpliciter, without examining the case on merits.

ASHIM KUMAR ROY, J.

On a complaint in writing made to the Court by the petitioner PCS Industries Limited alleging commission of offences punishable under Sections 420/406/418/506/120B of the Indian Penal Code, a case being Complaint Case No. C-4350/2004 was registered. While the aforesaid case was pending for trial before the learned Metropolitan Magistrate, 3rd Court, Calcutta, on June 16, 2009 the complainant was absent in Court without taking any steps and the learned Magistrate dismissed the complaint under Section 256 of the Code of Criminal Procedure.

The petitioner being aggrieved by such order preferred an appeal before the City Sessions Court, Calcutta being Criminal Appeal No. 62 of 2009. Such appeal was filed along with an application for condonation of delay under Section 5 of the Limitation Act. However, on the date fixed for hearing, since nobody appeared on behalf of the petitioner to press such application, the learned Chief Judge, City Sessions Court, Calcutta, dismissed the application for condonation of delay and the appeal. The petitioner in the instant criminal revision challenged the said order of dismissal before this Court.

2. At the time of hearing of the said criminal revision before a Single Bench, it was urged on behalf of the petitioner that dismissal of a criminal appeal on default, without examining the merit of the case is illegal and without jurisdiction and in support of his argument the learned Counsel of the petitioner relied on a decision of a co-ordinate Bench of this Court in the case of Samir Purkait @ Samir Kumar Purkait Vs. The State of West Bengal & Anr., reported in (2009) 1 Cr. L.R. 829 (Cal). However the learned Single Judge observing as follows referred the matter for a decision by a larger Bench. “The factual matrix involved in the case of Samir Purkait (supra) and the one before me stand on different footing. In the case of Samir Purkait (supra) it was a conviction on merit. The convict was within his right to prefer an appeal before the Higher Court, which he did belatedly. His application for condonation was dismissed for default. There was no adjudication on merit. Hence, he preferred the second one. In the case in hand, the application in a complaint case initiated under Section 200 was dismissed as the complainant failed to proceed as he was absent on repeated occasions. He was not ordinarily entitled to prefer appeal and his status, as an appellant could not be compared with the one as in the case of Samir Purkait (supra). His Lordship, in the case of Samir Purkait (supra), advanced an analogy that it would affect the personal liberty in case of dismissal of the appeal. I fully agree with His Lordship in a case of conviction. However, a lackadaisical approach of a complainant would not deserve adjudication of the controversy in his absence. In a complaint case, the complainant has to produce evidence before the Court in support of his complaint. If he is absent, there is no one to proceed with. In my view, the decision in the case of Samir Purkait (supra) could not be applied as an abstract proposition of law in all cases where the appellant files an appeal or a belated appeal along with an application for condonation, as the case may be, and then disappears from the scene. Since it was a case of conviction learned Judge was perhaps right. However, in case of acquittal, such proposition of law, in my view, cannot be applied. Since I am not ad idem on the proposition of law per se I feel that instead of bypassing the issue, let the issue be decided by a Larger Bench once for all that would be a guiding factor for future.”

3. The question of law formulated in the said order of reference for our decisions are as follows;

(i) Is the proposition of law decided in the case of Samir Purkait (supra) be also pplicable in a case where an appeal is filed either against the order of acquittal or against the order of discharge?

(ii) If so, under what circumstance?

4. We