An appeal cannot be dismissed for default and must be considered on merits, and the judgment in Shyam Deo v. State of Bihar has binding weight over passing observations in subsequent cases.

1. The ticklish question raised by Sri. E.V. Nayanar, counsel for the petitioners is this: Can a criminal appeal (which is otherwise ripe for hearing) be dismissed for default or for non-prosecution? In Ram Naresh Yadav v. State of Bihar (AIR 1987 S.C.1500). Thakkar and Natarajan, JJ. have observed that "the court can dismiss the appeal for non-prosecution and enforce discipline". According to Sri. E.V.Nayanar, the aforesaid observation of the Supreme Court has no binding force since the law on that topic was

authoritatively pronounced by the Supreme Court in Shyam Deo v. State of Bihar (AIR 1971 S.C.1606) which has not been over ruled yet and which holds the sway till now.

2. Petitioners, eight in number, were convicted for the offence under S.55(a) of the Abkari Act and each of them was sentenced to undergo imprisonment for six months and to pay a fine of rupees one thousand by a Judicial Magistrate of Second Class. They jointly filed an appeal before the Sessions Court which was made over to the Chief Judicial Magistrate's Court. The Chief Judicial Magistrate dismissed the appeal for non-prosecution, since the counsel for the appellants reported no instructions. Learned Chief Judicial Magistrate relied on the observation in Ram Naresh Yadav's case to support the course adopted by him. Though the aggrieved petitioners filed a revision before the Sessions Court, the only point considered by the Sessions Judge was whether the Chief Judicial Magistrate was right in dismissing the appeal for non-prosecution. Without adverting to any other point regarding the correctness or legality of the findings which ended in conviction of the petitioners, learned Sessions Judge dismissed the revision holding that the appeal was rightly dismissed in view of the observation in Ram Naresh Yadav's case. Hence the petitioners have come to this Court invoking S.482 of the Code of Criminal Procedure (for short 'the Code').

3. Provisions relating to appeal are set in Chapter XXIX of the Code. S.374 of the Code enables a person convicted on a trial to file the appeal and as per sub-section (3) such person can appeal to the Court of Session, if he is convicted by a Magistrate of the first class or second class. S.381(1) provides that an appeal filed against conviction on a trial held by a Magistrate of second class may be heard by the Assistant Sessions Judge or the Chief Judicial Magistrate. Every appeal is required to be made in the form of a petition in writing which shall be accompanied by a copy of the impugned judgment or order. S.384 gives power to the appellate court to dismiss the appeal summarily when the appellate court considers that there is no sufficient ground for interference. But no such appeal shall be dismissed summarily without "examining the petition of appeal and the copy of the impugned judgment and without affording the appellant or his pleader a reasonable opportunity of being heard in support of the appeal". Another condition to be complied with by the appellate court which dismisses the appeal summarily is that "it shall record its reasons for doing so". If the appeal is not dismissed summarily, the appellate court has to follow the steps mentioned in S.385. The appellate court has to send for the records of the case and hear the parties. S.386 enjoins on the appellate court a duty to peruse the records and hear the appellant or his pleader "if he appears" and the Public Prosecutor "if he appears". The court can dismiss the appeal after perusing the records only "if it considers that there is no sufficient ground for interfering". S.387 says that the Rules as to judgment of a criminal court of original jurisdiction shall apply to the judgment in appeal delivered by the Court of Session or Chief Judicial Magistrate (this rule is evidently not applicable to judgments pronounced by the High Court). S.354 of the Code contains the important rules of judgment. Every judgment "shall contain the point or points for determin