The main legal point established in the judgment is that a criminal appeal can be decided on merits only after hearing the appellant or their counsel. The High Court has the inherent power to dismiss an appeal for default and restore it on sufficient grounds being shown.

When the appeal came up for hearing on 1-2-1995, counsel for the appellant as well as appellant were absent. There was no representation also. The appeal was therefore adjourned to 3-2-1995 to consider whether the appeal can be dismissed for default. On this point arguments were heard. Notice was given to Director General of Prosecutions.

2. Heard Director General of Prosecutions and Senior Advocates Sri M. N. Sukumaran Nayar and Sri. T. R. Raman Pillai and Senior Counsel Sri. T. V. Prabhakaran, apart from other counsel who had also contributed their views on this aspect.

3. The Director General of Prosecutions and all the counsel who expressed views in the matter are unanimously of the view that a criminal appeal cannot be dismissed for default. The powers of the appellate Court to hear appeals are contained in Chapter XXIX of the Code of Criminal Procedure. In this proceeding we are mainly concerned with Sections 384, 385 and 386. Sec. 384 empowers the Court to dismiss the appeal summarily if upon examining the petition of appeal and copy of the judgment received, the appellate Court considers that there is no sufficient ground for interfering. The restrictions imposed by the Section are that no appeal presented under Sec. 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same and no appeal presented under Sec. 383 (appeal presented by an appellant in jail) shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case. No appeal presented under Sec. 383, shall be dismissed summarily until the period allowed for preferring such appeal has expired. It is also provided that the Court may call for the record of the case before dismissing an appeal. The reasons for dismissal under the Section are to be recorded by a Court of Session or a Chief Judicial Magistrate when an appeal is dismissed under Sec. 384. In case an appeal is not dismissed summarily under Sec. 384 of the Code notice shall be given regarding the time and place at which the appeal will be heard. Such notice has to be given to the appellant or his pleader and to such officer as the State Government may appoint in this behalf. If the appeals is from a judgment of conviction in a case instituted upon complaint notice has to go to the complainant. It is thereafter that the appeal is heard under Sec. 386 of the Code. The Section provides that the appellate Court may dismiss an appeal if it considers that there is no sufficient ground for interfering. But this can be done after perusing such record and hearing the appellant or his pleader, if he appears, and Public Prosecutor if he appears, and in case of an appeal under Sec. 377, or Sec. 378 after hearing the accused, if he appears. The other powers conferred on appellate Court by the Section are not relevant for the purpose of considering the question formulated in this appeal.

4. It is pointed out that the appellate Court has a duty to peruse the records and decide the appeal either by dismissing it finding that there is no ground for interference or reversing the finding and sentence and acquitting the accused or ordering re-trial or reversing the order of acquittal and directing further enquiry or retrial or altering the finding maintaining the sentence or with or without altering the finding after the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. Regarding enhancement of sentence provision is made in sub-clause (c) of Sec. 386. The contention is that the perusal of the record is one of the essential elements for the hearing of an appeal and appellate Court cannot refuse to do so.

5. Attention is dra