IMPORTANT POINTS
There is no sufficient ground for interfering, dismiss the appeal or may reverse the finding and sentence as provided under Section 386(b) of the Cr.P.C. Thus, the plain language of Section 385 and Section 386 of the Cr.P.C. does not contemplate dismissal of an appeal for default or for non-prosecution. Needless to say that Sections 385 and 386 of the Cr.P.C. envisage the disposal of the appeal only on merits after perusal and scrutiny of the records.

ORDER :

The revision petitioner is the sole accused in C.C.No.404/2002 on the file of the court of the Chief Judicial Magistrate, Pathanamthitta and the appellant in Crl.Appeal No.409/2003 on the file of the Sessions Judge, Pathanamthitta. The revision petitioner was convicted by the learned Magistrate under Section 326 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for thirty days more. The fine amount, if recovered, was directed to be paid as compensation to the de facto complainant (PW2) under Section 357(1) of the Code of Criminal Procedure.

2. On 22.2.2005, the learned Sessions Judge made over the appeal to the Additional Sessions Court (Ad hoc) Fast Track-II, Pathanamthitta for hearing and disposal. On 29.04.2005, the appeal stood listed for hearing before the learned Additional Sessions Judge. The learned counsel for the appellant prayed for one month's time to argue the appeal. The learned Additional Sessions Judge allowed the prayer and adjourned the case as last chance to 30.6.2005. However, the associate counsel of the learned counsel for the appellant prayed time for hearing and hence the learned Additional Sessions Judge proceeded to hear the learned Public Prosecutor alone and then dismissed the appeal on merits. Feeling aggrieved, the revision petitioner has, therefore, come up before this Court in revision.

3. The prosecution case, in brief, is that on 06.07.2002 at 9.30 pm., the accused with an intention of causing hurt to PW2, beat PW2 on his left cheek with a piece of firewood causing fracture of bone on the left side of his left eye on Kannankara-Valanchuzhi Road near the shop of one Basheer at Kannankara and thereby committed the offence punishable under Section 326 of the Indian Penal Code.

4. The question arising for consideration before this Court is as to whether there was miscarriage of justice on the facts and in the circumstances of the case, as the learned Additional Sessions Judge proceeded to decide the appeal unaided by the arguments of an Advocate at least by appointing State Brief, Amicus Curiae or a legal aid counsel appointed by the legal services authority to assist the court.

5. Pursuant to the receipt of summons from the trial court, the revision petitioner appeared through his counsel and pleaded not guilty of the charge thus levelled against him by the prosecution. In the trial that followed, PWs.1 to 7 were examined and Exts.P1 to P5 were marked on the side of the prosecution. No evidence was adduced on the side of the defence.

6. At the conclusion of the trial, the learned Chief Judicial Magistrate found the petitioner guilty of the offence under Section 326 of the IPC mainly relied on the oral evidence of PWs.2, 3 and 4. PW6 the Assistant Surgeon, Govt. Hospital, Pathanamthitta examined PW2 immediately after the occurrence on 06.07.2002 at 9.30 pm and issued Ext.P2 wound certificate noting fracture lateral bone of orbit on X-ray examination. The trial court convicted the revision petitioner on the strength of some of the eye witnesses.

7. Heard Sri.S.Subhash Chand, the learned counsel for the revision petitioner and Sri.M.S.Breez, learned Senior Public Prosecutor for the State.

8. The plain language of Section 385 of the Cr.P.C. makes it clear that, if the appellate court does not dismiss the appeal summarily, it must call for the records from the trial court. That apart, Section 386 of the Cr.P.C. mandates that after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may reverse the finding and sentence as provided under Section 386(b) of the Cr.P.C. Thus, the plain language of Section 385 and Section 386 of the Cr.P.C. does not contemplate dismissal of an appeal for default or for