ORDER :

1. Instant Criminal Revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, lays challenge to order dated 22.3.2021, passed by learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, Himachal Pradesh, whereby appeal bearing No. 60 of 2015, having been filed by the petitioner-accused ( hereinafter referred to as the accused), laying therein challenge to judgment of conviction dated 28.5.2015 and order of sentence dated 29.5.2015, passed by Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P. came to be dismissed in default.

2. Mr. B.R. Sharma, learned counsel representing the respondent fairly states that prayer made in the instant petition deserves to be allowed for the reason that criminal appeal having been filed by the accused could not be dismissed by court below in default.

3. By now, it is well settled that appellate court while exercising appellate power is under obligation to decide the appeal on its merit and definitely cannot dismiss the appeal in default. Reliance in this regard is placed upon the judgment rendered by Three Judges Bench of Hon’ble Apex Court in Bani Singh and Others vs. State of U.P. (1996) STPL 7163 SC, wherein it has been held as under:

“9. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing?

10. In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the Old Code (the corresponding provisions are Sections 385-386 of the present Code), this Court in paragraph 19 of the judgment held as under:

The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the Appeal; but that disposal must he after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.”

11. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed.

12. In Ram Naresh Yadav's case, this Court, without making a specific reference to Section 386 or any other provision of the Code and without noticing the ratio of Shyam Deo's case concluded thus:

“It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no