ORDER :

PRAYER: Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C., to call for the records relating to the Judgment dated 28.10.2022 made in Crl.A.No.112 of 2018 on the file of the 3rd Additional District Judge, Thanjavur @ Pattukkottai, by confirming the conviction made in C.C.No.470 of 2007 on the file of the Judicial Magistrate, Pattukkottai, Thanjavur District, dated 03.09.218 and set aside the same as illegal.

This Criminal Revision Petition has been filed by the petitioner/accused against the order of dismissal of appeal for default dated 28.10.2022 in Crl.A.No.112 of 2018 by the learned 3rd Additional District Judge, Thanjavur @ Pattukkottai by confirming the conviction made in C.C.No.470 of 2007 on the file of the Judicial Magistrate, Pattukkottai, Thanjavur District, dated 03.09.218.

2.The case of the prosecution is that the petitioner is an accused in C.C.No.470 of 2007 filed by the respondent for the offences under Sections 341, 326 and 506(2) IPC. The trial Court had found the petitioner/accused guilty and convicted him to undergo Rigorous Imprisonment for a period of two years for the offence under Section 326 IPC and to undergo one year Rigorous Imprisonment for the offence under Section 506(2) IPC and to pay a fine of Rs.1000/- for each offence and in default to undergo Simple Imprisonment for a period of two weeks.

3. Against the Judgment of conviction and sentence passed by the trial Court in C.C.No.470 of 2007, the petitioner/accused had filed Crl.A.No.112 of 2018, before the learned 3rd Additional District Judge, Thanjavur @ Pattukottai. The appeal was taken on file admitted and notice was ordered to the respondent/complainant and the matter had been posted on 28.10.2022. The petitioner/accused as well as his Advocate did not appear before the Court and the Appellate Court finding that the criminal appeal is pending from the year 2018 for arguments and that the respondent/complainant was ready for arguments, had dismissed the appeal for non-prosecution. Against the order of dismissal of the appeal, the present revision has been filed.

4. This Court heard the submissions of the learned counsel for the petitioner and perused the materials available on record.

5. It is seen from the order that the criminal appeal has not been decided on merits and the appeal has been dismissed for default. The present revision has been filed against the dismissal of the criminal appeal for default.

6. The learned counsel for the revision petitioner would submit that once a criminal appeal is admitted, it cannot be dismissed for default. Hence, the dismissal of the criminal appeal for default by the Appellate court is wrong and has to be set-aside. He would submit that the plain language of Section 385 of Cr.P.C., makes it clear that the disposal of the criminal appeal can be only on merits, after perusal and scrutiny of the records.

7. The learned counsel would further submit that the Court should not decide a criminal case against the accused even in the absence of his counsel, since an accused in a criminal case should not suffer for the fault of his counsel and in such situation, the Court should appoint another learned counsel as Amicus Curiae to defend the accused.

8. Now the question to be considered is as to whether the dismissal of the appeal for default is correct. In this context, it is apposite to refer and analyse the provisions of Sections 385 and 386 of Cr.P.C., which are extracted hereunder:-

"Sec. 385: Procedure for hearing appeals not dismissed summarily:-

(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given :-

i) to the appellant or his pleader;

ii) to such officer as the State Government may appoint in this behalf;

iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

iv) if the appeal is under Section 377 or Section 378, to the accused and shall