IMPORTANT POINT
A criminal appeal once admitted cannot be dismissed for non-prosecution without a merits examination, ensuring fair legal representation.

JUDGMENT :

(Ravindra Maithani, J.) :

The challenge in this revision is made to the order dated 09.02.2023, passed in Criminal Appeal No. 221 of 2021, Satish Kumar Vs. State of Uttarakhand and others, by the court of 3rd Additional District Judge, Udham Singh Nagar (“the appeal”). By it, the appeal has been dismissed in non prosecution.

2. Heard learned counsel for the parties and perused the record.

3. Notices have earlier been served on private respondents, but they are not represented.

4. Learned counsel for the revisionist would submit that the appeal once admitted cannot be dismissed in non prosecution. He would submit that the appeal was admitted on 29.10.2021. The order sheet has been referred to. In support of his contention, he has placed reliance on the principles of law, as laid down in the case of Madan Lal Kapoor Vs. Rajiv Thapar and others, (2007) 7SCC 623.

5. In the case of Madan Lal Kapoor (supra), the Hon’ble Supreme Court while relying on the principles of law, as laid down in the case of Bani Singh Vs. State of UP, (1996) 4 SCC 720 has held that “a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel is present, the court should decide the appeal on merits. If the appellant is in jail the court can appoint a lawyer at State expense to assist it.”

6. Learned State counsel would submit that a criminal appeal once admitted cannot be dismissed in non prosecution.

7. In fact, the issued has been interpreted by the Hon’ble Supreme Court on multiple occasions. In the case of K.S. Panduranga Vs. State of Karnataka, (2013) 3 SCC 721, the Hon’ble Supreme Court culled out the principles, laid down in the case of Bani Singh (supra) and in para 19 observed as follows:-

“19. From the aforesaid decision in Bani Singh [(1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439] , the principles that can be culled out are:

19.1. That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2. That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;

19.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court;

19.5. That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.”

8. In the instant matter, the appeal had already been admitted on 29.10.2021. Thereafter, it was dismissed in non prosecution on 09.02.2023. The impugned order is definitely not in accordance with law. Therefore, while setting aside the impugned order, the revision deserves to be allowed.

9. The revision is allowed.

10. The impugned order is set aside.

11. The matter is remanded back to the appellate court to decide the appeal afresh, in accordance with law, after affording an opportunity of hearing to the parties.