Chandan Singh vs State of M. P. - 1990 Supreme(MP) 616

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : Akhil Shrivastava
For the Non-Applicant :C.S. Dixit, Deputy Government Advocate

Headnote:Criminal P.C, 1973 – – – S. 449, 385 and 386 – – – appeal under S. 449 – – – would be heard according to the procedure prescribed under sections 385 and 386 – – – such appeal cannot be dismissed in default of appearance.
        Short Note
       1. The petitioner had stood as surety for an accused in a criminal case. His bond was ordered to be forfeited for default in appearance of the accused. The petitioner had preferred an appeal under section 449 Cr.PC. On 26.7.86 none appeared for the petitioner and hence the appeal was directed to be dismissed in default of appearance.
       Held : The only submission made by the learned counsel for the petitioner is that the criminal appeal should not have been dismissed in default of appearance and the appellate Court was bound to apply its mind to the facts of the case and adjudicated upon its merits. There is substance in the submission. No procedure is prescribed for hearing an appeal under section 449 Cr.PC. Hence the same procedure would be applicable as would apply to a criminal appeal under Chapter XXIX of the Code of Criminal Procedure. That Chapter does not make any provision for dismissing a criminal appeal in default of appearance of the appellant nor does provide for its restoration where an appeal has not been summarily dismissed, sections 385 and 386 of the Code contemplate adjudication of an appeal on merits only. Dismissal in default of appearance of appellant and his counsel without applying mind to the merits of the appeal is bad and unsustainable in law. [See Dashrathlal v. State (1957 JLJ 451); Ratanchand v. Emperor (1909 Vol. IX CrLJ (Nag.) 553); and Krishnamurthy v. State" of Mysore (1965 (2) CrLJ 568)].
       2. The revision is allowed. The impugned order dated 26.7.86 is set aside. The appeal is directed to be restored" to file. The appellate Court shall hear and dispose of the appeal in accordance with law. 1957 JLJ 451, 1909 CrLJ (Nag.) 553 and 1965(2) CrLJ 568 relied on. Revision allowed.