An appeal dismissed for default without statutory sanction is void ab initio, necessitating its restoration by the court.

1. This is an application for recalling of the order dated 12 July, 2019 passed in the instant appeal by a Coordinate Bench dismissing the appeal for default. Since the application was filed after about 877 days from the date of passing of the order dated 12 July, 2019 the appellants / petitioners have taken out an application under S.5 of the Limitation Act being CRAN / 4/2022. Both the applications are taken up for hearing. Before recording the submission made by Mr. Sourav Chatterjee, Learned Advocate for the petitioners, I feel pertinent to mention that the appellants were granted bail on condition to meet the officer - in - Charge of Asansol Police Station (North) once in a month. The said order was relaxed by an order dated 20 August, 2018 permitting the appellants / petitioners to meet the Officer - in - Charge once in two months. The appellants were duly complying with the directions passed by a Coordinate Bench of this Court as condition for bail.

2. Mr. Chatterjee, Learned Counsel for the petitioners takes me to the annexures on perusal of which it is found that even after the order of dismissal of the appeal for default the appellants went on attending the Police Station as a condition for bail since the appellants did not know that their appeal was dismissed for default.

3. It is submitted by Mr. Chatterjee that a criminal appeal cannot be dismissed for default if the accused does not appear through Counsel appointed by him / her the Court is obliged to proceed with the hearing of the case only after appointing an Amicus Curiae. In support of his contention, he refers to a decision of the Hon'ble Supreme Court in K. Muruganandam and Ors. v. State represented by the Deputy Superintendent of Police and Anr. reported in 2021 SCC online SC 690. The aforesaid decision was passed relying upon the decision of the Apex Court in Kabira v. State of Uttar Pradesh reported in 1981 Suppl. SCC 76 : (AIROnline 1980 SC 39) and Md. Sukur Ali v. Sate of Assam reported in (2011) 4 SCC 729 : (AIR 2011 SC 1222).

4. This Court is not unaware of its position that this is also a Coordinate Bench similar to the Bench who passed the th order of dismissal of the appeal for default on 12 July, 2019.

5. However, when an order is passed without any statutory sanction and against the provision of law the order becomes void ab initio and accordingly, it becomes non - est. As against a non - est and void order dismissing an appeal for default this Court is of the view that even no application for recalling of the said order is necessary. The Court is under obligation to restore the appeal and fix it for hearing even on oral mentioning. Similarly when the order is void ab initio and non - est, the order cannot be given effect to. When an order becomes inoperative, limitation does not lie.

6. For the reasons sated above, this Court is of the view that it is the duty of the Court to rectify its wrong without asking for any application from the litigants who come before the Court seeking justice. For the reasons stated above, the instant appeal is restored. Both the applications are disposed of on the basis of the observation made hereinabove.

7. Since the appeal is otherwise ready the matter be fixed under the heading ''Hearing'' in the Combined Monthly List of April, 2022.

8. The sentence passed by the Learned Trial Court be suspended till the disposal of the appeal and the appellants are at liberty to enjoy the order of bail on the same terms and conditions as per order passed by this Court on 20 August, 2018.

9. Lower Court Record be called for in the meantime.
Order accordingly.