Criminal Appeal Cannot Be Dismissed For Default Without Examining Merits: Madras HC
|The Madras High Court set aside an order by which the Criminal Appeal was dismissed for default.
The Court was hearing a Criminal Revision which was directed against the order passed in Criminal Appeal that dismissed the appeal for default.
The bench of Justice K Murali Shankar observed, “…Court has no hesitation to hold that the dismissal of the Criminal Appeal for default, cannot legally be sustained and as such, the same is liable to be set aside.”
Advocate R Karunanithi appeared for the Appellant and Advocate R Anand appeared for the Respondent.
Brief Facts-
The Respondent filed a private complaint under Section 200 Cr.P.C. against the Appellant for an offence under Section 138 of the Negotiable Instruments Act. After a full trial, the Judicial Magistrate convicted the Appellant and sentenced him to six months of simple imprisonment and ordered him to pay Rs.10L as compensation to the complainant. The Appellant's appeal was dismissed for default due to the Appellant's non-representation. Hence, the present Criminal Revision Case is challenging dismissal.
The Court mentioned the full bench decision of the Supreme Court in Bani Singh & Ors vs State Of U.P and quoted, “The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor….The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record.”
The Court further relied on the decision of the Supreme Court in K.S.Panduranga vs State Of Karnataka and quoted, “that the High Court cannot dismiss an appeal for non- prosecution simpliciter without examining the merits…”
Accordingly, the Court directed the first Appellate Court to restore the Appeal.
Finally, the Court disposed of the Criminal Revision.
Cause Title: P Sethu v. R.Selvakumaran