IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REVISION No.661 of 2008 MANTU YADAV Versus THE STATE OF BIHAR ----------- 4. 18.07.2008. Heard learned counsel for the petitioner and the State. 2. Delay of 55 days in filing this Cr. Revision application is condoned for the reasons indicated in Interlocutory Application No. 1339 of 2008 filed under Section 5 of the Limitation Act. The aforesaid Interlocutory Application is, accordingly, disposed of and this Cr. Revision application is taken up for admission. 3. Petitioner was convicted by Sri Ashok Kumar, Judicial Magistrate, 1st Class, Sheikhpura under judgment dated 24.5.2004 passed in G.R.Case No. 826 of 1998, Tr.No. 186 of 2004 for the offences under Sections 25(1-B) A and 26(1) of the Arms Act and was directed to undergo rigorous imprisonment for two years as also to pay a fine of Rs. 1,000/- each under both the counts against which he filed Cr. Appeal No. 77 of 2004 which was taken up for hearing before Sri D.K. Sinha, Additional District Judge, Fast Track Court No.-II, Munger on 6.2.2008 and as the appellant and his counsel were absent the said appeal was dismissed for default under order dated 06.02.2008. 4. Present Cr. Revision application has been filed assailing the judgment of the trial court as also of the order of the appellate court on the ground that the court below while dismissing the appeal for default under orders dated 6.2.2008 acted without jurisdiction in terms of the provisions contained in Sub-Clause (2) of Sections 374 - 2 - and 386 of the Code of Criminal Procedure which provides for the powers of the appellate court and it is submitted with reference to Sub-Clause (b) of Section 386 of the Code of Criminal Procedure that the appellate court does not have the power to dismiss the appeal in default. With reference to the judgment of the Hon’ble Supreme Court in the case of Ram Naresh Yadav and others Vs. State of Bihar, reported in AIR 1987 Supreme Court 1500 it is submitted that if the appellant and his counsel were not present to press the appeal on 6.2.2008 then it was incumbent upon the appellate court to have appointed an amicus curiae to assist it in disposal of the appeal but in no case appeal could have been dismissed for default. 5. Having heard counsel for the parties, in view of the provisions contained in Sub-Clause (b) of Section 386 of the Code of Criminal Procedure, I am of the view that the court below committed an error of jurisdiction when it passed order dated 6.02.2008 dismissing Cr. Appeal No. 77 of 2004 for default. Accordingly, the order dated 6.2.2008 passed by the A.D.J., F.T.C.-II, Munger in Cr. Appeal No. 77 of 2004 is set aside and the matter is remitted to the appellate court (A.D.J., F.T.C.-II, Munger) for disposal in accordance with law after admitting the petitioner, namely, Mantu Yadav to the privilege of bail on furnishing bail bond of Rs. 5000/- (Five thousand) with two sureties of the like amount each to the satisfaction of Sri Ashok Kumar, Judicial Magistrate, 1st Class, Sheikhpura in connection with G.R.No. 826 of 1998, Tr.No. 186 of 2004 so that he is in a position to make arrangement for his counsel. While admitting - 3 - the petitioner to the privilege of bail court below shall fix the date of hearing of the appeal on which date the appellant and his counsel must remain in attendance and the appeal be heard on merits on that date and if the petitioner does not cooperate in disposal of the appeal then his bail bonds be cancelled and he be again taken in custody. 6. This Cr. Revision application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)