IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.731 of 2008 JAGDISH PASWAN Versus THE STATE OF BIHAR ----------- 4. 23.9.2008 This revision application has been directed against the judgement and order dated 30.8.2007 passed by the Fast Track Court no.1, Muzaffarpur in Criminal Appeal No. 1/90 thereunder the Fast Track Court has confirmed the judgment of conviction and order of sentence dated 31.12.1989 passed by Sri Satish Chandra Sinha, Judicial Magistrate, 1st Class, Muzaffarpur in G.R.Case No.431/89 Tr.No.1015/89. The learned Magistrate has convicted the petitioner under Section 380 of the Indian Penal Code and Sections (25(1-B) and 26(1) of Arms Act and sentenced him to undergo rigorous imprisonment for two years under Section 380 of the Indian Penal Code and rigorous imprisonment for one year under Section 25(1-B) and 26(1) of Arms Act. All sentences were directed to run concurrently. Only submission of learned counsel for the petitioner is that no opportunity was given to the petitioner by the learned appellate court to canvass his argument and the judgment has been passed behind the back of the petitioner. It is further submitted that it is not only violative of principle of natural justice but also against the provision of Section 385(1)(i) of the Code of Criminal Procedure. On the other hand, learned counsel for the State submitted that this petitioner left pairvi since 1997. The court waited for 10 years - 2 - and the petitioner did not turn up and thereafter the court disposed of the appeal on merit on the basis of material available on record. Lower court records have been received. The appeal was filed in the year 1990. The petitioner filed Hajri up to 15.4.1997 but the appeal was not taken up and thereafter he left pairvi. It appears from the lower court records that the court informed the petitioner’s lawyer, Mr.Chandrika Choudhary twice but he did not turn up. Ultimately the appeal was transferred on 1.6.2006 in the court of Fast Track No.1, Muzaffarpur . The learned Fast Track Court by order dated 18.8.2006 gave direction to the office to intimate to the lawyers of both sides but the intimation was not given to the lawyers and the learned Fast Track Court without compliance of its own order heard the appeal and decided the same behind the back of the petitioner. Section 385 provides procedure for hearing appeals. Clause (i) of Sub-Section (1) of Section 385 of the Code of Criminal Procedure lays down the procedure of giving information to the appellant before hearing the appeal. Section 385 runs as follows; “385. Procedure for hearing appeals not dismissed summarily-(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader’ (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant; (iv) If the appeal is under Section377 or section378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. - 3 - (2) The Appellate Court shall then send for the record or the case, if such record is not already available in that Court and hear the parties; Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not except with the leave of the Court urge or be heard in support of any other ground. It appears from the record of the appellate court that no notice was given to the appellant of appellant’s lawyer after transfer though there is such order and appeal was heard and decided in absence of the appellant. Apparently non-compliance of Section 385 (1) (i) of the Code of Criminal Procedure vitiates the impugned judgment. Accordingly, this revision application is allowed and the impugned ordure dated 30.8.2008 is hereby set aside and the case is remitted back to learned Fast Track Court, Muzaffarpur for rehearing the appeal after giving notice to the learned counsel for the appellant and decide the same within a period of two months of receipt/production of a copy of this order. B.Jha (Ghanshyam Prasad)