HIGH COURT OFCHHAT-TISGARH AT BILASPUR S3. : HON’BLE SHRI JUSTICE VIJAY KUMAR SHRIVASTAVA CRIMINAL REVISION NO. 105 OF 2007 APPLICANT Tribhuvan, sfo. Ramkeshwar Singh Khairwar, aged about 22 years, r/o‘ village Chiniya; P‘s Ramanujgan}, Dist. Surguja, CG ~ Verus NON-APPLICANT \State of Chhattisgarh, through SHO, P‘S. Ramanujganj, Dist. Surguja, CG. PRESENT: Shri A‘K‘ Prasad, counse! forthe applicant. Shri PK, Verma, Addl. Public Presecutorwith Shri Satish Gupta, Dy. Govt. Advocate for non—applicant! State ORAL ORDER (Passed on 22"“ March, 2007) Lg: Heard on M(Cri)P.No.492/2007 and perused the record of Criminal Appeal Nd. 62/99 and Criminal Case Nc_329/95. 2) Learned counsel for the State did not oppose M.(Cri)PrNo.492/2007 stating that the appellate Court did not consider that the applicant was absconding and without hearing the applicant learned appellate Court has passed the judgment. 3) Having considered the reasons assigned by the applicantfor condonation of delay in filing the revision duly porroborated with an affidavit, and no'objection of the State, M(Cr) P‘No. 492/2007 is allowed and delay in filing the revision is condoned. 4) Having seen the iuegaiity bommitted by tower appeliate Court from the face of the record'and aiso the oral prayer of both the parties to hear r the revision finally and to dispose it of at this stage, the matter is heard finally. ‘5) Judicial Magistrate First Class, Ramanujganj, vide judgment of conviction and order of sentence dated 29-5-99 passed in Criminal Case ‘ No.329/95, convicted appellant and other co-aocused persons namely Mangan, Ramlal, Vijay for committing offence punishable under Sections 457 and 380 of the IPC and sentenced each one of them to undergo Rl for one year and to pay a fine of Rs.500/—, in default of payment of tine‘ to further undergo imprisonment for three months on each count Feeling aggrieved, applicant and other convicted accused Mangal, Ramlal and Vijiay challenged the legality of conviction and sentence in Criminal Appeal No. 62/99. 6) The appeliate Court vide order dated 4—6-99 suspended the custodiai sentence and passed an order to release the applicant and other convicted appellants. ‘lt appears that the applicant and other convicted appellants were released on bail after furnishing bait bonds. On 27-7—1 999 the appeal was admitted tor final hearing, Subsequentty, applicant remained absent and till the judgment passed by the appellate Court, he did not appear. During pendency of the appeat, applicant was declared absconding and in appellate judgment aisc in cause title an (entry showing absconding has been made and judgment was passed. Judgment was passed on 23-10—2003. Feeling aggrieved, the instant revision against the appellate judgment was tiled on 26~2~2007. 7) Sections 380, 385 & 386 of the Cr.P.C. read as below: “380- Special right of appeal in certain cases.- Notwithstandihg anything contained in this Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order hasAbeen passed in respect ' @ (iii) with or without altering the finding, aiterthe nature or the extent, or the nature and extent, ofthe sentence, but not so as to enhance the same; (c) in an appeat for enhancement of sentence- reverse the finding and sentence and acquit or, discharge the accused or order him to be re—tried by a Court competent to trythe offence, or (ii) (i) alter the finding ¥n1aintaining the sentence, or (iii) with or without altering the finding, atterthe nature or the extent, or the nature and extent of the sentence, . so as to enhance or reduce the same; (d) in an appeai from any other order, alter or reverse such ordert (e) make any amendment or any consequentiai or incidentai order that may be just or proper. Provided that the sentence shalt not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appetlate Court shatl not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” From bare reading of the above provision, it is evident that the applicant had independent as well as common right to challenge the legality of conviction and sentence passed by the trial Court and he availed it by tiling an appeal along with other convicted persons. He remained absent during hearing as well during frnai hearing of the appeal and without hearing the applicant, appellate judgment was passed against himi ln accordance with Section 386 ofthe Cr.P.C., the appellate Court has no jurisdiction to pass judgment without hearing the appellant or his pleader. 8) From the record of appellate Court, it is evident that applicant remained absent from 20—9-99 tiil disposal of the appeat On 23-1 0-2003 appellate Court heard the parties. On that day, whenAhearing took place, applicant was ghown absconding and 0n the same day, judgment was passed and again in order sheet appiicant was shown absconding. Even in appellate judgment in cause title, a noting has been made. showing applicant absconding. 9) in View of the above, the judgment passed by the appellate Court dated 23-10-2003 sustaining the judgment‘of conviction and order of sentence passed by the trial Court do not bind the applicant and the applicant has a right of hearing. Therefore, lower appellate Court is directed to hear the appeal of the applicant after affording him proper opportunity of hearing and dispose of his appeal by passing an appropriate order. He shall dispose of the appeal preferably within a month from the date of receipt of copy of this order and record of both the Courts below, 10) Registry is directed to send forthwith a copy of this order along ,L 11) The revision stands disposed oft l Vijay Kumar Shrivastav with the record of both the courts below. l - Sd/- a Judge fi Hr ’ Raju