IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1510 of 2011 Bhola Yadav son of late Saukhi Yadav R/o village Chhatrapur, P.S. Bind, Dist. Nalanda……Petitioner Versus 1. The State of Bihar 2. Lukho Yadav son of Ganauri Yadav R/o village Indai P.S. Sheikhpura, Dist. Sheikhpura ….opposite parties ------------- 3 16.12.2011 I.A. No. 2496 of 2011 at flag ‘A’ has been filed under section 5 of the Limitation Act for condonation of delay in filing of this revision application. It has been submitted that due to lack of information the petitioner could not know about the result of criminal appeal that the appeal has been dismissed, and warrant of arrest has been issued .The petitioner was arrested. . The petitioner could not file this revision application within time. The appeal has been heard without the petitioner and his counsel as exparte. It appears that sufficient ground has been placed for the condonation of delay. Accordingly the delay in filing the criminal revision application is condoned. I.A. No. 2496 of 2011 stands allowed. This revision application has been filed against the judgment and order dated 19.2.2009 passed by the learned Additional Sessions Judge F.T.C. IIIrd, Sheikhpura in Cri. Appeal No. 33 of 2003 by which the judgment of conviction and sentence dated 31.01.2003 passed by the learned trial court in complaint case no. 13 ( c )/1997, Tr. No. 404 of 2003 has been confirmed and the appeal has been dismissed. The main contention of the learned counsel for the petitioner is that the petiotner has filed Cri. Appeal No. 33 of 2003 2 against the judgment of conviction and sentence dated 31.102.2003 passed by the learned Sub-divisional Judicial magistrate, Sheikhpura in complaint case no. 13( c ) 1997 and he has sentenced the accused. It appears from the impugned order that the learned counsel for the petitioner did not appear in the case as a result the criminal appeal has been decided exparte without hearing the learned counsel and as such the petitioner has been convicted by the impugned order. Mr. Shayam Kumar Singh learned A.P.P. could not controvert the contention of the petitioner while opposing the prayer. After hearing the both the parties and on perusal of the impugned order it appears that the contention of the learned counsel for the petitioner is correct. Cri. Appeal No. 33 of 2003 has been heard exparte and no one has appeared on behalf of the petitioner in the criminal appeal to defend his case. It is settled principle of law that the Cri. Appeal should not be dismissed without hearing the counsel for the appellant. If the counsel for the appellant does not appear, the court is empowered to appoint amicus curiae and thereafter the appeal will be decided. In support of this view a reference may be made to a decision reported in the case of Harjinder Singh Vs State of Punjab (2010) 13 SCC 533. Considering the facts and circumstances the impugned order is set aside and the case is remanded to the appellate court for fresh hearing and the learned appellate court will pass the 3 order after hearing of both the parties. During the pendency of this application. The above named petitioner will be enlarged on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of like amount each to the satisfaction of S.D.J.M, Shekhpura in complaint case No. 13 (C) of 1997. In the result this application is allowed with the aforesaid direction. M.Rahman (Amaresh Kumar Lal, J)