IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 61 of 2003 Suleman .….…… Revisionist versus State of Uttaranchal ………. Opposite party Mr. Rajendra Singh, Advocate for the Revisionist. Mr. Prabhakar Joshi, Brief Holder for the State JUDGMENT Hon’ble U.C. Dhyani, J.(Oral) 1. Accused-revisionist Suleman son of Shafi was challaned by the Police of P.S. Gagnahar, Roorkee for the offence punishable under section 3/8 of the U.P. Prevention of Cow Slaughter Act, 1955. After conclusion of the trial he was convicted by 1st Additional Civil Judge (S.D.)/Judicial Magistrate, Roorkee on 24.08.1998 for the said offence. He was awarded two years rigorous imprisonment and was also directed to pay a fine of Rs. 1000/-, in default of which he was directed to further undergo one month’s imprisonment. 2. Aggrieved against this order an appeal was preferred by the accused before the learned Sessions Judge, Haridwar. The same was decided by the learned Additional Sessions Judge /3rd F.T.C., Haridwar on 21.04.2003 whereby the said criminal appeal was dismissed and the judgment and 2 order convicting and sentencing the accused-revisionist was maintained. 3. Aggrieved against the said order of Additional Sessions Judge, Haridwar, this criminal revision has been preferred by the accused (revisionist). 4. Heard learned counsel for the accused-revisionist, learned Brief Holder for the State and perused the lower court record. 5. Although learned counsel for the accused-revisionist was ready to argue the revision on merits but before that he preferred to draw the attention of this court towards the provisions of section 385 of the Code of Criminal Procedure, 1973. He has submitted that the impugned judgment and order may be set aside on this ground alone and if this court is not satisfied with the same then he reserves his right to argue the revision on merits. 6. This Court is inclined to accept the contention of learned counsel for the revisionist, in as much as the provisions of section 385 Cr.P.C. have been ignored by the learned Additional Sessions Judge, Haridwar. 7. Section 385 Cr.P.C. is reproduced herein below for ready reference : 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; 3 (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 section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of 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. 8. Section 385 Cr.P.C. thus provides the procedure for hearing the appeal which has not been dismissed summarily. It stipulates that 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 to the appellant or his pleader; to the complainant /D.G.C. (Criminal) and shall also furnish them with a copy of the grounds of appeal. Thus, it is clear that a notice of hearing of the appeal has to be given to the appellant or his pleader. At page no. 2 para no. 5 of the judgment the learned Sessions Judge, Haridwar has mentioned that : “Aggrieved against the aforesaid order the appellant has preferred this appeal. The appellant has not appeared before this court and his learned counsel also not appeared in this case for making submissions ………….” 9. It has not been mentioned in the judgment whether the appellant or his pleader was served with the notice or not, as is prescribed under section 385 (1) (i) Cr.P.C. But a perusal of the order-sheet of criminal appeal no. 50 of 4 1998 of the court of 3rd Additional Sessions Judge /F.T.C. Haridwar reveals that when the appeal was filed the case was being adjourned from time to time at the instance of the appellant. Then the court of 3rd ADJ/FTC fell vacant. Initially the criminal appeal continued to be adjourned on the application of the appellant. Thereafter the court remained without the Presiding Officer. When it was vacant then the appellant did not appear before the court concerned. Then his personal attendance was exempted by the In-Charge Presiding Officer as the court continued to remain vacant for a fairly long time and the dates were given by the In charge, Presiding Officer. On 21.04.2003 the Presiding Officer took up the appeal on merits in the absence of the appellant or his pleader and decided the criminal appeal finally on this date. This court is of the view that proper procedure was not adopted by the learned Presiding Officer in as much as when the court remained vacant for a fairly long time, it was the duty of the Presiding Officer to have given the notice of the case to the appellant or his counsel as per the provisions contained in General Rules (Criminal). Even otherwise the provision of section 385 (1) (i) Cr.P.C. stipulates that a notice of the hearing of the appeal has to be given by the court. That has not been done in this case. If the appellant or his counsel was not present, the first thing was that a notice should have been given to the learned counsel of the appellant or the appellant. On failure of the appearance of the learned counsel for the appellant on the next date, the court should have awaited for the notice to return to the court. If the appellant did not appear in the court on his 5 own and he was served with a notice then there were sufficient means in the armoury of the court to have procured the attendance of the appellant/accused. The court had also an option to appoint amicus curiae and proceed further. Unfortunately that has not been done in this case. Learned Brief Holder representing the State in the Court agrees with this proposition of law. 10. Chapter 10 of General Rules (Criminal) deals with Appeal and Revision. Rules 92 & 93 enjoins upon the appellate court to perform certain duties which includes notice to be given to the appellant. There are also G.L.No. 15/X dated 20th September, 1951 and Circular Letter No. 6th dated 7th March, 1952 to this effect. 11. In view of the above, there is no option but to set aside the impugned order. The criminal revision no 61 of 2003 is thus allowed. The impugned order dated 21.04.2003 passed by 3rd F.T.C./ Additional Sessions Judge, Haridwar is, therefore, set aside with the direction to the court concerned to hear the appellant or his counsel after giving a notice to him and after affording an opportunity of hearing and then proceed to decide the appeal on merits. The file is remitted back to the court concerned for ensuring compliance as above. (U.C. Dhyani, J.) Dt: 25.11.2011 Kaushal 6