IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39008 of 2006 BISUNADEO SAH, son of late Ram Swaroop Sah, resident of village Rosara, Police Station Rosara, District Samastipur. Versus 1.STATE OF BIHAR 2.Manoj Jain S/o Devendra Kr. Jain, Partner of the firm M/S Mohan Lal Lakshmi Chand Jain, Resident of village Damodarpur, P.S. Kanti, District Muzaffaqrpur. ----------- 8 16-02-2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this application is to quash the impugned order dated 4.4.2006, whereby and whereunder, Criminal Appeal No. 63 of 2006 preferred by him against the judgment and order of conviction and sentence for the offence under section 406 of the Indian Penal Code has been dismissed by way of default, i.e, for non compliance of the order by the petitioner in filing the requisites for sending notices to the opposite parties. Counsel for the petitioner has pointed out that under the scheme of code of criminal procedure an appeal has to be disposed of either by way of summary dismissal in terms of section 384 of the code or on merits inn terms of section386 of the Code. He would submit that there is nothing in the Code of Criminal Procedure which would enable the appellate court to dismiss an appeal, arising out of conviction even in a complaint case, only due to default including non compliance of any order. 2 Mr. Jharkhandi Upadhayay, learned counsel for the State is not in a position to support the impugned order, inasmuch as, he would find no provision in the code of criminal procedure where appeal arising out of conviction can be dismissed on the ground of non compliance of order of the Court with regard to filing of requisites for sending notices to the opposite parties. In this context Chapter-XXIX of the code of criminal procedure dealing with the appeals from sections 372 to section 394 of the Code do not in any way envisage dismissal of an appeal other than by way of summary dismissal or on merits in terms of sections 384 and section 386 of the Cr.P.C. respectively. The summary dismissal of an appeal again has been sought to be explained in sections 383 and 384 of the Code that the appellate court on the merit would consider that there is no sufficient ground for interference and therefore also the appellant-accused has to be heard. Thus even in an appeal by way of summary dismissal cannot be made only due to default of accused either in person or through his counsel as was held in the case of “Kishan Singh Vs. State of U.P.” reported in 1996 (9) S.C.C 372. Such being the mandate of law, when the appellate court has again been vested with power only to decide the appeal on merits as envisaged under section 386 of the code, it must be held that merely because the accused-appellant in a complaint case could not comply the order of the court by giving copies of memo of appeal for service of notice in terms of section 385 (1) (iii) of 3 the Code, he could not have exposed himself to the consequence of dismissal of the appeal. There is no such mandate of legislature even under section 385 (1) (iii) of the Code. Consequently, the impugned order dismissing the appeal of the petitioner dated 18.1.2006 as also the impugned order dated 4.4.2006 refusing prayer of the petitioner to recall the order dated 18.1.2006 is hereby set aside and the appellate court, the Court of 5th Additional Sessions Judge, Muzaffarpur, is directed to dispose of Criminal Appeal No. 63 of 2000 on merits. Counsel for the petitioner, however, undertakes that he will comply the order requiring requisites for notice within a period of fifteen days from the date of receipt of the order by the court below. It is however made clear that within the period of aforesaid fifteen days from the date of receipt of a copy of this order the appellant shall not be subjected to any coercive measure for serving sentence. In view of the fact that the appeal is of the year 2000 and is ten years old, the court below will make all its endeavor to conclude hearing of appeal and delivering of judgment within a period of nine months from the date of receipt/production of a copy of this order. The application is accordingly allowed with the aforementioned observations/directions. Abhay Kumar ( Mihir Kumar Jha, J.)