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Appellate Court Can’t Dismiss Appeal Without Considering It On Merits

The Nagpur bench of the Bombay High Court has held that an appellate court cannot dismiss an appeal exercising its jurisdiction under Section 386, unless the matter has been decided on merits.
Justice SB Shukre allowed a writ petition challenging a sessions court order dated June 28, 2016, wherein an appeal was dismissed on default for failure to deposit paper book charges.

At the very outset, the court laid out the settled law in terms of the position of a criminal not being the same as in the case of a civil appeal governed by the Civil Procedure Code.

It was held by the Supreme Court in Kishan Singh vs State of Uttar Pradesh that the “criminal procedure requires in express terms, the matter to be considered on merit and therefore, a criminal cannot be non-suited for non-prosecution”.

Although GR Kothari, counsel for one of the respondents, cited another apex court order wherein an appeal was dismissed due to failure on part of the appellant or his counsel, the high court found that the said dismissal came in exercise of the apex court’s powers under Article 136 of the Constitution, not Section 386 of the Criminal Procedure Code.

Justice Shukre finally observed: “If the paper book charges were not deposited in the instant case by the appellant, the appellate court was obliged to peruse the record of the case and consider arguments of both sides provided they were submitted and decide the appeal on merits of the case. At the most, the appellate court could have cancelled the bail granted to the appellant, but not dismissed the appeal in default if paper book charges were not paid. This has not been done by the Additional Sessions
Judge in the instant case. Hence, the impugned order being illegal, cannot be sustained in the eyes of the law.”

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