S. Acharya, J.
1. This revision is directed against the judgment and order dated 29-3-71 passed by Sri A'. K. Patra, Additional Sessions Judge, Puri in Criminal Appeal No. 2/39 of 1971/70 confirming the judgment and order passed by the Magistrate, First Class, Khandapara, convicting the petitioner under Section 409, IPC and sentencing him thereunder to undergo R. I. for six months and to pay a fine of Rs. 500/-in default to undergo R. I. for one month.
2. The facts of the case need not be stated as they are not relevant in view of the specific question raised by Mr. Rath, the learned Counsel for the petitioner. Mr. Rath, at the outset, urged that neither the petitioner nor the counsel on his behalf had notice of the date and place of hearing of the appeal filed by the petitioner before the Sessions Judge, and as such the judgment passed by the appellate Court, upholding the conviction and sentence of the petitioner without giving him an opportunity to make his submissions, is bad in law and is liable to be set aside.
3. It is seen from the order sheet of the appellate Court that the memorandum of appeal against the trial Court's judgment was filed by the petitioner's advocate at Nayagarh in the court of the Assistant Sessions Judge at Nayagarh. The Sessions Judge at Puri received the records of the appeal on 20-2-70. He admitted the appeal on that day, issued notice to the parties, called for the lower court records of the case and fixed 30-4-70 as the date of hearing of the said appeal. On 30-4-70 the Sessions Judge was absent from the headquarters and the case was adjourned to 7-7-70. On 7-7-70 the appeal was ordered to be heard at Nayagarh circuit on 8-9-70. On 8-9-70 the appellant's advocate at Nayagarh filed his appearance before the Sessions Judge, who was then in circuit at Nayagarh, but the appeal could not be taken up for hearing as he was engaged on that day in the trial of a sessions case. So the Sessions Judge, sitting at Nayagarh, posted the case to 3-10-70, Mr. Patra, the Additional Sessions Judge passed the following order:
As there is no circuit programme the appeal is fixed to 11-12-70 for hearing at Puri.
It is evident from the above order that it was passed at Puri, and the appeal which was to be heard at Nayagarh by the Sessions Judge on circuit, was thus ordered to be heard on 11-12-70 at Puri. On 11-12-70 nobody appeared in that appeal; the Sessions Judge was otherwise busy and accordingly this appeal was again posted to 2-2-71 for hearing. On 2-2-71 nobody appeared for the appellant. The Sessions Judge was also otherwise engaged. Accordingly, the case was again posted to be heard by him on 25-3-71. On 25-3-71 the Sessions Judge transferred this appeal to the file of the Additional Sessions Judge, Puri for disposal in accordance with law. Surprisingly enough the next order (order No. 10) signed by Sri A. K. Patra, Addl. Sessions Judge, is dated 8-2-71, by which he received the said appeal on transfer and ordered the same to be put up on the date fixed. It is quite evident from the said order (dated 8-2-71) that the above-named Additional Sessions Judge did not bother to see the previous order dated 2-2-71 on the same page in the order sheet, by which the appeal was fixed to be heard on 25-3-71, i.e., the day on which it was transferred to his court from the court of the Sessions Judge. The next order, just below the aforesaid order dated 8-2-71, shows that the appeal was taken up for hearing on 25-3-71 in the absence of anybody for the appellant. A reading of the order sheet shows that the above mentioned order No. 10 was written out and signed due to the negligence of the persons concerned. However, on 25-3-71 Shrt Patra, the Additional Sessions Judge, took up this appeal for hearing at Puri, in the absence of the appellant or anybody on his behalf. The Assistant Public Prosecutor was heard on that date, and judgment itt the appeal was delivered on 29-3-71, by which the conviction and the sentence as. passed by the trial Court were confirmed.
4. Mr. Rath urged that the appeal was filed at Nayagarh with a petition to fix the hearing of the appeal at Nayagarh. The appeal was actually fixed for hearing by the Sessions Judge at Nayagarh From the above and because of the order passed by the Sessions Judge at Nayagarh on 8-9-70, the petitioner's lawyer bona fide and justifiably believed that the said appeal would be taken up at Nayagarh when the Sessions. Judge would come there on circuit, and accordingly he was expecting notice or information of the next date of hearing from the Sessions Judge's Court. It is stated on affidavit that neither the petitioner nor his advocate had any information of the fact that the appeal was to be taken up at Purr and that too on 25-3-71 by the Additional Sessions Judge.
5. On a perusal of the orders passed by the appellate Court on and after 8-9-70 till the hearing of the appeal on 25-3-71, it is difficult to arrive at a definite finding that the appellant and/or his lawyer did have notice of the fact, or at least were expected to know, that the appeal, instead of being heard by the Sessions Judge at Nayagarh, was to be heard at Puri by the Additional Sessions Judge. The appeal was. fixed to be heard on 8-9-70 by the Sessions. Judge in his Nayagarh circuit. On that date it could not be taken up for hearing, and the Sessions Judge, sitting at Nayagarh, adjourned the case to 3-10-70 'for fixing a date of hearing to the next circuit'. This; order does not clearly indicate that the next date of hearing of the appeal would be fixed at Puri and not at Nayagarh, where the said order was passed and where the appear was actually fixed for hearing by two previous orders. So it cannot be said that the appellant and/or his counsel knew or were expected to know the order passed at Puri on 3-10-70, and that too by the Additional' Sessions Judge, to whose court the appeal had not been transferred by that date. The counsel for the State is unable to show anything from record that the order passed on' 3-10-70 and/or any of the orders passed' thereafter and specially the one dated 25-3' 71 by which the appeal was transferred'; from the court of the Sessions Judge to the court of the Additional Sessions Judge, wa& or were intimated to the appellant or his lawyer or that they were expected to know the same.
6. Under the provisions of Sections 422 and 423, Cr.PC the appellant or his lawyer has to be given proper notice of the time and place of the hearing of the appeal, and in case any one of them appears on the date of hearing, he has to be given an opportunity of being heard. Only thereafter the court can proceed to deliver its reasoned judgment in accordance with law. The above provisions in Sections 422 and 423, Cr.PC are wholesome and provide a valuable right to the appellant. Therefore, the courts, before disposing of an appeal in the absence of the appellant or his lawyer, should carefully examine the record in order to ascertain if the appellant or his lawyer had or was expected to have proper notice of the date and place of the hearing of the appeal.
7. On reading the several orders in the order sheet together with the above mentioned uncontroverted statement on affidavit and on hearing the counsel of both the parties, I am inclined to believe that the appellant or his lawyer did not have notice or information of the fact that the appeal was to be taken up for hearing at Puri, and that too by the Additional Sessions Judge on 25-3-71. Thus it cannot be said that the appellant, the petitioner herein had a reasonable opportunity of being heard by the appellate Court.
8. The petitioner has been sentenced to undergo a substantive sentence of imprisonment besides payment of fine of Rs. 500/-. It has been urged by Mr. Rath for the petitioner that the Additional Sessions Judge in disposing of this appeal without hearing anybody on behalf of the appellant, has not bestowed any consideration on various important and significant features of the case and has not discussed the oral and documentary evidence on record in the proper perspective, as a result of which he has arrived at an incorrect and illegal finding. The above comment of Mr. Rath cannot be said to be wholly incorrect.
9. On the above considerations I feel that this is a fit case which should go back on remand to the appellate Court for a fresh and proper hearing of the appeal on merits, on notice to both the parties.
10. In the result, therefore, the judgment and order passed by the court of appeal are hereby set aside, and the said appeal is restored and remanded to the Sessions Judge at Puri for disposal in accordance with law and the above directions. It is left to the Sessions Judge either to hear this appeal himself, or to transfer the same for hearing to any other proper court. In any case the hearing of the case should be expedited.
11. The revision is allowed in the terms aforesaid.
The lower court records be sent back immediately.