J.M. Sheth, J.
1. This Revision Petition is filed by the original accused against the order passed by the learned City Sessions Judge, Ahmedabad City, in Criminal Appeal No. 52 of 1975, dismissing the appeal filed by the petitioner against the order of conviction and sentence recorded against him by the learned Metropolitan Magistrate, 11th Court, Ahmedabad, dated 10th April, 1975, in Criminal Case No. 1444 of 1974. He has been convicted for an offence punishable under Section 379 of the Indian Penal Code and sentenced to suffer six months rigorous imprisonment and to pay a fine of Rs. 200/- and in default of payment of fine to undergo one months further rigorous imprisonment. The appeal was admitted by the Sessions Court on 29-4-1975 and the impugned order has been passed on 20-8-1975. The order reads:
Neither the appellant nor his advocate present. Mr. G.S. Bhatt, the learned additional public prosecutor for opponent No. 2 state present. Rest absent. Appeal dismissed. Bail to be cancelled. Accused to surrender.
2. Mr. R.G. Chhara, appearing for the petitioner, has contended that this order of dismissal of the appeal is not in compliance with the provisions of Section 386 of the Code of Criminal Procedure, 1973 (which will be hereinafter referred to as the new code), and consequently this order cannot be sustained in law.
[After quoting Sections 384, 385 and 386 of the code of criminal procedure, 1973 and the corresponding provision Sections 421, 422, and 423 of the old code, his lordship further observed:]
3. It is an admitted position that the appeal was not summarily dismissed as contemplated under Section 421 of old code corresponding to which is the provision in the new code with which we are concerned, viz. Section 384. The appeal having not been dismissed summarily as contemplated by Section 384 of the new code, the court has to follow the procedure referred to in Section 385 of the new code. Sub-section (2) of it, which is material for our purposes, reads:
(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.
It is thus evident that after the appeal is once admitted and not summarily dismissed, that procedure has got to be followed. Section 386 of the new code deals with the powers of the appellate court. The wording of that section clearly indicates that a duty is cast upon the appellate court to peruse the record and hear appellant or his pleader, if he appears, and the public prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, thereafter the appellate court, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may use the powers referred to in Clauses (a), (b), (c), etc. It is thus evident that even in case the appellant or his advocate does, not appear, after the appeal is admitted, the appellate court is bound to peruse the record and decide the appeal on merits. This appeal cannot be dismissed for default as in the case of Civil Appeal.
4. Under the old code, similar question arose before the Supreme Court in Shyam Deo Paridey v. The State of Bihar : 1971CriLJ1177 . The Supreme Court had to consider the provisions of Sections 421,422 and 423 of the old code which have been already quoted and which are substantially the same as Sections 384,385 and 386 of the new code. After referring to those provisions, the Supreme Court has made the following instructive observations at page 1611:.we have referred to the above decisions to show that though a summary rejection by an appellate court under Section 421 may not be violative of the section nevertheless when an arguable or substantial question arises for consideration, the appellate court in its order should indicate its views on such point. If the position is as indicated above that even under Section 421, which contemplates dismissal of an appeal summarily, under Section 423, in our opinion, a very rigorous test must be applied to find out whether the appellate court has complied with the provisions contained therein. There is no emphasis on the perusal of the record in Section 421, whereas under Section 423 one of the essential requirement is that the appellate court should peruse the record. There cannot be any controversy that Section 423 applies to cases in which appeals have been presented and admitted. Though Section 423 does not provide any limitation on the power of the appellate court that it is incompetent to dispose of the appeal, if the appellant or his pleader is not present, nevertheless there is a limitation. That limitation, which is provided by the section is that the appellate court, before disposing of the appeal, must peruse the record. No doubt if the appellant or his pleader is present, he must be heard. Similarly if the public prosecutor is present, he too must be heard. The legislature in Section 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing the appellant or any one on his behalf or the public prosecutor. The expression after perusing such record in the section is, in our opinion, a condition precedent to a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the said section. The powers which the appellate court in criminal appeals possesses are depicted in Section 423. It has power not only to dismiss the appeal but also pass any one of the orders enumerated in Clauses (a), (b), (c) and (d) and Sub-section (1-a). These provisions show the enormous powers which the appellate court possesses in regard to, a criminal appeal. These powers, it cannot be gainsaid are very vast. Any one of the orders mentioned above, could be passed by the appellate court whether the appeal is disposed of on hearing or without hearing the appellant or his pleader. These provisions, in our opinion, clearly indicate the nature of a judgment or order that is expected of the appellate court in its judgement. It is in this context that the expression after perusing such record assumes great importance. Absence of those words in Section 421, brings out in bold contrast the difference in the nature of jurisdiction exercised under the two sections.
It is further observed in para 20:
It is not necessary to deal exhaustively with the connotation of the expression after perusing such record occurring in Section 423(1). That will depend upon the nature of the order or judgment appealed against as well as the point or points that are taken before the appellate court. But one thing is clear. There must be a clear indication in the judgment or order of the appellate court that it has applied its judicial mind to the particular appeal with which it was dealing. Such an indication will be available when the appellate court has considered the material on record, which means not only the judgment and petition of appeal, but also the other relevant materials. The appellate court is bound to have looked into the judgment of the lower court appealed against. The petition of appeal must have also been looked into to know the nature of the attack that is made against the judgment. There will be other materials on record and they will have to be perused by the appellate court. The nature of such perusal to be indicated in the appellate judgment may also differ under different circumstances.
6. Applying the above tests, I find that the order passed by the learned Sessions Judge, does not satisfy the above requirement. There is no indication in the order that it was passed on perusing the record. Admittedly, the order does not state that the court has perused the record, meaning thereby, there cord sent for, by it. It clearly appears that the order has been passed without perusing the record, on the ground that the petitioner or his advocate is absent there is no indication whatsoever in the judgment or order that there was application of judicial mind. The order passed by the learned Sessions Judge, therefore, cannot be sustained in law.
Revision petition is allowed the order of dismissal of Criminal Appeal No. 52 of 1975 is set aside and the matter is remanded to the learned City Sessions Judge Ahmedabad for disposing o f the appeal in accordance with law petitioner is directed to remain present in that court on 6th October, 1975. Rule is made absolute.