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Bansi Mirdha and ors. Vs. Brojeswar Dutt - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal95,81Ind.Cas.974
AppellantBansi Mirdha and ors.
RespondentBrojeswar Dutt
Excerpt:
criminal procedure code (act v of 1898), section 423 - appellate court, duty of--criminal appeal, whether can be dismissed for default. - .....called for by the magistrate. on the 2nd march 1923, after the records had arrived, it being the date of hearing of the appeal, the appeal was taken up for hearing. on that date, no one appeared in support of the appeal on behalf of the appellant and no application for adjournment was filed. the learned magistrate thereupon dismissed the appeal. under the provisions of section 423, cr.p.c. it was incumbent upon the learned magistrate to go through the record and to dispose of the appeal on the merits. he could not dismiss the appeal merely because there was default in the appearance of the pleader for the appellant.2. in this view of the matter the rule is made absolute. the matter is remitted to the learned magistrate in order that he may re-hear the appeal and dispose of the same in.....
Judgment:

1. In this case it appears that after the appeal in the lower Court had been presented, the records were called for by the Magistrate. On the 2nd March 1923, after the records had arrived, it being the date of hearing of the appeal, the appeal was taken up for hearing. On that date, no one appeared in support of the appeal on behalf of the appellant and no application for adjournment was filed. The learned Magistrate thereupon dismissed the appeal. Under the provisions of Section 423, Cr.P.C. it was incumbent upon the learned Magistrate to go through the record and to dispose of the appeal on the merits. He could not dismiss the appeal merely because there was default in the appearance of the pleader for the Appellant.

2. In this view of the matter the Rule is made absolute. The matter is remitted to the learned Magistrate in order that he may re-hear the appeal and dispose of the same in accordance with the terms of Section 423, Cr.P.C.


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