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Report of the Record Office against the order of District Magistrate, Bahawalpur, dated. 6th February 1950. Decided on 18th April 1950.

Ss. 421, 423‑ Appeal dismissed for default‑Restoration and hearing on merits.

The Code of Criminal Procedure does not permit the dismissal of an appeal on the ground that the appellant does not appear to support it. If the appeal is riot dismissed summarily under section 421, its disposal is governed by section 423 and notwithstanding non‑appearance of the party, the Court is bound to send for the record, peruse it and give judgment.

9 Cr. L. J. 553 ; 1923 Mad. 426, referred to.

A criminal appeal Rahim Bakhsh v. Crown was pending in the Court of the District Magistrate, Bahawalpur, and was dismissed on 5th of December 1949 in the absence of the appellant. On the same day an application for the restoration of the appeal was presented by the appellant and was admitted by Maulvi Faiz Ahmad, District Magistrate. His successor without setting aside the order of the dismissal of the appeal passed by his predecessor, heard the appeal and decided it on merits. When the file was sent to the Record Office, it was sent to this Court for an order on the ground that the District Magistrate was incompetent to restore the appeal dismissed in default. The objection is not tenable. Ratan Chand v. Emperor, 9 Cr. L J Reporter, page 553 is an authority on all fours with the present case. It was held there that a District Magistrate who was ordered the dismissal of a Criminal Appeal, merely by reason of the non‑appearance of the appellant, is competent to set aside such order and thereafter to hear and decide the appeal according to law.

The Code of Criminal Procedure does not permit the dis missal of an appeal on the ground that the appellant does not appear to support it. If the appeal is not dismissed summarily under section 421, its disposal is governed by section 423 and notwithstanding non‑appearance of the party, the Court bound to send for the record, peruse it and give judgment. The same view was adopted by the Division Bench o: the Madras. High Court in case Kunhahamad Haji v. Emperor. See 1923 Mad. page 426. The order of the District Magistrate, dated the 6th February 1950 was, therefore, in accordance with law.

I may take the opportunity to point out the District Magistrate and rather to the other Courts as well that some order were passed by some of the officials of the District Magistrate's Office which was an absolutely illegal procedure, and should be stopped in every Court for ever.

The reference of the Record Office stands disposed of in the light of the above remarks and the file is returned to be consigned to the Record Office:

A. H. Order accordingly.

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