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Criminal Revision No. 474 of 1950, decided on 12th January, 1951.
, S: 421‑Appellant or his pleader absent‑Appeal must nevertheless be judicially determined on merits.
R. C. Talukdar, for Petitioner.
No one for opposite party.
:‑--This is an appeal of one Srikanta Karmakar, a Muktear practising at Bogra, who stood surety for the sum of Rs.1000 for the production of an accused in a Criminal Case by name Abhoy Sankar Bakshi before the Sub‑Deputy Magistrate of Bogra on the 23rd of August 1950 or on any subsequent date to which the case might be adjourned. The petitioner failed to produce the accused, Abhoy Sankar Bakshi, and accordingly was called upon to pay the whole amount for which he had stood surety. He appealed against the order of forfeiture but the District Magistrate of Bogra to whom the appeal was presented recorded on the 9th of September, 1950 :‑---
"Appellant absent. The appeal is rejected. It is this order which has now been brought before this Court in the exercise of this Criminal revisional jurisdiction and a rule was issued on the District Magistrate to show cause why the order should not be set aside on the ground that he acted illegally in dismissing the appeal without assigning any reason thereafter and without discussing any merits of the case.
Mr. Talukdar has appeared in support of the rule. No one has appeared in opposition thereto. Mr. Talukdar, has drawn my attention to the observations which are to be found under section 421 of the Code of Criminal Procedure in B. B. Mittra's Annotated Book, page 1235, note No. 1130. It has there been mentioned :‑---
"Appellant not bound to appear :‑Once an appeal is received, it should not be dismissed, merely because the appellant or his pleader failed to appear to support the petition ; but the Appellate Court must consider whether there exists sufficient grounds for its interference, and must judicially determine the appeal on the merits."
This proposition of law is well supported by authoritative rulings.
In the circumstances, the rule is made absolute, the order of the District Magistrate dated the 9th of September, 1950 set aside and the case is remanded to him in order that he may hear the appeal on its merits. The realisation of the amount forfeited will remain stayed pending orders of the Magistrate.
A. H. Rule made absolute.
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