Gauhati High Court
Arun Bhusan Chakravarty And Ors. vs State Of Assam on 10 July, 1989
Equivalent citations: 1990CRILJ531
ORDER B.P. Saraf, J.
1. These two Revision Petitions arise out of a common judgment and order and are as such taken up together. The petitioners in both the cases, namely, 1. Arun Bhusan Chakravarty, 2. Zamatullah and 3. Usman Ali were convicted by the Assistant Sessions Judge, Gauhati under Section 399, I.P.C. and sentenced to R/I for five years and a fine of Rs. 100/- in default R/I for three months. An appeal was filed by the petitioners against the said order of conviction before the Sessions Judge, Kamrup, Guwahati. The learned Sessions Judge fixed the appeal for hearing on 11-11-80 and issued notice to the parties. On 11-11-80 hearing could not take place on as the Court could not function on that day due to Non-Co-operation Movement. On 12-11-80 the learned Sessions Judge fixed 6-1-81 for hearing. On 6-1-81 the learned Sessions Judge transferred the case to the Additional Sessions Judge for disposal, without fixing a date.
2. The learned Additional Sessions Judge on receipt of the case record on transfer passed an order on 5-1-81 fixing the appeal for argument on 6-2-81 wherein it was also mentioned that none appeared for the appellant before him. On 6-2-81 it was adjourned to 6-3-81. On 6-3-81 the following order was passed :--
"None appears for the appellant. Heard Shri K. P. Sarma, Advocate for the respondent (State). Fix 18-3-81 for judgment".
On 18-3-81 judgment was delivered ex perte on appeal confirming the conviction and sentence passed by the learned Assistant Sessions Judge.
3. Against the aforesaid judgment dated 18-3-81 passed ex parte by the learned Additional Sessions Judge the present revision petitions have been filed. The main contention of the petitioners is that the impugned judgment and order passed by the learned Additional Sessions Judge is in violation of the requirement of Section 385 of the Code of Criminal Procedure, 1973 which requires the appellate Court to cause a notice of time and place at which such appeal will be heard to be given to the appellant or his pleader.
4. Heard Mr. S. R. Bhattacharjee and Mr. S. A. Ali, learned counsel for the petitioners. Also heard Mr. Bora, learned Public Prosecutor.
5. I have perused the records. So far as the factual part of the case is concerned there is no dispute. It is evident from the records that the case was transferred to the Additional Sessions Judge on 6-1-81 for disposal. The learned Additional Sessions Judge thereafter fixed 6-2-81 for hearing. No notice of the said date was given either to the appellants or their advocate. The case of the petitioners is, that they were not aware otherwise also about the date of hearing, and as such, they could not appear on the date fixed for hearing and the case was decided ex parte thereby depriving them of the valuable right of hearing.
6. I have considered the submissions of the learned counsel. On consideration of the submission of the learned counsel and on perusal of the facts of the case I find that the requirement of Section 385 Cr. P.C. are not complied with in the instant case.
7. Section 385 embodies the principle of natural justice and specifically provides that the appellate Court shall cause notice of the time and place at which such appeal will be heard to be given to the appellant or his pleader. This requirement is mandatory. The object is to give a chance of hearing to the appellant or his pleader if he appears. In the instant case the petitioners did not receive notice of date of hearing and place as contemplated by Section 385 of the Code they have been deprived of the right of being heard before the matter was disposed of. The petitioners have been sentenced to undergo rigorous imprisonment for five years in addition to fine. The point for determination is whether under such circumstances the appellate order can be sustained. Mr. S.R. Bhattacharjee, learned counsel for the petitioner submits that it is a fit case where the orders passed by the Additional Sessions Judge, Kamrup, Guwahati confirming the sentence should be set aside and the matter may be remanded for fresh hearing after giving opportunity of hearing to the petitioners.
8. In view of the facts and circumstances stated above, I set aside the judgment and order passed by the learned Additional Sessions Judge, Kamrup, Guwahati in Criminal Appeal No. 6(K-2) of 1978 and the case is remanded to the Court of Sessions Judge, Kamrup, Gauhati for disposal of the appeal in accordance with law and after complying the requirements of Section 385 of the Code of Criminal Procedure as discussed above. The records of the lower Court may be sent down to the Court of Sessions Judge, Kamrup, Gauhati immediately. The petitioners are directed to appear before the learned Sessions judge, Kamrup, Gauhati on 7-8-89 either through their counsel or in person on which date the Court shall intimate the date of hearing as required by Section 385 of the Code and the learned Court shall try to dispose of the appeal as expeditiously as possible.
9. With the aforesaid observations and directions the Revision Petitions are allowed.
10. Both the petitions are disposed of accordingly.