1. Rule. Mr. JD Ajmera appears for respondent No.1 and waives service of notice of rule. Mr. KC Shah, learned APP appears for and waives service of notice of rule on behalf of the respondent No.2. In the peculiar facts of the case, all the parties jointly request that the application may be taken up for final hearing today and may be decided finally today. Thus, with the consent of the learned advocates appearing on behalf of the respective parties and in view of the joint request, present application is taken up for hearing today.
2. The applicant herein has preferred this application against an order dated 22.2.2008 whereby, the appeal No.8 of 2005 came to be dismissed for default on account of absence of the appellant. Against the said order dated 22.2.2008 present revision application is preferred. By the same order the learned Court has, the counsel point out, also disposed off companion matter being revision application No.78 of 2006 and the concerned applicant has preferred criminal revision application No.330 of 2008 against the order.
3. It is, by now, settled position that appeal ought not to be dismissed for default for non- prosecution. Mr. Parikh has appeared for the applicant and submitted that the said order is unjust and untenable. Mr. Parikh has placed reliance on the judgment of the Hon'ble Apex Court in the case of Parasuram Patel & Anr. V/s. State of Orissa reported in (1994) 4 SCC 664 wherein, the Hon'ble Apex Court has held that “it is now well settled that no criminal appeal can be dismissed on the ground of default in appearance.”
4. In view of the said judgment of the Hon'ble Apex Court, the impugned order dated 22.2.2008 is quashed and set aside. The District Court, Amreli is directed to restore the appeal No.8 of 2005 to file and to restore the proceedings and to proceed with the hearing in accordance with law.
5. With the aforesaid observation and direction, present application is allowed. Rule made absolute to the aforesaid extent. No order as to costs.
Kdc [K.M.Thaker, J.]