JUDGMENT 1. - The petitioner Kanhaiyalal was prosecuted in a criminal case No. 168/1971 State v. Kanhaiyalal for the offence under section 457 and 380 I.P.C. The petitioner Executed a personal and a surety bond for his appearance in the court ion the date fixed. It is said that he absented on 24-6-71 and the court of the learned Additional and Munsif Magistrate No. 1, Jodhpur, in which court the case was challenged against the accused started proceedings under section 514 Cr.P.C. of 1898 and ordered the recovery of Rs. 2000/-, the amount of the bond executed by the petitioner. The petitioner was serving the sentence which was awarded to him in the original case of theft. He therefore applied for the copy of the impugned order of the learned Additional Judicial Magistrate dated 25-4-74 through jail authorities. The Jail authorities received the copy of the order on 31-5-74 and an appeal was preferred. But unfortunately the papers regarding the appeal instead of being remitted to the Court of the Sessions Judge, Jodhpur were wrongly addressed to the Registrar of this Court, and thus the appeal was wrongly preferred in this Court. It seems that the papers were despatched by the Superintendent, Central Jail Jodhpur vide his office letter No. Judl./1/App./293/748 dated 3-6-74. That appeal was received in this Court on the office report shows, on 11-6-74 (Record S. B. Criminal (Jail) Appeal No. 361 of 1974). Subsequently this mistake was discovered by the Superintendent, Central Jail, Jodhpur that he has wrongly remitted the papers of appeal to this Court. He therefore requested this Court vide his letter No. Judl./1/1285 dated 10-7-74 that through over sight the appeal was miss sent to this Court for which he regretted and further requested to return the above memo of appeal along with this enclosure for transmission to the concerned appellate court. On this the papers were transmitted to the Superintendent Central Jail, Jodhpur from this Court. Thereafter the memo of appeal was sent to the Sessions Judge, Jodhpur by the Superintendent. Central Jail, Jodhpur vide his letter No. 1618 dated 1-8-74. On this the appeal was registered subject to objection as to limitation on 5-8-74 by the Sessions Judge and was subsequently transferred for disposal to the court of Additional Sessions Judge No. 1, Jodhpur on 6-8-74. Central Jail, Jodhpur vide his letter No. 1618 dated 1-8-74. On this the appeal was registered subject to objection as to limitation on 5-8-74 by the Sessions Judge and was subsequently transferred for disposal to the court of Additional Sessions Judge No. 1, Jodhpur on 6-8-74. The learned Additional Sessions Judge vide his impugned order dated 30-3-76 held the appeal to be time barred. It is against this order that this revision petition has been preferred. 2. From the perusal of this impugned order of the learned Additional Sessions Judge it transpires that there was no record available with the Additional Sessions Judge as to what period was taken in the proceedings during which the appeal was wrongly preferred in this Court. Therefore, he counted the period as to the date when the appeal was actually received by the Sessions Judge, Jodhpur through the Superintendent, Central Jail, Jodhpur and he refused to invoke the provisions of section 5 of the Limitation Act. 3. When this revision position came up before this Court on 1-2-77 the petitioner requested to file an affidavit to explain the delay as to how the appeal was submitted late in the Court of Sessions Judge, Jodhpur. The court granted time to file such an affidavit and the affidavit has been so filed on 14-2-77. 4. I have heard the arguments of the learned counsel for the petitioner and the learned Public Prosecutor and have also gone through the record of the case. Admittedly the petitioner was undergoing sentence of imprisonment and the papers regarding appeal were routed out through the Jail Authorities. He submitted application for the copy of the impugned order in time which was received by the Jail authorities sent the memo of appeal to this court on 3-6-74. This was an error on the part of the Superintendent, Central Jail, Jodhpur in wrongly sending the appeal to this Court instead of to the court of Sessions. As there was no material before the learned Additional Sessions Judge on this point as to when the appeal was preferred to the High Court and when it was received therefrom and how much time it had taken in this process, he did not give the benefit of section 5 of the Limitation Act. As there was no material before the learned Additional Sessions Judge on this point as to when the appeal was preferred to the High Court and when it was received therefrom and how much time it had taken in this process, he did not give the benefit of section 5 of the Limitation Act. The learned counsel for the petitioner has also submitted that he could have also given the benefit of section 14 of the Limitation Act. It is an admitted fact that the appeal was wrongly sent to this Court and it was subsequently sent back to the Superintendent, Central Jail, Jodhpur and he therefore remitted the memo of appeal etc. to the Sessions Judge, Jodhpur. The learned Sessions Judge in the interest of justice should have given an opportunity to the petitioner to clarify all this position. As the petitioner was in Jail he could not prosecute his appeal properly and had no opportunity to file any affidavit. As he had no counsel in Jail to advise him he could not have submitted the affidavit also. Without giving the opportunity to the petitioner the learned Additional Sessions Judge has come to this finding that the appeal was preferred beyond about fifty seven days and thus was barred by limitation. Thus he has not properly exercised his judicial discretion in the present case. It was also his duty to have made an inquiry, of all these facts and circumstances, by giving the petitioner proper opportunity. The impugned order of the learned Additional Sessions Judge dated 25-5-74 is therefore liable to be set aside. 5. The revision petition is accepted, the order of the learned Additional Sessions Judge No. 1, Jodhpur dated 25-5-74 is set aside and the case is remanded to him with the direction that the petitioner be given opportunity to explain the delay in preferring an appeal to the Sessions Judge and after giving that opportunity he should re hear the matter and decide whether the petitioner can be given benefit of section 5 and 14 of the Limitation Act or not and if he is so entitled to that benefit then to decide the appeal on merits. *******