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2002 DIGILAW 148 (HP)

RAVI TIKU v. HIMALAYAN PIPE INDUSTRIES

2002-05-27

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—Since common questions of law and facts are involved in both these petitions praying for condonation of delay in filing the appeals, therefore, these are being disposed of by this common order. 2. Brief and undisputed facts leading to the filing of these applications are that the applicant was tried on two different complaints under Section 138 of the Negotiable Instruments Act by the learned Chief Judicial Magistrate, Solan and both the trials resulted in his conviction and sentence. He preferred two appeals both of which were dismissed by the learned Sessions Judge, Solan, on 24.9.2001 and 25.9.2001 subject to modification that the sentences of fine imposed in both the cases was slightly reduced. The applicant, however, did not seek any redressal against the convictions and sentences imposed on him within the period of limitation. Hence, the present applications. 3. It is averred that the applicant, who wants to file appeals against the said convictions and sentences, which he could not do within the limitation for the reason that he was sick and bed ridden due to disc and back problem, therefore, could not contact his counsel to file the appeal. Even at present, when he is lodged in the prison, he is undergoing treatment. Hence, according to the applicant, there is sufficient cause for condonation of delay in filing the appeals. 4. Replies to the applications have been filed by respondent No. 1 but no reply has been filed by respodnent No. 2 i.e. the State. Respondent No. 1 in the replies has taken the preliminary objection that appeals against the appellate order of the Sessions Judge is not maintainable and copy of judgment of the Sessions Judge was applied for by the counsel for the applicant on 25.9.2001 and delivered on 29.9.2001 and there had been deliberate delay in filing the appeal/revision and that the plea of sickness of the applicant is false and there is no reason to condone the delay. 5. I have heard the learned Counsel for the applicant, the learned Counsel for respondent No. 1 and the learned Assistant Advocate General for the State and have also gone through the material placed on the record. 6. 5. I have heard the learned Counsel for the applicant, the learned Counsel for respondent No. 1 and the learned Assistant Advocate General for the State and have also gone through the material placed on the record. 6. There cannot be any dispute that appeals against the impugned judgments of the learned Sessions Judge maintaining the conviction and modifying the sentence passed by the trial Court is not maintainable and only revision petition will be maintainable. 7. It was contended by the learned Counsel for the applicant that the papers have been routed by the applicant through the Jail Superintendent and legal advise was not available to him in the Jail, therefore, in the interest of justice the appeal can be treated as a revision petition as it satisfies the requisite conditions for filing the revision petition. 8. The papers have admittedly been routed through the Jail Superintendent by the applicant who can be presumed to be a layman in so far as the legal procedure is concerned, therefore, in the interest of justice the appeals can be treated as criminal revisions. (See: Gajju v. Emperor, 1905 Cr.LJ. 105 and Raharman Rai v. Harka Bahadur and others, 1983 (2) Crimes 576. The present applications, therefore, cannot be dismissed solely on the ground that appeals against the judgments sought to be impugned are not maintainable. 9. It may be pointed that on the date when the appeals preferred by the applicant in the Court of the learned Sessions Judge, Solan were decided he was not present in person but was represented by a counsel and the appellate Court had given directions to the trial Court to secure his presence and ensure that he serves out the awarded sentences. Subsequently, the presence of the accused was secured by the trial Court and he was sent to the prison to serve out the sentences imposed upon him. Thereafter the applicant has preferred the present applications through the Jail Superintendent. 10. The averments in the application that the applicant was disabled from contacting his counsel and filing appeals because of sickness arc duly supported by affidavits of the applicant. Further reliance has been placed on a certificate dated 9.4.2001 issued from Tndraprastha Apollo Hospital by Dr. Thereafter the applicant has preferred the present applications through the Jail Superintendent. 10. The averments in the application that the applicant was disabled from contacting his counsel and filing appeals because of sickness arc duly supported by affidavits of the applicant. Further reliance has been placed on a certificate dated 9.4.2001 issued from Tndraprastha Apollo Hospital by Dr. K.B. Attri, certifying that the applicant is suffering from severe low back pain due to lumbo-sacral instability because of disc degeneration and his spinal movements are severely restricted and he has been advised conservative treatment, regular physiotherapy and not to do certain acts including travelling long distances by road. There is no specific denial of the averments that even at present when the applicant is in jail he is undergoing treatment for his sickness. 11. Thus, there is no reason to disbelive the version of the applicant that the reason for his not approaching the Court for appropriate remedy within limitation is his illness as aforesaid. 12. Though the delay, sought to be condoned, is of 412 days, however, the period sought to be condoned in preferring the appeaal or revision -or an application is not material. What is material is whether sufficient cause for condonation of delay exists or not. In case there is no sufficient cause, a delay of even one day cannot be legally condoned and the law will take its own course. However, if sufficient cause is shown even the delay of years can be condoned. 13. As already stated hereinabove, the applicant had been under treatment at least from 4.9.2001 till date which disabled him from preferring the appeal/revision, therefore, in my view, there is sufficient cause for condonation of delay, as prayed for. 14. As a result, both these applications are allowed and the delay in preferring the appeals, which in the interest of justice are ordered to be treated as revision petitions, is condoned. Applications allowed.