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2005 DIGILAW 1100 (RAJ)

Mula Ram v. State of Rajasthan

2005-04-11

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code") is directed against the Judgment and order dated 24.03.2004 passed by the Additional Sessions Judge, Deedwana (for short, "the Appellate Court" hereinafter) in a criminal appeal filed by the petitioner against the Judgment and order dated 01.08.2002 passed by the Judicial Magistrate, Deedwana (for short, "the trial Court" hereinafter) in a criminal appeal filed by the petitioner against the Judgment and order dated 01.08.2002 passed by the Judicial Magistrate, Deedwana (for short, "the trial Court" hereinafter)in Criminal Case No. 31/1999, by which the appeal filed by he petitioner came to be dismissed for non-prosecution and also on the ground of being not maintainable. By the Judgment and order dated 01.08.2002, the trial court convicted the accused-petitioner for the offence under Section 19/54 of the Excise Act and sentenced him to undergo three years simple imprisonment and a fine of Rs. 500/-and in default of payment of fine further to undergo one months simple imprisonment. 2. I have heard learned Counsel for the petitioner and the public Prosecutor for the State. Perused the impugned Judgment and order dated 24.03.2004 passed by the Appellate Court as also the Judgment and order dated 01.08.2002 passed by the trial Court and also perused the record of the trial Court. 3. Against the Judgment and order of the trial Court dated 01.08.2002, the petitioner filed the appeal before the Appellate Court on 05.08.2003, i.e., almost after more than one year from the date of Judgment and order of the trial Court. Alongwith the appeal, the petitioner moved an application under Section 5 of the Limitation Act seeking condonation of delay, inter alia, stating therein that he fell ill and, therfore, could not prefer the appeal well within the period of limitation. On 04.03.2004, Mr. N.K. Ojha, Advocate, engaged by the petitioner appeared before the Appellate Court and stated that the petitioner (appellant therein) is in judicial custody and sought time to argue the appeeal. The matter was posted to 24.03.2004. On 24.03.2004, neither the petitioner appellant nor his Counsel appeared before the appellate Court. The appellate Court, by a single paged cryptic Judgment and order, dismissed the appeal on the ground of non-appearance and also on the ground that the appeal is not maintainable. 4. The matter was posted to 24.03.2004. On 24.03.2004, neither the petitioner appellant nor his Counsel appeared before the appellate Court. The appellate Court, by a single paged cryptic Judgment and order, dismissed the appeal on the ground of non-appearance and also on the ground that the appeal is not maintainable. 4. It appears that the Appellate Court has not been advertent to the contention raised in the application under Section 5 of the Limitation Act seeking condonation of delay, more particularly when on 04.03.2004, it was brought to the notice of the Appellate Court that the appellant therein (petitioner) is in judicial custody. The expression "sufficient cause", as envisaged under Section 5 of the Limitation Act, 1963 has to be liberally construed. The cause of justice ought not to be defeated on technicalities of limitation, more particularly when the matter before the Appellate Court was an appeal against the Judgment and order of conviction and sentence, which needs to be decided independent of the decision of the trial Court by re-appreciating the evidence. 5. In Dnyanu Hariba Mali & Ors. vs. State of Maharashtra, (1970) 3 SCC 7 , the Honble Supreme Court held that in dealing with appeals under Section 410 Cr. P.C. from sentence of Court of Sessions, the High Court should give reasons for rejection of an appeal and if arguable and substantial points are raised, the High Court should not summarily reject the appeal. The Apex Court further held as under:- "The High Court dismissed the appeal with a one word order of dismissal. It is, therefore, not possible to know the reasons which persuaded the High Court to do so. This Court has, from time to time, stated that in dealing with appeals under Section 410 of the Criminal Procedure Code from sentences of the Court of Sessions the High Court should give reasons for rejection of an appeal and if arguable and substantial points are raised, the High Court should not summarily reject the appeal." 6. The Appellate Court, being the first Court of appeal on facts, is required to apply its mind and record its own finding on the basis of its own assessment of the evidence on record by re-appreciating thereof . There is no provision in the Code to dismiss the appeal for non-appearance. The Appellate Court, being the first Court of appeal on facts, is required to apply its mind and record its own finding on the basis of its own assessment of the evidence on record by re-appreciating thereof . There is no provision in the Code to dismiss the appeal for non-appearance. The Court may decide the appeal even in absence of the accused-appellant or its counsel, but the appeal has to be decided on merit, being first Court of appeal, by re-appreciation of the evidence and application of mind by the Appellate Court so as to arrive at a conclusion on its own assessment of the evidence. In the instant case, since the appeal came to be dismissed without application of mind and on a technical ground of limitation, which ought to have been considered by the appellate Court in right perspective keeping in view the fact that the appellant is in judicial custody after having been convicted by the trial Court, appeal cannot be defeated merely on the ground of delay. The Appellate Court was required to consider the merit of the appeal also. In the circumstances, therefore, the impugned Judgment and order of the Appellate Court cannot be sustained and is liable to be set-aside. 7. Consequently, the revision petition is allowed. The impugned Judgment and order dated 24.03.2004 passed by the Appellate Court is set-aside and the case is remanded to the lower Appellate Court, i.e., the Additional Sessions Judge, Deedwana to decide the application under Section 5 of the Limitation Act, as well as the appeal filed by the accused-petitioner in accordance with law. The application for suspension of sentence stands dismissed. Record of the trial Court be returned forthwith to the Additional Sessions Judge, Deedwana.