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2005 DIGILAW 2744 (RAJ)

Gajendra Singh v. State

2005-10-20

N.K.JAIN

body2005
Judgment Narendra Kumar Jain, J.-Heard learned Counsel for the petitioner and learned Public Prosecutor and examined the impugned order dated 08.08.2005 as well as record of the trial Court. 2. The petitioner has filed this revision petition under Section 397 read with Section 401,CrPC against the order dated 08.08.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities Cases), Ajmer in Criminal Appeal No. (01/2005) (101/2005) 117/2005 whereby an application under Section 5 of the Limitation Act filed by the petitioner for condonation of delay in filing his criminal appeal has been rejected. 3. The petitioner was convicted and sentenced by the Chief Judicial Magistrate, Ajmer vide order dated 11.04.2002 for the offence under Sections 147, 148, 324, 341 and 394, IPC and was sentenced as per the details given in the order dated 11.04.2002. The maximum sentence was two years rigorous imprisonment and fine of Rs. 200/-under Section 324, IPC. The petitioner preferred an appeal on 17.05.2005 under Section 374, CrPC before the District and Sessions Judge, Ajmer against the order of conviction and sentence dated 11.04.2002 alongwith an application under Section 5 of the Limitation Act. The appeal was transferred for disposal to the Special Judge, SC/ST (Prevention of Atrocities Cases), Ajmer. The appellate Court, after hearing the arguments rejected the application under Section 5 of the Limitation Act. Consequently, the appeal of the petitioner was also dismissed. 4. Learned Counsel for the petitioner contended that the petitioner was not present before the trial Court on 11.04.2002 when the Judgment was passed and the same is clear from the order-sheet of the trial Court dated 11.04.2004, therefore, he could not come to know about passing of the Judgment dated 11.04.2004. Subsequently, he was not informed by his Counsel appearing in the trial Court about passing of the Judgment of the conviction and sentence against him. However, when he was arrested in pursuance of the warrant, then he came to know about passing of the Judgment and he immediately preferred an appeal on 17.05.2005 alongwith an application under Section 5 of the Limitation Act. He submits that co-accused Dharamveer Singh, who was similarly situated and was convicted and sentenced by common order, was given the benefit of probation by the appellate Court. He further submits that he did not gain anything in not preferring the appeal well in time against his order of conviction and sentence. 5. He submits that co-accused Dharamveer Singh, who was similarly situated and was convicted and sentenced by common order, was given the benefit of probation by the appellate Court. He further submits that he did not gain anything in not preferring the appeal well in time against his order of conviction and sentence. 5. Learned Counsel for the petitioner also submits that the petitioner was arrested on 11.04.2005 and since then, the petitioner is in judicial custody. He has already served out part of his sentence. Therefore, the contention of learned Counsel for the petitioner is that the delay in filing the appeal may be condoned and the case may be remanded back to the appellate Court for disposal of his appeal on merits. 6. Learned Public Prosecutor has opposed the revision petition. 7. I have considered the rival submissions of both the parties. The order-sheet of the trial Court dated 11.04.2002 clearly shows that two co-accused persons namely Pawan and Ajay were present in person at the time of pronouncement of the Judgment but the present petitioner was not present on that day. Although, it was a duty of the petitioner also to go and contact with his Counsel and find out about the next date or the result of the case and in not doing so, he committed a mistake and for the same, he himself is responsible, but at the same time, it cannot be ignored that right of the appeal is a statutory and valuable right and petitioner did not gain anything in not filing the appeal in time and he has already served out part of his sentence for about six months for his above referred negligence. The petitioner is in judicial custody since 11.04.2005. It is also borne out from the order of the appellate Court itself that the co-accused Dharamveer was granted the benefit of probation in place of sentence of imprisonment in the same matter against the same impugned order passed by the trial Court. 8. In view of the above and in the facts and circumstances of the case stated hereinabove, I think it fit and proper in the interest of justice to condone the delay in filing the appeal filed by the appellant before the appellate Court. 9. Consequently, the revision petition of the petitioner is allowed. 8. In view of the above and in the facts and circumstances of the case stated hereinabove, I think it fit and proper in the interest of justice to condone the delay in filing the appeal filed by the appellant before the appellate Court. 9. Consequently, the revision petition of the petitioner is allowed. The impugned order dated 08.08.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities Cases), Ajmer is set aside. The application under Section 5 of the Limitation Act filed by the petitioner before the appellate Court stands allowed. The case is remanded back to the Special Judge. SC/ST (Prevention of Atrocities Cases), Ajmer for deciding the appeal of the petitioner against his order of conviction and sentence dated 11.04.2002 on merits. The records of the trial Court as well as appellate Court may be sent back immediately. It is expected from the appellate Court to decide the appeal as soon as possible keeping in mind that the petitioner is in judicial custody. It will be open for the petitioner to move an application for suspension of sentence during the pendency of the appeal before the appellate Court. 10. In view of the above observations and directions, the revision petition is allowed as indicated above.