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2008 DIGILAW 125 (JHR)

Samir Ansari v. State of Jharkhand

2008-02-06

D.K.SINHA

body2008
Order The petitioner has preferred this Cr. Rev. against the order impugned passed by the Sessions Judge. Lohardaga in Cr. Appeal No. 08 of 2006 on 11.7.2007 whereby and whereunder, according to the learned counsel for the petitioner, the appeal preferred by the appellant-petitioner was rejected being not maintainable on the ground that the appeal was time barred by 37 days and no petition under Section 5 of the Limitation Act was preferred. It was further observed that on repeated calls when the lawyer of the appellant petitioner did not appear, the learned Sessions Judge held that the appellant was not interested to get the appeal admitted and accordingly it was rejected. 2. Mr. Rajiv Anand, the learned counsel submitted that no criminal appeal can be dismissed on the ground of default in appearance as held by the Apex Court in Parasu Ram Patel and Anr. VS. State of Orissa reported in [1995(1) East Cr. C 468(SC)]. It was observed by the Apex Court:- "The court has to go through the record of the case even in the absence of the appellants or their counsel and decide the matter on merit." 3. The Apex Court set aside the impugned order and remanded the matter to the High Court for decision on merit. 4. The learned counsel further pointed out that Ranchi Bench of the Patna High Court in Dashrath Bhokta and Ors vs. State of Bihar reported in [1996(2) East. Cr. C 915(pat.)] held:- "The law is well settled that so far the appeal against the order of conviction is concerned it must be decided after hearing the counsel for the appellant and in any view of the matter, if the counsel is absent, then the court should try to engage a counsel at the state cost for the appellant and then should decide the appeal." 5. Mr. Rajiv Anand finally submitted that the impugned order is illegal and therefore, it may be set aside with an appropriate order. 6. Heard Mr. Manoj Kumar the learned A.P.P. for the State who admitted that impugned order was passed in absence of the counsel for the appellant by the learned Sessions Judge. 7. Having regard to the facts and circumstances of the case I find that the order of dismissal of the appeal recorded by the learned Sessions Judge in Cr. 6. Heard Mr. Manoj Kumar the learned A.P.P. for the State who admitted that impugned order was passed in absence of the counsel for the appellant by the learned Sessions Judge. 7. Having regard to the facts and circumstances of the case I find that the order of dismissal of the appeal recorded by the learned Sessions Judge in Cr. Appeal No. 08 of 2006 against the judgment of conviction and order of sentence is not in consonance with the provision of settled law. The Cr. Appeal preferred against the judgment of conviction• and order of sentence cannot be dismissed in limine and the learned Sessions Judge ought to have taken assistance of Amicus Curiae or otherwise under the Legal Services Authority Act for disposal of the appeal. Even no opportunity was given to the appellant petitioner for filing the petition under section 5 of the Limitation Act. 8. In view of the above finding, the order impugned is set aside and the matter is remanded back to the Sessions Judge for fresh consideration and to record the judgment in accordance with law. It is evident from the impugned order that the ad interim bail of the appellant-petitioner has been vacated by the trial court. Yet, the trial court may consider ad interim bail on his surrender within 15 days of this order subject to confirmation by the appellate court. Accordingly this Cr. Rev. is allowed.