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2008 DIGILAW 305 (JHR)

Baldeo Sao v. State of Jharkhand

2008-03-12

D.G.R.PATNAIK

body2008
Order Heard the learned counsel for the petitioner and the counsel for the State. 2. The instant Revision application has been filed against the judgment dated 22.6.2004, passed by the Additional Sessions Judge, FTC., 7th, Giridih, whereby the conviction of the petitioner for the offences under Sections 325 and 323 of the I.P.C. and the corresponding sentences in respect of the said offences has been confirmed. 3. At the outset, learned counsel for the petitioner while pointing out the certain paragraphs of the impugned Judgment of the learned lower appellate court submits that the petitioner had preferred the appeal against the judgment of conviction and sentence passed by the trial court but the lower appellate court had dismissed the appeal for purported non-prosecution and without hearing the petitioner at all and the appeal has not been disposed or by allowing adequate opportunity to the petitioner to be heard. 4. Learned counsel for the State concedes that from the perusal of the impugned judgment of the lower appellate court, it does appear that the appeal was dismissed for non-prosecution though the learned lower appellate court ilas also made certain observations on the basis of the facts of the case and the evidences on record. 5. From the bare perusal of the impugned judgment of the lower appellate court, it appears that the case was purported to be disposed of on merits but without hearing the petitioner or his counsel. Even if the petitioner and his counsel were absent when the appeal was called out for hearing, the lower appellate court was obliged under the law to obtain assistance of lawyer as amicus curiae on behalf of the petitioner and to consider the appeal on merits. The first appellate court could not have dismissed the appeal on the ground of non-prosecution. Though reference to the judgment of the Supreme Court has been made in the impugned judgment, but it appears that the lower appellate court has not conceived the judgment in the context in which it was passed nor the import which the Supreme Court judgment intends to convey. 6. In the light of the above facts and circumstances, the instant Revision application. which is directed against the judgment dated 22.6.2004, passed in Cr. 6. In the light of the above facts and circumstances, the instant Revision application. which is directed against the judgment dated 22.6.2004, passed in Cr. Appeal No. 161 of 1986 by the Additional Sessions Judge, FTC., 7th, Giridih is hereby allowed and the matter is remitted back to the first appellate court/Sessions Judge, Giridih to consider and dispose of the appeal after affording the appellant opportunity of being heard. the date for which shall be fixed within one month from the date of receipt of this order. The petitioner, Saldeo Sao who is in custody, till the disposal of this Criminal Revision application, is directed to be released on bail on furnishing bail bonds of Rs. 20,000/(Rupees Twenty thousand) with two sureties of the like amount each to the satisfaction of Shri S.S. Pandey, Judicial Magistrate, 1st Class, Giridih in connection with Cr. Case No. 919 of 1984 (T.R. No. 117 of 1986) with a direction that he shall appear before the lower appellate court on the date when the appeal is fixed for hearing.