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2009 DIGILAW 1713 (RAJ)

Jagdish Puri v. State of Rajasthan

2009-07-29

H.R.PANWAR

body2009
JUDGMENT 1. - Issue notice for final petitioner. 2. Mr. O.P. Singaria, Public Prosecutor is directed to accept notice for the respondent-State. He accepts the notice. With the consent of learned Counsel for the parties, the matter is finally heard at admission stage. 3. By the instant criminal revision petition under Section 397/401 CrPC, the petitioner has challenged the judgment dated 09.07.2009 passed by Sessions Judge, Bhilwara in criminal Appeal No. 706/2009 whereby the appeal filed by the petitioner against the order dated 17.07.2006 passed by Additional Chief Judicial Magistrate, Shahpura, Distt. Bhilwara (for short "the trial Court") in criminal case No. 469/2002 convicting the petitioner for the offence under Section 498A IPC and sentencing him to undergo 2 years rigorous imprisonment and fine of Rs. 5000/-; in default of payment of fine to further under 4 months imprisonment, was dismissed only on the ground of delay in filing the appeal. 4. Heard learned Counsel for the parties. 5. Learned Counsel for the petitioner submits that after the order of conviction of the trial Court, the petitioner engaged an advocate Shri Kalyanmal Dhakad for filing an appeal against the judgment of conviction and sentence and paid him counsel fee. Thereafter, counsel assured the petitioner that he will file the appeal before the appellate Court, however, counsel failed to filed the appeal. When the petitioner enquired from his counsel about status of appeal, he was informed that he has been acquitted by the appellate Court but subsequently, when the police arrested him, he came to know about non-filing of the appeal before the appellate Court and thereafter, he promptly filed an appeal before the appeal Court. 6. In my view, the appellate Court while dismissing the appeal only on the ground of delay ought to have been taken into consideration the merit of the case also. The petitioner has right to appeal and he has been non suited only on the ground of delay. The petitioner has shown sufficient him to file the appeal within the period of limitation. In the circumstances, therefore, the order impugned cannot sustain and liable to be set aside. 7. Consequently, the revision petition is allowed. The order impugned dated 09.07.2009 is set aside. The petitioner has shown sufficient him to file the appeal within the period of limitation. In the circumstances, therefore, the order impugned cannot sustain and liable to be set aside. 7. Consequently, the revision petition is allowed. The order impugned dated 09.07.2009 is set aside. The appeal filed by the petitioner before the appellate Court is restored and the matter is remanded to the Sessions Judge, Bhilwara to hear and decide the appeal of the petitioner by condoning delay in filing the appeal, in accordance with law on merit after affording an opportunity of hearing to the petitioner and public prosecutor. It will be open for the petitioner to move before the appellate Court for suspension of sentence during the pendency of his appeal.Revision allowed. *******