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2010 DIGILAW 83 (AP)

State of Andhra Pradesh v. Avunoori Srikanth

2010-02-15

SAMUDRALA GOVINDARAJULU, V.V.S.RAO

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JUDGMENT V.V.S.RAO, J. (1) These three miscellaneous petitions are filed by the State represented by the Public Prosecutor, High Court of Andhra Pradesh, seeking condonation of inordinate delay in representing criminal appeals against the acquittal, can be disposed of by this common order. All the petitions are accompanied by the affidavit of the Manager in Public Prosecutor's office and are similar giving identical reasons justifying the delay. (i) Criminal Appeal (SR) No.10015 of 2004 The respondents - Avunoori Srikanth and Kalwala Jagan - were acquitted by the Court of IV Additional District and Sessions Judge, Karimnagar, by judgment dated 16.3.2004, in Sessions Case No.54 of 2003. They were charged for an offence under Section 302 of Indian Penal Code. The respondents entered the plea of not guilty. Regular elaborate trial was conducted and as noticed supra, by judgment dated 16.3.2004 (about six years ago), prosecution case was thrown out by Sessions Court giving benefit of doubt to the accused. Aggrieved by the acquittal of respondents, the State preferred Crl.A. (SR) No.10015 of 2004 on 14.6.2004, after obtaining necessary information from the Government. The appeal was returned by the Registry pointing out that an application to condone the delay in filing appeal is required to be filed. As per the practice of the Court, the appeal shall have to be represented within a period of seven days. It was not done. Now this appeal is represented with delay of 1615 days. (ii) Criminal Appeal (SR) No. 20628 of 2005 The respondents - Reddy Malta Reddy and Reddy Pami Reddy - were acquitted by the Court of V Additional District and Sessions Judge, (Fast Track Court, Nizamabad, by judgment dated 15.3.2005, in Sessions Case No.193 of 2004. They were charged for an offence under Sections 302, 341 and 506 of Indian Penal Code, 1860. The respondents entered the plea of not guilty. Regular elaborate trial was conducted and as noticed supra, by judgment dated 15.3.2005 (about five years ago), prosecution case was thrown out by Sessions Court on the ground that the prosecution failed to prove the guilt of the accused. Aggrieved by the acquittal of respondents, the State preferred Crl.A. (SR) No.20628 of 2005 on 21.11.2005, after obtaining necessary information from the Government. The appeal was returned by the Registry pointing out that an application to condone the delay in filing appeal is required to be filed. Aggrieved by the acquittal of respondents, the State preferred Crl.A. (SR) No.20628 of 2005 on 21.11.2005, after obtaining necessary information from the Government. The appeal was returned by the Registry pointing out that an application to condone the delay in filing appeal is required to be filed. As per the practice of the Court, the appeal shall have to be represented within a period of seven days. It was not done. Now this appeal is represented with delay of 1343 days. (iii) Criminal Appeal (SR) No.21341 of 2005 The respondent - Thalapala Kamakshi - was charged for an offence under Sections 302 and 324 of Indian Penal Code, 1860, by the Court of IV Additional District and Sessions Judge, Nellore, in Sessions Case No.224 of 2001. She entered the plea of not guilty. Regular elaborate trial was conducted. By judgment dated 17.3.2005 (about five years ago), she was convicted for the offence under Sections 304 Part It and 324 of IPC. However, Sessions Court found the accused not guilty for the offence under Section 302 of IPC. Aggrieved by the finding of Sessions Court, the State preferred Crl.A. (SR) No.21341 of 2005 on 30.11.2005, after obtaining necessary information from the Government. The appeal was returned by the Registry pointing out that an application to condone the delay in filing appeal is required to be filed. As per the practice of the Court, the appeal shall have to be represented within a period of seven days. It was not done. Now this appeal is represented with delay of 1349 days. (2) WE have heard learned Public Prosecutor. In the affidavit filed by Manager of Public Prosecutor's office, it is stated that one Sri Ganeswara Rao, who is Manager in-charge of filing appeals against the acquittals retired on 31.5.2004, that thereafter Sri T.M.Y. Swamulu, became Manager, but he was suspended in view of disciplinary case against him and that the deponent of the affidavit was promoted on 30.12.2005. He was in-charge of filing appeals against the acquittal cases. He has been processing similar appeals, but the work could not be completed in time, as the office was shifted twice from one place to another. It took some time to trace the files in Public Prosecutor's office. After tracing the file, message was sent to Superintendent of Police, Karimnagar, for deputing concerned office to file an affidavit. He has been processing similar appeals, but the work could not be completed in time, as the office was shifted twice from one place to another. It took some time to trace the files in Public Prosecutor's office. After tracing the file, message was sent to Superintendent of Police, Karimnagar, for deputing concerned office to file an affidavit. The Sub-Inspector of Police, P.S. I-Town, Godavarikhani, came to the office and his affidavit is filed in support of the application to condone the delay. In view of this appeal papers could not be represented in time. A plain reading of the affidavit would disclose that frequent postings of persons as Managers and shifting of Public Prosecutor's office are two prime reasons shown as causes for the delay in representing the appeal papers. In view of the reasons that would follow, we are not able to accept the plea that administrative reasons alleged in affidavit must weigh with the Court in condoning the delay in representing the appeal papers. It is of course true that ordinarily the Court is lenient in extending time for complying with procedural requirements to avail the remedy from the High Court. But in a criminal case especially an appeal by the State under Section 378(2) and (3) of Criminal Procedure Code, 1973 (Cr.PC), other considerations must and ought to weigh with the Court even while considering applications by the State for condonation of delay in presentation or representation. We have examined this application with reference to the possible destruction of records, destruction of material objects (MOs) which have no value and post criminal trial requirements that are followed by the Sessions Court. (3) The Criminal Rules of Practice and Circular Orders, 1990 (the Rules, for brevity) made by the High Court in exercise of powers under Article 227 of Constitution of India and Section 477 of Cr.PC comprehensively deal with the Rules of Practice in the Court of Judicial Magistrate of First Class and Sessions Court. Chapter XI (Rules 220 to 234 deal with case property. Rules 227 and 22S are relevant. 227. Judgment to contain Orders for disposal:-Orders for the disposal of material objects should be passed in the judgment itself. 228. Chapter XI (Rules 220 to 234 deal with case property. Rules 227 and 22S are relevant. 227. Judgment to contain Orders for disposal:-Orders for the disposal of material objects should be passed in the judgment itself. 228. When Material-Objects are to be disposed -Material objects exhibited at the trial of criminal cases should be retained by the Court until the Court is satisfied that the appeal time has expired and that no appeal has been presented or that any appeal presented has been disposed of. But when a case is disposed of by High Court, the material object shall ordinarily be disposed of after the expiry of 90 days from the date of judgment of the High Court, unless in the meantime,- (1) the parties interested have, on a proper application, obtained a direction from the High Court for preservation of such objects, pending disposal of an application for leave to appeal to the Supreme Court under Article 134(l)(c) of the Constitution of India, or a special leave petition; or (2) intimation of Appeal preferred to the Supreme Court of India under Article 134(l)(a) and (b) of the Constitution is received. After that, they may be destroyed or otherwise disposed of according to the Rules. (4) Criminal Rules of Practice prescribe various forms to be adopted by the criminal Court in its functioning. There are as many as 55 forms and registers to be maintained by a criminal Court, Form No.52 is in two parts, Form-A gives the index and Form-B deals with divisions of records and description of papers. The record has to be kept in Part-I and Part-II, Part-B deals with criminal trials other than summary trials. Warrant of commitment to jail, complaints to Magistrates, reports by the Police under Sections 174 and 175 of Cr.PC, oral evidence and all unspecified papers form part of Part-II, Below the said division, there is table showing the periods prescribed for retention of parts of records in various cases, which reads as under: Name of Proceedings Number of years For which records are to be retained Part-I Part-II 1. In trial and appeals - a. Sessions cases 20 b. Warrant cases 20 3 c. Summons cases 5 3 d. Summary trial - A. (omitted ..) B. All other records 3 - e. Ail records in criminal cases before village Panchayat Courts except documentary evidence 1 - f. Documentary evidence in cases before village Panchayat Courts 3 - 2. In Miscellaneous Proceedings - a. Maintenance 20 3 b. Security to keep the peace or for good behaviour 10 3 c. Other Miscellaneous Proceedings 3 3 3. Records in cases referred by the Police or in which further investigation is stopped 3 - 4. Records in cases entered in the Register of long pending cases 30 30 Though there is no specific number of years mentioned for retaining oral evidence in a Sessions Case, which forms Part-II of record as Sessions Case is tried as a warrant case, it is clear that though the judgment in a Sessions Case (forming Part-I) is to be retained for a period of twenty (20) years, the oral evidence need to be retained only for a period of three years. As noticed supra, the MOs exhibited in the trial of criminal cases are to be retained in the criminal Court only till the expiry of time prescribed for filing an appeal and in case an appeal is filed for a period of 90 days after expiry from the date of judgment. In this case, learned Sessions Judge delivered the judgment on 16.3.2004. If at this point of time, the delay of more than five years in representing appeal is condoned, it would certainly cause prejudice as in all probability the record would not be available. (5) Section 374(2) of Cr.PC providing for an appeal to the High Court against conviction by the Sessions Judge or Additional Sessions Judge is an effective remedy provided by the law. After an appeal is admitted, the High Court shall have to send for the records of the case and hear the appeal with regard to the validity of the finding of guilt and with regard to legality of sentence, The appellate Court may reverse finding and sentence and acquit the accused and in case the appeal is from an order of acquittal reverse the order of Sessions Court and direct that the accused be retried. Therefore the hearing of an appeal so as to be effective must be with reference to the evidence adduced by the prosecution and defence in the trial in accordance with Sections 231 and 233 of Cr.PC respectively. A belated appeal even if it is with the leave of the Court as contemplated under Section 378(3) of Cr.PC without record would certainly be a futile exercise. This is not a case where appeal is filed with the entire record that came into existence during the Sessions trial. Except a copy of the judgment of the Court below, no other record is available. Therefore, we are not inclined to condone inordinate delay in representing appeal to the Registry. (6) The miscellaneous petitions are therefore dismissed.