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2011 DIGILAW 488 (KER)

Safar v. State of Kerala

2011-05-25

V.K.MOHANAN

body2011
ORDER : V.K. Mohanan, J. The petitioner, who is the accused in CC No. 1 of 2010 of the Judicial First Class Magistrate Court-II, Alappuzha, faced charge under Sections 454 and 511/380 of IPC and he is convicted for the said offence. Against the said conviction and sentence, the petitioner had preferred an appeal, but the learned Sessions Judge dismissed the appeal by order dated 10/11/2010 in Crl. A. No. 501 of 2010. The present grievance of the petitioner is that the appeal was dismissed not on merit, but on the ground of delay. Heard the counsel for the petitioner as well as the learned Public Prosecutor. 2. As indicated earlier, the petitioner is the sole accused in Crime No. 684 of 2009 of the North Police Station, Alappuzha, where the offences alleged are under Sections 454, 511/380 of IPC in which the allegation is that on 25/11/2009 at 4.30 p.m., the accused with intention to commit theft, did lurking house trespass in the house by name Chalengadi house, No. IV/453 in Kalathu Ward of Alappuzha Municipality where the de facto complainant resides with her family. According to the prosecution, the accused trespassed into the front hall room of the said house and attempted to commit theft of a purse containing money which was kept on a table there. After investigation, a report was filed before the Judicial First Class Magistrate Court-II, Alappuzha and trial was proceeded on that report wherein PWs 1 to 6 were examined and Exts. P1 to P4 were marked. Ext. D1 is the defence exhibit. The Trial Court finally found that the revision petitioner/accused is guilty under Sections 454 and 511/380 of IPC. On such conviction, the learned Magistrate sentenced the revision petitioner/accused to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 454 I.P.C. and to pay fine of Rs. 5000/- under Section 511/380 of IPC. The default sentence is fixed as six months simple imprisonment. The substantive period of sentence is ordered to run concurrently. Set off was allowed. 3. Challenging the above conviction and sentence, the petitioner herein had preferred an appeal, i.e., Crl. A. No. 501 of 2010. As the appeal was belated, Crl. MP No. 2660 of 2010 was also filed under Section 5 of the Limitation Act to condone the delay. Along with this Crl. Set off was allowed. 3. Challenging the above conviction and sentence, the petitioner herein had preferred an appeal, i.e., Crl. A. No. 501 of 2010. As the appeal was belated, Crl. MP No. 2660 of 2010 was also filed under Section 5 of the Limitation Act to condone the delay. Along with this Crl. RP, the petitioner had produced the order dated 10/11/2010 in Crl. A No. 501 of 2010 of the Court of the District and Sessions Judge, Alappuzha. No order in Crl. MP No. 2660 of 2010 is seen produced. The order in Crl. A No. 501 of 2010 reads as follows: Crl. MP 2660/10 filed under Section 5 of the Limitation Act is dismissed. So this appeal being beyond time is also dismissed. 4. Counsel for the revision petitioner submitted that the above order of the learned Sessions Judge is not legally sustainable since the same is not a speaking order and the contention of the petitioner for acquittal was not considered on merit. 5. On going through the order impugned, it appears to me that the contention of the learned counsel bears some force and substance. In the impugned, order, there is no reference to any of the facts and circumstances involved in the case. Probably, the petition filed under Section 5 of the Limitation Act was dismissed by a separate order. But, still then, in the order on the appeal, there is no reference as to what was the actual number of days of delay and on what ground, the said petition was dismissed. However, the Honourable Apex Court in the decision reported in Sita Ram v. State of Madhya Pradesh, 2003 KHC 2008 : AIR 2003 SC 4393 : 2002 AIR SCW 2643 : 2001 (3) CRIMES 364 : 2001 (5) Supreme 361 has held that dismissal of appeal against conviction on the ground of delay is not proper. 6. In the present case, the allegation against the petitioner is that he attempted to commit theft after lurking into the house of the de facto complainant. 6. In the present case, the allegation against the petitioner is that he attempted to commit theft after lurking into the house of the de facto complainant. So the prosecution has to prove the case beyond reasonable doubt and the question whether the prosecution has succeeded in discharging its duties is a matter to be considered during the trial and in the present case, the learned Magistrate of the Trial Court has come to a conclusion in favour of the prosecution and held that the accused has committed the offence. Of course, the appeal is the continuation of the trial where the convicted person will get one more opportunity to get appreciated the evidence and materials on record in a superior forum and such convicted person can raise the plea for acquittal and it is, thus, for the Appellate Court to consider the plea on merit. But, in the present case, the learned Sessions Judge without going into the merits of the case simply dismissed the appeal, not by a judgment, but by an order that too for the reason that the delay petition was dismissed. Therefore, according to me, the order impugned is not sustainable and the same is liable to be set aside, especially in the light of the decision of the Apex Court cited supra. In the result, this Criminal Revision Petition is disposed of setting aside the order dated 10/11/2010 in Crl. A No. 501 of 2010 and the matter is remitted back to the Court of District and Sessions Judge, Alappuzha for a fresh consideration and orders shall be passed on merit in terms of the above decision of the Honourable Apex Court. Accordingly, the Appellate Court is directed to restore the appeal on its file on 27th June, 2011 and to proceed with the hearing of the appeal and dispose of the same on merit. If the revision petitioner engages his own lawyer, such counsel shall be heard and if no lawyer is engaged, steps should be taken to appoint counsel from the panel of State Brief and to see that the appeal is disposed of as expeditiously as possible. If an application to suspend the execution of sentence is moved. It is for the Appellate Court to consider the same on merit and pass appropriate orders. The Criminal Revision Petition is disposed of as above.