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2012 DIGILAW 1130 (PAT)

Markandey Ojha v. State of Bihar

2012-08-16

AHSANUDDIN AMANULLAH

body2012
JUDGMENT : Ahsanuddin Amanullah, J. Heard learned counsel for the petitioner and Mr. Ratan Kumar Sinha who has filed Vakalatnama and appears on behalf of the father of the opposite party no. 2, who was the complainant and has since died. 2. The present revision application is directed against the appellate judgment and order dated 21.03.2002 passed by the 1st Additional Sessions Judge, Saran in Criminal Appeal No. 16 of 2002 by which the appeal has been dismissed as not maintainable since the complainant had not been made party in the appeal. 3. It appears that Vakalatnama had been filed on behalf of one Birendra Singh, son of late Jagat Narain Singh who has been further described in the body of the Vakalatnama as father of late Harishanker Singh, opposite party no. 2. However, from the records of the case, it appears that the opposite party no. 2 is Harishchandra Singh and not Harishanker Singh. Even from the copy of the complaint petition which has been annexed as Annexure-1 in the present revision application, the name of the complainant is Harishchandra Singh, son of Sri Birendra Singh. 4. Learned counsel for the petitioner submits that the only ground for non-consideration on merit of Criminal Appeal No. 16 of 2002 by the court concerned was that since the conviction and sentence of the petitioner was in a complaint case and the complainant, who was a necessary party, was not made a party, the appeal was dismissed as not maintainable. Learned counsel submits that the approach of the court concerned is erroneous since even if the complainant was not made a party, the substantive right of the petitioner to prefer the appeal could not be taken away and the court could have directed and given time to the petitioner to make the complainant a party and then could have heard the case on merits. However, non-hearing of the appeal on merits solely on the ground that the complainant was not made a party was not proper. 5. Learned counsel appearing for Birendra Singh who has described himself as father of the opposite party no. 2 though the name written in the body of the Vakalatnama is different, submits that the petitioner ought to substitute the name of the opposite party no. 2 and on this ground alone since the same has not yet been done, the present application is not maintainable. 2 though the name written in the body of the Vakalatnama is different, submits that the petitioner ought to substitute the name of the opposite party no. 2 and on this ground alone since the same has not yet been done, the present application is not maintainable. According to this Court, the said objection is not sustainable in view of the fact that on 26.11.2002 when learned counsel had filed Vakalatnama on behalf of Birendra Singh claiming to be the father of the opposite party no. 2, that is, the complainant, no such objection was raised and subsequently thereafter the case had been admitted to hearing on 10.11.2003. In that view of the matter and in view of the order which this Court proposes to pass, the objection raised by learned counsel appearing for Birendra Singh is overruled. 6. This Court is in agreement with learned counsel for the petitioner that the right of appeal is a substantive right and even if there are minor technical faults or errors on the part of the petitioner which are not of a nature justifying summary rejection of the appeal, the Court ought to have directed and granted time to the petitioner to add the complainant as a party and then should have proceeded to hear the case on merits. This not being done, this Court has no hesitation in setting aside the judgment and order dated 21.03.2002 passed in Criminal Appeal No. 16 of 2002 by the 1st Additional Sessions Judge, Saran. The matter is remanded to the court concerned for hearing Criminal Appeal No. 16 of 2002, upon revival, on merit. The petitioner shall appear before the court below within eight weeks from today along with a copy of this order and file an application for impleading the heirs of the complainant in the said appeal. The court thereafter shall pass necessary orders on the said application and issue notice to the heirs of the complainant and upon its due service, proceed to hear the case on merit and pass final judgment, expeditiously. 7. It appears that the petitioner was on bail during the pendency of the appeal and due to the requirement of his surrendering for the present criminal revision application to be taken by this Court, he surrendered on 06.11.2003 and subsequent thereto he was granted bail by order dated 10.11.2003 when the case was admitted to hearing. 8. 7. It appears that the petitioner was on bail during the pendency of the appeal and due to the requirement of his surrendering for the present criminal revision application to be taken by this Court, he surrendered on 06.11.2003 and subsequent thereto he was granted bail by order dated 10.11.2003 when the case was admitted to hearing. 8. In view of the aforesaid, the Criminal Appeal No. 16 of 2002 being revived, the bail granted to the petitioner during the pendency of the said appeal stands revived. 9. Accordingly, this Revision Application stands disposed off in the aforementioned terms. Revision disposed of.