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2014 DIGILAW 857 (MP)

Arjun Namdeo v. State of M. P.

2014-07-22

SUSHIL KUMAR GUPTA

body2014
Judgment: Sushil Kumar Gupta, J. 1. Case is listed today for admission. With the consent of the parties, matter is heard finally. 2. This criminal revision petition under Section 397 read with Section 401 of Cr.P.C. is filed by the petitioner/accused Arjun Namdeo to set aside the order dated 23-1-2007 in unregistered Case No. 0/07 (Arjun Namdeo vs. State of M.P.) passed by learned Additional Sessions Judge, Gadarwara whereby the application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was dismissed and consequently criminal appeal came to be dismissed as barred by time. 3. The revision petitioner Arjun Namdeo was convicted by the Judicial Magistrate, First Class, Gadarwara by order dated 14-12-2006 under Sections 354 and 457 of IPC and has been sentenced to undergo RI for six months and fine of Rs. 2000/-; in default further SI for one month in each section. 4. Being aggrieved by the judgment of conviction and sentence, he preferred an appeal before the learned First Additional Sessions Judge, Gadarwara. Since there was a delay of six days in filing the appeal, petitioner/accused filed an application under Section 5 of the Limitation Act for condonation of delay. Application was heard by the learned Additional Sessions Judge and by order dated 23-1-2007, application under Section 5 of the Limitation Act for condonation of delay in filing the appeal has been dismissed holding that no sufficient cause has been made out for condonation of delay. Consequently, the appeal filed by the petitioner/accused also came to be dismissed. 5. Challenging the legality and correctness of the impugned order dated 23-1-2007 for condonation of delay and dismissal of the appeal, this revision is preferred. 6. I have heard learned Counsel for the accused/petitioner and learned Government Advocate for the State. 7. It is seen that in the impugned order that the delay in filing the appeal was only six days. The grounds made out for condonation of delay were not convincing, of course according to the learned Additional Sessions Judge but having regard to the fact that he has been convicted for the offences punishable under Sections 457 and 354 of IPC he is sentenced, the learned Additional Sessions Judge ought to have condoned the delay and give him an opportunity to put forth the case before the Appellate Court. The appeal is a statutory remedy available to the accused. 8. The appeal is a statutory remedy available to the accused. 8. It is true that delay was of only six days and the grounds on which the delay was caused was also sufficiently explained by medical certificate and supported by his own affidavit. If the petitioner/accused is able to establish that he has a prima facie case for acquittal in appeal, the appeal ought not to be thrown out on the technical grounds. It is always better to dispose of the case on merits rather than to dismiss the same on technical grounds. No hardship would be caused to the State if an application is allowed and an opportunity is given to the accused/petitioner who is undergoing sentence to put forth his case before the Higher Court for re-appreciation of evidence. 9. For this reason it appears to me that it is a fit case to condone the delay and to remand the matter with a direction to hear the appeal and dispose it of on merits. Hence, the revision petition is allowed. The impugned order dated 23-1-2007 in unregistered Case No. 0/07 (Arjun Namdeo vs. State of M.P.) passed by the learned First Additional Sessions Judge, Gadarwara rejecting the application under Section 5 of the Limitation Act and dismissal of the criminal appeal is hereby set aside. 10. In such premises, the application filed under Section 5 of the Limitation Act before learned First Additional Sessions Judge, Gadarwara for condonation of delay filed along with criminal appeal is allowed. The delay of six days in filing the criminal appeal is hereby condoned. Court below is directed to dispose of the appeal on merits. Accordingly, revision stands allowed and disposed of.