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2017 DIGILAW 251 (MP)

Ayyub v. State of Madhya Pradesh

2017-02-15

ALOK VERMA

body2017
ORDER : Alok Verma, J. This application under Section 482 Cr.P.C. is directed against the order passed by learned First Additional Sessions Judge, Dhar, in Criminal Revision No. 1300064/2016 dated 17.10.2016 whereby, learned Additional Sessions Judge dismissed criminal revision filed by the present applicants against the order passed by learned Chief Judicial Magistrate, Dhar, in Criminal Case No. 364/2016 dated 21.04.2016 whereby, the learned Chief Judicial Magistrate framed charges against the present applicants under Section 406/34 of IPC. 2. The brief facts for disposal of this application are that when the impugned order dated 21.04.2016 was passed, the present applicants were not personally present before the Court and their presence was marked through their counsel. Charges were framed and their plea was recorded through the lawyer only. The lawyer did not inform them that the charges were framed, and subsequently, the present applicants came to know about the order only on 17.06.2016. After coming into the knowledge of the impugned order, they filed the revision against the order and also filed an application under Section 5 of Limitation Act to condone the delay. 3. While dealing with the application filed under Section 5 of the Limitation Act, the learned Additional Sessions Judge observed that from the order-sheet of the trial Court, it was apparent that the advocate representing the present applicants was present, when the impugned order was passed by learned Chief Judicial Magistrate. The whole proceedings took place in presence of the advocate appointed by the present applicants. It was nowhere apparent that the advocate was not authorised to represent the applicants in their absence, and therefore, it could not be accepted that the present applicants had no knowledge of the order. When an advocate appeared to represent an accused, it is presumed that the accused himself had all the knowledge of the proceedings that took place when he was not physically present before the Court and when he was represented by the counsel. 4. The learned Additional Sessions Judge observed that even after knowing about the order on 17.06.2016, the present applicants did not file the criminal revision. Immediately, the criminal revision was filed only on 07.09.2016 along with an application under Section 5 of Limitation Act. The learned Additional Sessions Judge observed that the delay was not properly explained. 4. The learned Additional Sessions Judge observed that even after knowing about the order on 17.06.2016, the present applicants did not file the criminal revision. Immediately, the criminal revision was filed only on 07.09.2016 along with an application under Section 5 of Limitation Act. The learned Additional Sessions Judge observed that the delay was not properly explained. The reason for delay given by the present applicants was not sufficient and acceptable, and therefore, the learned Additional Session Judge proceeded to dismiss the application under Section 5 of the Limitation Act. Consequent upon dismissal of the application under Section 5 of the Limitation Act, the revision was dismissed as time barred. 5. Learned counsel appearing for the applicants submits that he should be given a chance to argue the matter on merit. In his opinion, no charge is made out under Section 406/34 of IPC, and therefore, according to him the present applicants would suffer serious injustice if they were not given a chance to fight the case on merit. 6. Learned counsel for the State opposed the argument put forth by learned counsel for the applicants and submits that the revision is baseless and should be dismissed. 7. I have gone through the orders passed by learned Additional Sessions Judge, it is apparent that the present applicants remained absent before the Court, when the charges were framed. If in their opinion, prima facie no case was made out against them then it was their duty to remain present on all the dates fixed by learned trial Court. They chose to remain absent as per their convenience. They allowed the advocate to represent them and when charges were framed, now they come before this Court crying that serious injustice have been done to them. 8. In my opinion, they could not be allowed to take advantage of process of the Court. On one hand, they sought exemption from personal appearance and when they were granted such exemption and Court allowed their presence marked through their counsel, now they are challenging the order passed by the Court and that too by delay. In considered opinion of this Court, the application under Section 5 of Limitation Act was rightly dismissed by the learned Additional Sessions Judge and no case is made out for any interference in the impugned order. This apart, at this stage only charges were framed. In considered opinion of this Court, the application under Section 5 of Limitation Act was rightly dismissed by the learned Additional Sessions Judge and no case is made out for any interference in the impugned order. This apart, at this stage only charges were framed. The present applicants would get ample opportunity to show that no charge under Section 409 was made out, when the case was heard on merit. The charges were framed only on the basis of prima facie evidence available on record, and therefore, even otherwise, no prejudice is caused to them, if charges were framed against them. In this view of the matter, I find that this revision is devoid of any merit and liable to dismissed, and dismissed accordingly.