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Madhya Pradesh High Court · body

2018 DIGILAW 819 (MP)

Aatamdas v. State of M. P.

2018-09-25

G.S.AHLUWALIA

body2018
JUDGMENT : 1. This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 26/12/2017 passed by First Additional Sessions Judge, Dabra, District Gwalior in an unregistered Criminal Appeal …./2017, by which the application filed by the applicant under Section 5 of the Indian Limitation Act was rejected. 2. The applicant was tried for an offence under Sections 294, 327, 323, 34 and 506 (Part-II) of IPC. Accordingly, he was convicted under Sections 327/34 and 323/34 of IPC by the trial court by judgment dated 19/6/2012 passed in Criminal Case No.404/2010. The applicant was released on bail for a limited period by the trial court, so that he can obtain a bail order/stay order from the superior court. It appears that the applicant did not file any appeal and went absconding. Thus, after the expiry of period of limited bail granted by the trial Court, the warrants were issued. It appears that thereafter the applicant filed a criminal appeal before the appellate Court with an application under Section 5 of the Indian Limitation Act. The appellate Court by order dated 26.12.2017 rejected the said application on the ground that the applicant has failed to give any sufficient reason for not filing the appeal within the period of limitation and consequently, the criminal appeal filed by the applicant was also dismissed as barred by time. 3. It is submitted by the counsel for the applicant that the appellate Court should have adopted a lenient view while entertaining the application under Section 5 of the Indian Limitation Act, as the applicant would suffer the penal consequences as he is in jail. To buttress his contentions, counsel for the applicant has relied upon the orders dated 31.01.2018, 02.02.2018 and 20.02.2018 passed by the Division Bench of this Court at Indore in Cr.A. Nos. 742/2018, 981/2018 and 649/2018 respectively. 4. Per contra, it is submitted by the counsel for the respondent/State that the applicant himself is negligent. The trial Court had granted bail to the applicant for a limited purpose so as to enable him to obtain the bail order/stay order from the superior Court but instead of filing criminal appeal and obtaining the bail order/stay order, the applicant went absconding and did not file the appeal and, therefore, he cannot take advantage of his own wrong. 5. Heard learned counsel for the parties. 6. 5. Heard learned counsel for the parties. 6. This Court is conscious of the fact that where a person has to face the penal consequences, then the application for condonation of delay has to be dealt with, with utmost leniency, but, the condonation of delay cannot be treated as a vested right of an accused, however, if he gives a plausible explanation for not filling the appeal within the period of limitation or if he discloses his inability to file such an appeal, then the delay in filing the appeal can always be condoned irrespective of the period of the delay, but in the present case, the only reason assigned by the applicant in his application under Section 5 of the Indian Limitation Act is that after the judgment was pronounced by the trial Court, he was assured by his counsel that he would file the appeal and would inform the applicant as and when the memo of appeal is ready. As the applicant is a labourer and he went outside the State of Madhya Pradesh in search of livelihood, therefore, he could not contact his counsel and thereafter the co-accused also told him that he has been acquitted and thus, under the bonafide belief that the applicant has also been acquitted, therefore, he did not file the appeal within the period of limitation. 7. The applicant has not disclosed the name of his counsel in his application for condonation of delay. Even the applicant has not stated that whether he has taken any action against his counsel for not filing the appeal in spite of his instructions or not? In fact, there is no contention to the effect that the applicant had ever instructed his counsel to file the appeal. The applicant has also not disclosed in his application for condonation of delay that when he was informed by the co-accused that he has been acquitted. Thus, in absence of sufficient cause for not filling the appeal within the period of limitation and specifically when the applicant was not in jail, then this Court is of the view that the trial Court did not commit any mistake in rejecting the application under Section 5 of the Indian Limitation Act taking into consideration the delay of five years and five months in filing the criminal appeal and that too after the issuance and execution of the arrest warrant. 8. 8. Although this Court has come to a conclusion that the applicant has failed to give any sufficient reason for not filing the appeal within the period of limitation and the trial Court has not committed any mistake in not accepting the reason assigned by the applicant for not filing the appeal within the period of limitation, but unfortunately, there is another aspect in the matter, which has not been argued by the counsel for the applicant. 9. Undisputedly, the applicant as well as the co-accused Kallu were convicted by the trial Court. Kallu had filed a criminal appeal which was allowed by the Court of Second Additional Sessions Judge, Dabra District Gwalior by judgment dated 04.08.2012 passed in Cr.A. No. 313/2012 giving a finding that although the present applicant is alleged to have assaulted the injured by means of an axe, but not a single injury was found on the body of any of the injured persons. Considering the allegations made against the co-accused Kallu, the appellate Court had acquitted him. Whether the findings given by the appellate Court in the appeal filed by the co-accused Kallu will have any bearing in the present case or not is a question which requires to be considered, but it is well established principle of law that if the appellate Court has come to a conclusion that the accused, who has filed an appeal, is entitled for acquittal and if the said benefit can be extended to an accused, who has not filed an appeal, then the non-appealing accused should not suffer only because of the fact that he could not file the appeal. The Supreme Court in Pawan Kumar v. State of Haryana reported in AIR 2003 SC 2987 , Raja Ram and Others Vs. State of M.P. reported in (1994) 2 SCC 568 , Centeral Bureau of Investigation v. Akhilesh Singh reported in AIR 2005 SC 268 and Sahadevan and another v. State of Tamil Nadu reported in AIR 2012 SC 2435 has held that where the Court disbelieves the entire incident then the benefit of the same should be extended to the non-appealing accused. 10. In the case of Basisth Roy and others v. State of Bihar, AIR 2003 SC 1439 the Supreme Court has held as under :- “4. 10. In the case of Basisth Roy and others v. State of Bihar, AIR 2003 SC 1439 the Supreme Court has held as under :- “4. However, learned counsel for the appellants relying on the judgment of this court in Dandu Lakshmi Reddy v. State of A.P., ( 1999 (7) SCC 69 ); Raja Ram and others v. State of M.P., ( 1994 (2) SCC 568 ), Akhil Ali Jehngir Ali Sayyad v. State of Maharashtra (2000 (2) JT SC 158) and Harbans Singh v. State of U.P. and others ( 1982 (2) SCC 101 ) contends that since we are allowing the appeal of these appellants on the ground that there is no material against any accused except the deceased accused Govind Rai and convicted accused Sahai Lohar, the benefit of the same should also go to Kamala Roy whose appeal has been dismissed at the stage of SLP for his non-surrender. We do not think on facts of this case at this stage, we should extend that benefit to the said accused Kamala Roy, leaving open such remedy as is available to him in law, we reject this request at this stage.” 11. Under these circumstances, considering the facts and circumstances of the case from the said point of view that the co-accused has been acquitted by the appellate Court by raising doubt on the very basic allegation made against the accused persons including the present applicant, this Court is of the view that the appellate Court should have allowed the application under Section 5 of the Indian Limitation Act on this ground. 12. Accordingly, the order 26/12/2017 passed by First Additional Sessions Judge, Dabra, District Gwalior is hereby set aside. The delay in filing the appeal is condoned. The matter is remanded back to the appellate Court to consider on merits of the case. 13. The revision succeeds and is hereby allowed.