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Madhya Pradesh High Court · body

2020 DIGILAW 768 (MP)

Babloo @ Kamal Yadav v. State of M. P.

2020-08-04

SUBODH ABHYANKAR

body2020
ORDER 1. This criminal revision under sections 397/401 of the Code of Criminal Procedure has been preferred by the applicant being aggrieved by the judgment dated 24.1.2020 passed by the Second Additional Sessions Judge, Hoshangabad in Criminal Appeal No.5766/2019 by which the learned lower appellate Court has dismissed the application filed by the applicant under section 5 of the Limitation Act, 1963 for condonation of delay in filing the aforesaid Criminal Appeal No.5766/2019. The said criminal appeal was filed against the judgment dated 25.11.2011 passed in Criminal Case No.1442/2009 by the Judicial Magistrate First Class, Hoshangabad whereby the accused persons have been convicted under section 498A of IPC and sentenced to one year’s RI with fine of Rs.300/- each with default clause. 2. In brief the facts of the case are that the applicant’s marriage with the complainant was solemnized on 22.4.2007, however, on account of the cruelty meted out by the applicant and his family members to the complainant/wife an FIR under section 498A of IPC was lodged against them and subsequently after the charge sheet was filed, Criminal Case No. 1442/2009 was instituted. In the aforesaid case the applicant’s mother, father, sister and brother-in-law were also named and the learned Judge of the trial Court, after recording the evidence convicted all of them as aforesaid. However, after their conviction all the accused persons were released on bail and their sentence suspended by the learned Judge of the trial Court so that they could file an appeal before the lower appellate Court. 3. It appears that after being released from the jail, the present applicant did not file any appeal although all the other family members preferred CRA No.214/2011 under section 374(3) of Cr.P.C. before the Additional Sessions Judge, Hoshangabad, who vide its judgment dated 9.11.2012 has already acquitted them under section 498A of IPC. While acquitting the aforesaid accused persons the learned Judge of the lower appellate Court has held that the complainant has not been able to prove her case beyond reasonable doubt that the accused persons used to harass her or treat her with cruelty in order to procure dowry from her. While acquitting the aforesaid accused persons the learned Judge of the lower appellate Court has held that the complainant has not been able to prove her case beyond reasonable doubt that the accused persons used to harass her or treat her with cruelty in order to procure dowry from her. The record also reveals that after being released on bail in the Criminal Case No.1442/2009 as aforesaid, the applicant did not prefer any appeal as had been preferred by other his family members and thus was declared absconding and arrest warrant was issued against him. Pursuant to the said arrest warrant, he was arrested on 19.12.2019 and was sent to the Central Jail, Hoshangabad and thereafter preferred an appeal under section 374(3) of Cr.P.C. on 28.12.2019. The appeal so preferred by the applicant was filed after a delay of 8 years and one month for which an application under section 5 of the Limitation Act, 1963 for condonation of delay was also filed. In the aforesaid application it was stated that on account of false allegations levelled against the applicant he left home and also became mentally disturbed and thus he could not prefer the appeal within time and thus it was prayed that the delay so caused in filing the appeal be condoned. 4. The learned Judge of the lower appellate Court after considering the applicant’s application filed under section 5 of the Limitation Act came to the conclusion that along with the application for condonation of delay the applicant has not filed any document to demonstrate that he was in any manner mentally disturbed and thus held that the delay caused in filing the appeal cannot be condoned and the application for condonation of delay was dismissed and consequently, the appeal preferred by the applicant under section 374(3) of Cr.P.C. also came to be dismissed vide order dated 24.1.2020. The said order dated 24.1.2020 is under challenge before this Court. 5. The said order dated 24.1.2020 is under challenge before this Court. 5. Learned counsel for the applicant has submitted that the applicant was arrested on 19.12.2019 in the present case because after his conviction on 25.11.2011, he was released on bail but did not prefer the appeal and was declared absconding and since then he is in jail and as such he has already completed more than seven months’ imprisonment out of one year’s RI, thus, it is submitted that his sentence may be reduced to the sentence already undergone by him. Learned counsel for the applicant has further submitted that the appellate Court ought not to have dismissed the application for condonation of delay specially when the applicant was in jail and was mentally unfit to prefer the appeal in time. 6. On the other hand learned counsel for the State has opposed the prayer of the applicant and has submitted that no illegality has been committed by the learned Judge of the lower appellate Court in not condoning the delay of 8 years and one month in filing the criminal appeal. 7. Heard the learned counsel for the parties and perused the record. 8. On a close scrutiny of the record this Court finds that the learned Judge of the trial Court in its judgment dated 25.11.2011 in para 22 has observed that when the accused persons were heard on the question of sentence, no submissions were made on their behalf and even when the accused persons were asked in person as to if they have anything to say about their sentence, they did not reply to the aforesaid query as well. The aforesaid observation clearly reveals that the accused persons were not given proper legal assistance by their counsel defending them in the trial Court, which also indicates to their poor financial condition. This Court is also of the considered opinion that when against the judgment of conviction the appeal was preferred by the other co-accused persons who are also the parents of the present applicant and his sister and brother -in-law, there was no occasion for them not to implead the present applicant as one of the appellants before the lower appellate Court. However, it appears that the present applicant was actually missing from home which led to filing of the appeal by the other co-accused persons only to the exclusion of the applicant which finally resulted in their acquittal. This Court is of the opinion that it might be possible that the applicant was actually not in a mentally fit condition to prefer an appeal before the lower appellate Court as was stated by his parents on affidavit and merely if he was not able to produce any document regarding his mental illness, it cannot be said that he made a lame excuse to condone the delay in filing the appeal. This Court is also of the opinion that since the applicant belongs to the lower strata of society, he might not have the access to such documents to demonstrate that he was treated for his mental illness and thus, it can be assumed that he must have been prevented from producing the relevant document as sought by the learned Judge of the lower appellate Court, in view of the same the delay caused in filing the appeal ought to have been condoned. 9. Even otherwise, this Court is of the considered opinion that while considering an application for condonation of delay in filing the appeal by a prisoner against his conviction the Court should always be lenient as it relates to a person’s life and liberty. 10. In view of the aforesaid discussion, this Court is of the considered opinion that the impugned order dated 24.1.2020 of dismissal of application for condonation of delay and consequent dismissal of Criminal Appeal No.5766/2019 by the Second Additional Sessions Judge, Hoshangabad cannot be sustained in the eyes of law and is hereby set aside. 11. 10. In view of the aforesaid discussion, this Court is of the considered opinion that the impugned order dated 24.1.2020 of dismissal of application for condonation of delay and consequent dismissal of Criminal Appeal No.5766/2019 by the Second Additional Sessions Judge, Hoshangabad cannot be sustained in the eyes of law and is hereby set aside. 11. Normally this Court could have remanded the matter back to the learned Judge of the trial Court to adjudicate upon the merits of the case, however, looking to the fact that it is an old matter, as the criminal case itself was registered in the year 2009, which was decided on 25.11.2011 and the criminal appeal preferred by the other co-accused has already been allowed and they have been acquitted, the fact that the applicant has already undergone more than seven months out of one year’s sentence, this Court is of the considered opinion that without going into the merits of the case the interest of justice would be served if the matter is closed at this stage only by reducing the sentence so awarded by the learned Judge of the trial Court to the sentence already undergone by the applicant. 12. As a result, the instant criminal revision stands partly allowed, the impugned order dated 24.1.2020 is hereby set aside and the jail sentence of the applicant awarded by the learned Judge of the trial Court vide judgment dated 25.11.2011 is hereby reduced to the sentence already undergone by him. At present the applicant is in jail, he be released forthwith from the jail. 13. A certified copy of this order be sent to the trial Court for information and compliance.