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2022 DIGILAW 620 (JHR)

Ramdular Vishwakarma v. State of Jharkhand

2022-06-09

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. I.A. No. 8468 of 2019: 2. This interlocutory application has been filed for condonation of delay of 405 days under Section 5 of the Limitation Act. 3. Learned counsel for the petitioners submits that they are poor persons and used to go outside the State of Jharkhand for their livelihood and that is the reason they were not able to contact the counsel and even the pairvikar could not inform them. It is only on 01.05.2019 it was informed by the Chaukidar of the village about the case and thereafter they procured the certified copy and filed the revision application. They are having a good case and delay is not intentional, as such delay may be condoned. 4. In view of the averments made in the interlocutory application, I.A. No. 8468 of 2019 is allowed and disposed of. Cr. Revision No. 645 of 2019: 5. The instant criminal revision application has been preferred by the petitioners assailing the judgment dated 06.01.2018, passed by the learned Additional Sessions Judge-VI, Palamau at Daltonganj, in Criminal Appeal No. 57 of 2012; whereby the appeal filed by the petitioners has been dismissed for non-prosecution and the judgment of conviction and order of sentence, both dated 05.05.2012, passed by the learned Judicial Magistrate 1st Class, Palamau, in connection with Hussainabad P.S. Case No. 89 of 2002, corresponding to G.R. No. 584 of 2002 (T.R. No. 50 of 2012), whereby the learned trial court has convicted the petitioners for the offence under Section 406 of the Indian Penal Code and sentenced them to undergo simple imprisonment for one year and six months and fine of Rs.2,000/- each and in default of fine the petitioners were directed to undergo further simple imprisonment for one month and simple imprisonment for three years and fine of Rs.3,000/- each under Section 420 of the Indian Penal Code and in default of fine the petitioners were directed to undergo further sentence for three months and both the sentences were directed to run concurrently. 6. Learned counsel for the petitioners submits that the appeal has been dismissed for default as appellants’ counsel did not participate in the proceeding and due to that reason the learned appellate court has dismissed the application for non-prosecution. He further submits that the learned appellate court has committed gross error in dismissing the appeal without hearing the petitioners. 6. Learned counsel for the petitioners submits that the appeal has been dismissed for default as appellants’ counsel did not participate in the proceeding and due to that reason the learned appellate court has dismissed the application for non-prosecution. He further submits that the learned appellate court has committed gross error in dismissing the appeal without hearing the petitioners. At best he could have appointed another counsel/amicus to assist the Court. In no way, he could have dismissed the appeal for non-prosecution. 7. As such, this application may be allowed and the case may be remitted back to the appellate court with a direction to hear the petitioners and pass an appropriate order after giving opportunity. 8. Per contra, learned APP opposed the prayer of the petitioners and submits that the petitioners should surrender before the court below before getting any order. As a matter of fact, when the appeal of the petitioners was dismissed and bail bond was cancelled, petitioners were directed to surrender forthwith before learned trial court to serve rest of the sentence passed by the learned court below. He fairly submits that admittedly; the appeal has not been decided on merit. As such, the case may be remitted back to the appellate court but the petitioners may be directed to surrender before the court below. 9. Having heard learned counsel for the parties and after going through the order dated 06.01.2018 passed by the learned appellate court it clearly transpires that the appeal has been dismissed for non-prosecution. It further transpires that though the appeal was admitted on 04.06.2012, however, even after several adjournments learned counsel for the appellants did not bother to press the appeal and forced with this situation the learned appellate court has dismissed the appeal. 10. Be that as it may; admittedly appeal has not been decided on merit, as such interest of justice would be sufficed if the case is remitted back to the court of learned Additional Sessions Judge-VI, Palamau to decide the appeal on merit. In this regard reference may be made to the judgment passed in the case of Christopher Raj vs. K. Vijayakumar reported in (2019) 7 SCC 398 wherein the Hon’ble Apex Court has held in paragraph 8 as under : “8. Admittedly, the appellant-accused did not appear in the criminal appeal before the High Court. In this regard reference may be made to the judgment passed in the case of Christopher Raj vs. K. Vijayakumar reported in (2019) 7 SCC 398 wherein the Hon’ble Apex Court has held in paragraph 8 as under : “8. Admittedly, the appellant-accused did not appear in the criminal appeal before the High Court. When the accused has not entered appearance in the High Court, in our view, the High Court should have issued second notice to the appellant-accused or the High Court Legal Services Committee to appoint an advocate or the High Court could have taken the assistance of Amicus Curiae. When the accused was not represented, without appointing any counsel as Amicus Curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits; more so, when the appellant-accused had the benefit of acquittal. The High Court erred in reversing the acquittal without affording any opportunity to the appellant-accused or by appointing an Amicus Curiae to argue the matter on his behalf.” 11. In view of the aforesaid discussion and the judgment referred hereinabove, the instant application is allowed. The case is remitted back to the court of learned Additional Sessions Judge-VI, Palamau who was hearing the criminal appeal No.57 of 2012 and the learned appellate court is directed to dispose of the appeal on merit preferably within six months from the date of receipt of the order. However, it is clarified that the petitioners shall surrender before the learned trial court on any day within a period of two months from today and his bail application will be decided on its own merit and it is only after their surrender, the appellate court shall proceed to hear the appeal on merit. 12. Let the copy of this order be communicated to the courts below and also to the petitioners through officer-in-charge of the concerned police station.