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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE V.SRISHANANDA
CRL.RP. NO. 105/2015
BETWEEN
1. SRI. INNA @ INNAYATH @
INAYATHULLA,
S/O. ATHAULLA KHAN,
AGED ABOUT 34 YEARS,
RESIDING AT NIZAM MOHALL,
HUNSUR TOWN,
MYSORE DISTRICT.
2. SRI. MOHID,
S/O. LATE BABA JAN,
AGED ABOUT 33 YEARS,
RESIDING AT NIZAM MOHALLA,
HUNSUR TOWN,
MYSORE DISTRICT.
... PETITIONERS
(BY SRI. N. SHANKARANARAYANA BHAT, ADVOCATE )
AND
STATE OF KARNATAKA
BY HUNSUR TOWN POLICE,
HUNSUR TOWN,
MYSORE DISTRICT.
...RESPONDENT
(BY SRI. RENUKARADHYA, HCGP/SPP )
THIS CRIMINAL REVISION PETITION IS FILED
U/S. 397 R/W 401 OF Cr.P.C. BY THE ADVOATE FOR
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THE PETITIONERS PRAYING TO SET ASIDE THE ORDER
PASSED BY THE COURT OF THE II ADDITIONAL
SESSIONS JUDGE, MYSORE, ON IA NO.1 IN CRL. A.
NO.82/2014 DATED 12.11.2014 AND CONSEUENTIAL
ORDER OF DISMISSAL OF THE APPEAL PASSED ON
18.11.2014 AND ALSO THE ORDER OF THE COURT OF
THE SENIOR CIVIL JUDGE AND JMFC, HUNSUR, IN CC
NO. 181/2008 DATED 13.02.2014 AND ALLOW THIS
CRIMINAL REVISION PETITION.
THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This revision is filed against the order dated 12.11.2014, passed by the II Additional Sessions Judge, Mysore, in Criminal Appeal No.82/2014, whereby the learned Judge has dismissed the appeal of the revision petitioners.
2. The brief facts which are necessary for disposal of this petition are as under:
2.1 The learned Magistrate viz., Senior Civil Judge and JMFC, Hunsur, on receipt of charge sheet in Crime No. 42/2008 of Hunsur Town Police Station, after securing the presence of the accused (revision petitioners) and on framing of the necessary charge in 3 CC No.181/2008, held the trial and convicted the accused (revision petitioners) for the offence punishable under Section 392 of IPC by order dated 13.02.2014. Being aggrieved by the said conviction order, the accused filed an appeal before the Court of the Principal District and Sessions Court at Mysuru, which is made over to the II Additional Sessions Judge, Mysuru, in Criminal Appeal No.82/2014. However, as there was delay of 18 days in filing the said appeal, the accused filed an application under Section 5 of the Limitation Act seeking for condonation of delay of 18 days in filing the appeal, with necessary affidavit. The learned Sessions Judge, on hearing the parties, has rejected the application filed by the accused under Section 5 of the Limitation Act and refused to condone the delay of 18 days vide order dated 12.11.2014, even after referring to the judgment of the Hon'ble Apex Court reported in (1987) 2 SCC 107 in the case of Collector, Land Acquisition, Ananthanag and another Vs. Mst. Katiji and others. It is that order, which is under challenge in this petition.
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3. This revision petition came to be admitted vide order dated 05.02.2015.
4. Heard Sri. N. Shankaranarayana Bhat, learned counsel appearing for the petitioners and Sri.Renukaradhya, learned HCGP on behalf of SPP, for appearing for the Respondent-State. Perused the records.
5. It is an admitted fact that, there was a delay of 18 days in filing the appeal before the Sessions Court by the revision petitioners. It is to be noted that the appeal is a right that is granted to the accused under the Statute and it is needless to emphasize that, it is a substantive right. Whenever the substantive right is to be adjudicated, the technical defense of delay should not be blown out of proportion. In the case on hand, the delay of 18 days is explained by the accused by way of an affidavit in support of the application contending that, the parents of the accused (revision petitioners) met the accused in jail and later on they collected the certified copy of the conviction order and thereafter 5 approached an advocate and in that process, there was a delay of 18 days. However, the learned Sessions Judge though referred to the judgment in Mst. Katiji's case cited supra, refused to condone the delay. Apart from the above decision, in catena of judicial pronouncements of the Hon'ble Apex Court would also rule that, while condoning the delay, the court should not adopt too pedantic approach and the Court must be liberal. It is needless to emphasize that, when the accused (revision petitioners) were convicted and they were sent to jail, they got a right to file Jail Appeal. But in the case on hand, the accused (revision petitioners) have preferred to file appeal through a private Advocate. Admittedly, the accused (revision petitioners) were holding the certified copy of the judgment with them, which was supplied to them at the time of passing the conviction order and their parents met them in jail and later on they have collected the certified copies of the judgment from them and thereafter approached an advocate to file appeal. Under such circumstances, the delay of 18 days which has occurred 6 in filing the appeal, in the considered opinion of this Court, is not a huge delay so as to disentitle the accused of his right of appeal. Suffice to say that the approach of the learned Sessions Judge in dismissing the appeal on the ground of delay by denying the substantive right granted by the Statute to the accused, cannot be countenanced in law. Therefore, it is a fit case where interference of this Court is necessary by exercising powers vested in it. Accordingly, the following order is passed:-
i) The revision petition is allowed. The order dated 12.11.2014 passed by the II additional Sessions Judge, Mysuru, on IA No.1 in Criminal Appeal No.82/2014, is set aside. The delay of 18 days in preferring the appeal is condoned and the appeal is remitted to the Sessions Court for disposal in accordance with law.
ii) Having regard to the fact that the appeal is of the year 2014, the First Appellate Court shall bestow its best attention to dispose of the same as early as possible, but not later than 31st October, 2021.
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iii) It is needless to emphasize that the parties shall render their fullest co-operation for early disposal of the appeal Sd/-
JUDGE KGR*