Puchalapalli Audaiah And ... vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1586 AP

       THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

            CRIMINAL REVISION CASE No.348 of 2010

ORDER:

This Criminal Revision Case, under Sections 397 and

401 Cr.P.C., is filed by two convicts assailing the order dated

05.02.2010 of the learned Principal Sessions Judge, Nellore in

Crl.M.P.No.108 of 2009.

2. In C.C.No.256 of 2006 filed by the Station House Officer,

IV Town Police Station (Law and Order), Nellore, these two

revision petitioners were prosecuted and after due trial, learned

Special Judicial Magistrate of First Class for trial of Prohibition

and Excise Offences, Nellore by a judgment dated 02.02.2007

found both of them guilty for the offence under Section 323

I.P.C. and each of them was convicted and sentenced to pay a

fine of Rs.1,000/- with a default sentence of Simple

Imprisonment for three months. Revision petitioner No.1 was

further convicted for the offence under Section 509 I.P.C. and

was sentenced to pay a fine of Rs.1,000/- with a default

sentence of Simple Imprisonment for three months.

3. The convicting judgment of learned Magistrate was

delivered on 02.02.2007. It seems that both the convicts

Dr. VRKS, J Crl.R.C.No.348 of 2010

intended to prefer an appeal but they failed to prefer the appeal

within time and therefore, they filed Crl.M.P.No.108 of 2009

before learned Principal Sessions Judge, Nellore seeking to

condone 731 days delay in presenting the criminal appeal.

State was shown as respondent in that application and it filed

its counter. After due hearing, by the impugned order the

learned Principal Sessions Judge, dismissed the application.

Aggrieved of that order, the present revision is filed.

4. Learned counsel for revision petitioners and learned

Special Assistant Public Prosecutor for respondent-State

submitted their arguments.

5. The point that falls for consideration is:

"Whether the impugned order suffers from illegality,

irregularity or impropriety requiring interference?

6. Point:

Before the learned Principal Sessions Judge the facts

presented by these revision petitioners indicate that they

instructed their lawyer to file the appeal and the lawyer by a

letter informed them that he preferred the appeal and it was

Dr. VRKS, J Crl.R.C.No.348 of 2010

pending. However, during the subsequent days they found that

the appeal was not pending. In fact the appeal was filed on

01.03.2007 and the office raised certain objections and returned

it on 06.03.2007. Their counsel took return of the bundle and

misplaced it. Copies of the appeal papers are available with the

revision petitioners. Since they entertained a genuine belief that

the appeal was preferred and pending, they could not act

otherwise until they realized that the appeal was not

resubmitted and therefore it was not pending. These facts were

shown as sufficient cause for condonation of 731 days delay.

7. On enquiring into this matter and after due hearing, the

learned Principal Sessions Judge refused to condone the delay

on the principal ground that the returned appeal papers were

never represented and the objections were never complied with

and all that set of papers were not brought to the Court and a

different set of appeal papers were filed. Finding fault with such

practice the learned Sessions Judge refused to condone the

delay. Referring to the letter said to have been addressed by the

earlier counsel to these revision petitioners, the learned

Principal Sessions Judge recorded that the contents of the letter

Dr. VRKS, J Crl.R.C.No.348 of 2010

do not indicate filing of any appeal at all. With those reasons

the petition for condonation of delay was dismissed.

8. In this revision, learned counsel submits that it was

misplacement of bundle that was the cause of delay and the

revision petitioners were not at fault, but it was the fault of their

counsel and for the fault of the counsel the revision petitioners

should not be punished. That the material submitted before the

learned Sessions Judge would have convinced him to condone

the delay. The grounds mentioned in the revision show that the

original memorandum of appeal, which was returned by the

Court, is not with the revision petitioners and it was not handed

over to them and it was for that reason they could not present

their papers. For these reasons, they sought for upsetting the

impugned order.

9. Learned Special Assistant Public Prosecutor submits that

the contentions raised in this revision are incorrect and the

observations made by the learned Principal Sessions Judge are

correct and there is no merit in this revision and seeks for its

dismissal.

Dr. VRKS, J Crl.R.C.No.348 of 2010

10. First revision petitioner was a Head Constable. Both the

revision petitioners were properly advised and defended during

the criminal prosecution before the learned Magistrate and they

have their own lawyer advising them and assisting them in

preferring their appeal against conviction. Parties to the case

are to conduct themselves in accordance with law.

11. Chapter No.7 of the Criminal Rules of Practice and

Circular Orders, 1990 (for short, 'Rules, 1990') provides the

manner in which criminal appeals are to be presented. For the

present case purpose, Rules 101 and 102 of Rules, 1990 are

relevant and they are extracted below:

"101. Presentation of Appeals:- Petitions of appeals from the convictions and orders passed by a Magistrate may be filed in the Court of Sessions by delivering the same to the Chief Ministerial Officer of that Court at any time during office hours. The said Officer shall at once endorse on the document the date of presentation and the serial Number.

102. Defective Petitions return for rectification:- Petitions and applications filed in the Court of Sessions should conform to the provisions of law. If any petition or application is found to be defective in any respect, it shall be returned to the party or Advocate concerned for amendment and representation within a specified time."

Dr. VRKS, J Crl.R.C.No.348 of 2010

12. According to the revision petitioners, on 01.03.2007

through their lawyer they presented the appeal and that was

within time but their appeal papers were found to be defective

and therefore for resubmission after rectification the appeal

papers were returned. By virtue of Rule 102 of Rules, 1990

referred above, it was their duty to rectify the errors and

resubmit those very appeal papers which were earlier returned.

They were not expected to file a new set of papers. If for any

reason they intended to file a new set of papers, they must

obtain the leave of the learned Principal Sessions Judge and

that new set of papers could be filed only along with the

returned appeal papers and not without the returned appeal

papers. Both by the averments in the petition filed before the

learned Principal Sessions Judge as well as grounds mentioned

in this revision the admitted position is that the original appeal

papers were never represented before the learned Principal

Sessions Judge. It is never the case of revision petitioners that

they sought specific permission from the learned Principal

Sessions Judge to file a new set of appeal papers. Thus, their

failure to comply with the rule is apparent. In such

circumstances, the refusal of the learned Principal Sessions

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Judge in entertaining the petition to condone the delay is

justified.

13. Both before the lower Court as well here the submission

made for revision petitioners is that the appeal papers were

returned by the Court and their counsel took return of them

and misplaced them. It is for that reason they could not file the

original papers. To accept this contention, one requires an

affidavit from the earlier counsel of the revision petitioners

showing that the bundle was misplaced. They did not file any

such affidavit of their counsel. It is not the case of revision

petitioners that the returned papers were with them.

14. According to revision petitioners, they did not take return

of the papers but it was their counsel. They have not filed any

written notice issued by them to their counsel demanding their

returned appeal papers. Thus, misplacement of loss of criminal

appeal papers and attributing the negligence to their own

counsel seems to be a ploy to overcome the gross negligence on

part of the revision petitioners. The order of the learned

Principal Sessions Judge is in accordance with reasons and

logic. There is absolutely no irregularity or illegality or

Dr. VRKS, J Crl.R.C.No.348 of 2010

arbitrariness in the impugned order. Revision petitioners failed

to indicate anything that could convince a revisional Court to

upset the said order. Point is answered against the revision

petitioners.

15. In the result, the Criminal Revision Case is dismissed

confirming the order dated 05.02.2010 of the learned Principal

Sessions Judge, Nellore in Crl.M.P.No.108 of 2009.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.348 of 2010

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.348 of 2010

Date: 21.03.2023

Ivd