Sri. Inna @ Innayath @ vs State Of Karnataka
2021 Latest Caselaw 392 Kant

                         1



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
                              2



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

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.

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

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

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.

iii) It is needless to emphasize that the parties shall render their fullest co-operation for early disposal of the appeal

Sd/-

JUDGE

KGR*