Smt Shwetha Kiran vs Pooja Yadav
2022 Latest Caselaw 3871 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.84/2021

BETWEEN:

SMT.SHWETHA KIRAN
W/O KIRAN
AGED ABOUT 28 YEARS
R/AT NO.202, 1ST FLOOR
16TH CROSS, 4TH MAIN
CHAMUNDIVANA ROAD
VIDYARANYAPURAM
MYSURU-570 008.                           ... PETITIONER

              (BY SRI RUDRAPPA P., ADVOCATE)
AND:

POOJA YADAV
W/O H.M.DINESH
AGED ABOUT 22 YEARS
R/AT NO.63, 5TH MAIN, 6TH CROSS
NEAR SARVAJANIKA HOSTEL
VIDYARANYAPURAM
MYSURU-570 008.                          ... RESPONDENT

            (BY SRI AJAY PRABHU, ADVOCATE FOR
                 SRI B.S.SACHIN, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER PASSED IN CRL. APPEAL NO.248/2019 ON
THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS
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JUDGE, MYSURU, DATED 01.02.2020 AND SET ASIDE THE
JUDGMENT AND CONVICTION ORDER IN C.C.NO.1439/2015 ON
THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC AT
MYSURU, DATED 05.08.2019 AND TO RESTORE THE CRIMINAL
APPEAL IN CRL. APPEAL NO.248/2019 TO THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, WITH
A DIRECTION TO CONSIDER THE APPEAL ON MERITS BY GIVING
OPPORTUNITY FOR ARGUMENTS OF THE PETITIONER.

    THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Though this petition listed today for admission, with the

consent of both the Counsel, the matter is taken up for final

disposal.

2. This revision petition is filed under Section 397 read

with Section 401 of Cr.P.C., praying to set aside the order

passed in Crl.A.No.248/2019 dated 01.02.2020 by the II

Additional District and Sessions judge, Mysuru and the judgment

and conviction order in C.C.No.1439/2015 dated 05.08.2019 on

the file of IV Additional Civil Judge & JMFC., at Mysuru and

sought for the relief to restore the Crl.A.No.248/2019 with a

direction to consider the appeal on merits by giving an

opportunity for arguments of the petitioner and grant any other

relief as deems fit in the facts and circumstances of the case.

3. Having heard the respective counsel and also on

perusal of the material available on record, the Appellate Court

suspended the sentence subject to the following conditions that:

"The appellant shall deposit a sum of Rs.2,10,000/- before the Trial Court.

The appellant shall execute a bond with surety for a sum of Rs.10,50,000/- for appearance before the Trial Court to receive sentence if the order of sentence is confirmed by this Court.

The appellant shall comply this order on or before 04.10.2019 ..............."

In spite of the order, the amount was not deposited before the

Trial Court and periodically the time was extended on several

occasions. Ultimately, dismissed the Criminal Appeal on

01.02.2020. The Appellate Court while dismissing the appeal

noted that the matter was called thrice. The Appellant as well as

her Counsel are absent. The appellant has not proceeded with

the hearing of the appeal and has not appeared before the

Court. There are no grounds to grant further time. Hence,

dismissed the appeal for non-prosecution. Hence, the present

revision petition is filed.

4. Having considered the material available on record,

the Trial Court ought to have considered the matter on merits

instead dismissed the Criminal Appeal for non-prosecution. The

order sheet also reveals that the order was not complied with in

spite of periodically time was extended for compliance; on the

very next day calling the matter thrice, dismissed the appeal.

Hence, the order impugned is not sustainable in the eye of law

since the matter is not considered on merits and the same is

dismissed for non-prosecution. The matter requires to be set

aside and remanded to the Appellate Court to consider the

matter on merits. Hence, it requires an interference of this

Court.

5. It is also important to note that it is borne out from

the records that though an order was suspended subject to the

condition that the amount was not deposited before the Trial

Court and periodically time was extended, on a direction of this

Court, an amount of Rs.2,10,000/- was deposited before the

Trial Court. Having considered this is the C.C. of the year 2015,

and the appeal is of the year 2019 and it was disposed of in the

year 2020 for non-prosecution, the matter requires to be heard

and disposed of within a period of two months.

6. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is allowed.

(ii) The impugned order passed in Crl.A.No.248/2019 dated 01.02.2020 by the II Additional District and Sessions judge, Mysuru, is hereby set aside.

(iii) Restore Crl.A.No.248/2019 to the file of II Additional District and Sessions judge, Mysuru.

(iv) The parties are directed to appear before the Appellate Court on 21.03.2021.

(v) Both the counsel are directed to assist the Appellate Court for disposal of the matter within two months from the date of 21.03.2022.

Sd/-

JUDGE

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