Sri Santhosh @ Yamme @ Harisha vs The State Of Karnataka
2022 Latest Caselaw 7243 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF MAY, 2022

                      BEFORE

   THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

        CRIMINAL PETITION No.4233 OF 2022

BETWEEN

SRI SANTHOSH @ YAMME @ HARISHA
AGED ABOUT 35 YEARS
S/O NAGARAJU
R/O BEHIND KEREKITTHANAHALLI
KADABAGERE CROSS
MAGADI ROAD
NEAR TAVAREKERE
BENGALURU DISTRICT - 562 162
                                     ... PETITIONER
[BY SRI. DHANANJAY KUMAR, ADV.)

AND

THE STATE OF KARNATAKA
BY TIPTUR TOWN POLICE STATION
REP. BY THE SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560001
                                   ... RESPONDENT
[BY SRI. SHANKAR H.S., HCGP.]

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO PASS AN ORDER BY
DIRECTING THE FIRST APPELLATE COURT TO CONSIDER
AND PASS ORDERS ON I.A.NO.1 FILED FOR SUSPENSION
OF SENTENCE AND BAIL IN CRL.A.NO.10004/2022
PENDING BEFORE THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE TIPTUR, TUMAKURU.
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     THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The petitioner is before this Court seeking a

direction to V Additional District and Session Judge,

Tiptur, Tumkur, to consider his application - I.A.No.1

filed in Crl. Appeal No.10004/2022 and pass

appropriate orders.

2. Heard Sri Dhananjay Kumar, learned counsel

for the petitioner and Sri Shankar H.S., learned High

Court Government Pleader for the respondent.

3. Brief facts of the case as projected by the

prosecution is that, on 06.12.2020, at about 4.30 p.m.,

the petitioner was arrested by the respondent - police

for the offences punishable under Section 380 and 454

of the IPC, on the allegation of theft in the house at

Kanchaghatta New Extension, 7th Cross, Tiptur. The

allegation against the petitioner is that he has

intentionally trespassed into the aforesaid house by

breaking the main grill gate with the help of an iron rod

and stealing 4 gold finger rings, 21 grams of 4 set of

gold earrings, 2 grams of ear chain and the same were

sold to CW.8. On these allegations, the aforestated

crime is registered.

4. After investigation, the police filed a charge

sheet before the Senior Civil Judge and JMFC, Tiptur, in

C.C.No.631/2021. The trial Court after hearing the

learned counsel for both parties and considering the

material on record, convicted the petitioner - accused

for the alleged offences, by its order dated 24.01.2022.

Challenging this judgment of conviction and order of

sentence, the petitioner preferred an appeal in

Crl.A.No.10004/2022 before the V Additional District

and Sessions Judge, Tiptur. During the pendency of

the appeal, he has also filed an application in I.A.No.1

praying to suspend the conviction and sentence and

bail. As the said application is not considered by the

appellate court, the petitioner has knocked the doors of

this Court in this petition.

5. Learned counsel for the petitioner submits that

the petitioner is in judicial custody since the

proceedings before the Appellate Court. Though

arguments are heard at length as addressed by the

petitioner's counsel, the application is neither

considered, nor a mention is made about the arguments

in the order sheet. There is an inordinate delay of

nearly three months in considering the application and

passing appropriate orders.

6. Learned High Court Government Pleader for the

respondent would submit that the objections has been

filed by the respondent - police and the application of

the petitioner will be considered by the Appellate Court

if some reasonable time is granted.

7. The facts of the case are not in dispute and are

not reiterated. Section 389(1) of Cr.P.C., reads as

follows:

"389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond."

In the light of the afore-extracted provision of law, it is

the right of the convicted person to file an application

pending disposal of an appeal and the learned Judge is

bound to consider the same and pass appropriate

orders. The delay in considering the application leads

to denial of a legal right of a convicted person. In the

light of the submissions made by the learned counsel

for both the parties, I deem it appropriate to direct the V

Additional District and Sessions Judge, Tiptur,

Tumkuru, to pass appropriate orders on the application

- I.A.No.1 preferred by the petitioner within a period of

two weeks, from the date of receipt of a copy of the

order.

8. The criminal petition thus stands disposed.

Sd/-

JUDGE

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