Kewal Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 17777 MP

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 26 th OF OCTOBER, 2023
                 CRIMINAL REVISION No. 3327 of 2023

BETWEEN:-
KEWAL SINGH S/O LATE SHRI LAXMAN SINGH
AADIWASI, AGED ABOUT 29 YEARS, OCCUPATION:
LABOUR R/O VILLAGE KAKARUWA P.S. SILWANI DISTT.
RAISEN (MADHYA PRADESH)

                                                              .....APPLICANT
(BY SHRI SHAHNAWAZ KHAN - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION SILWANI DISTRICT RAISEN (MADHYA
PRADESH)

                                                            .....RESPONDENT
(BY SMT. PRIYANKA MISHRA - GOVERNMENT ADVOCATE)

      Heard on        : 20.10.2023
      Pronounced on: 26.10.2023

      This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                  ORDER

T h is criminal revision has been filed against the order passed on 13.7.2023 in criminal appeal registered as UNCR 74/2023 decided by Additional Judge to First Additional Sessions Judge, Begumganj, district Raisen. By this judgment, the appeal preferred by the applicant against the judgment of conviction and sentence passed in RCT No.95/2017 on 29.6.2018 by Judicial Magistrate First Class, Silvani, district Raisen, was dismissed as

time barred and the judgment of trial court was accordingly upheld.

2. The brief facts of the prosecution case are that the applicant and the co-convict had a dispute with complainant Hamid Khan on 1.4.2017 at around 12:00 hours when they tried to take their bullock cart through his agricultural field; this dispute resulted into a physical assault in which the applicant and the co-convict Hakam Singh caused injuries to Hamid Khan and also to Ramprasad who came to intervene in the matter; the applicant and the co-convict both were held guilty of an offence of Section 323 (on two counts) IPC and were sentenced to six months rigorous imprisonment and fine amount of Rs.300/- under each head of conviction. From the appeal preferred by the applicant, it

appears that he deposited the fine amount in compliance of the decision of trial court but did not file any appeal in time before a competent court to challenge his conviction and jail sentence; the trial court issued arrest warrant after the expiry of the period of suspension of sentence and on arrest the applicant was sent to jail on 2.6.2023 i.e. almost five years after the judgment passed by the trial court; while suffering jail term, the applicant preferred an appeal to the Sessions Court, which was dismissed by impugned order as time barred and accordingly the appeal was also dismissed.

3. The grounds raised in this revision are that the learned appellate court acted hyper-technically to dismiss the appeal on the ground of delay; no substantial justice was done by disposing of the matter summarily; the learned appellate court failed to appreciate the legal proposition as held in the cases of Collector, Land Acquisition, Anantnag, and another v. Mst. Katiji and others AIR 1987 SC 1353 and Balwant Singh (dead) v. Jagdish Singh and others (2010) 8 SCC 685. The applicant in this case is a labour who does not

know the intricacies of law. By depositing the fine amount, he thought that the matter had ended because he was not advised by his lawyer to file any appeal. Only after his arrest, he came to know about the legal position that an appeal was supposed to be preferred against the judgment of the trial court. The reason for delay is bona fide. Further, the prosecution case is based upon the testimonies of interested witnesses. The applicant was falsely implicated in the case. The seizure of club has not been duly proved. The injuries caused to the victim were the result of falling on ground from a height. The trial court ignored these material contradictions and omissions. It is, therefore, prayed that the criminal revision be allowed and the judgments of conviction and sentence passed by the courts below be set aside.

4 . State has opposed the present revision claiming that the act of applicant was rightly punished on the basis of evidence and law applicable in the facts of the case, hence no interference is warranted.

5. Both the parties have been heard and the records of the courts below have been perused.

6 . The impugned order passed by the learned appellate court has two limbs - first, it relates to rejection of application filed under Section 5 of the Limitation Act, and second is the dismissal of appeal itself. So far as the dismissal of application of Section 5 of the Limitation Act is concerned, it has

been claimed by the applicant even before the appellate court that he was under impression that by depositing the fine amount, his case had come to an end and he did not have to litigate it any further. His claim is that his counsel did not advise him that he was supposed to file the appeal to challenge the finding of conviction and jail sentence. That application is supported with the affidavit of wife of applicant. The impugned order reveals that the learned appellate court

was of the impression that the signature of applicant on the order sheet of the trial court was sufficient to dismiss his contention. Further, it was the observation of the appellate court that applicant was a literate person. First of all, putting the signature does not itself suggest that the person making these signatures is a literate person. Further, what was the level of his education is not at all inquired into by the appellate court. Finally, the legal intricacies are not known to many educated persons, hence it was too inapt to assume that the applicant was having legal acumenship. It has been claimed by the applicant that his counsel did not advise him to file the appeal and this fact remained unchallenged before the appellate court. Still the impugned order does not refer to this claim and decide it on merits.

7. In the light of above discussion, this court is of the opinion that the application under Section 5 of the Limitation Act was wrongly dismissed by the learned appellate court and the learned appellate court should have heard the appeal on merits by allowing it.

8. Now comes the second part of the impugned order. By passing this order, the learned appellate court dismissed the appeal itself. The counsel for applicant has challenged this part of the order as well, in criminal revision the court does not usurp the jurisdiction of an appellate court. The settled legal position is that where appellate court dismisses an appeal for default or non- prosecution or for any other like reason, i.e. without going into the merits of the case, the High Court in revision can remand back the case to the appellate court. Considering this legal position that the revisional Court cannot usurp the jurisdiction of an appellate Court, an order of remand of the case to the appellate court would be the legally appropriate order, but here the prayer of

learned counsel for applicant is that he is not challenging the conviction recorded by the trial court and he is simply praying for reduction of jail term.

9 . The record shows that the applicant is in custody since 12.6.2023 against a jail term of six months rigorous imprisonment awarded under two counts of Section 323 IPC and both jail terms are ordered to run concurrently. Thus, against a maximum term of six months rigorous imprisonment, the applicant has already suffered jail sentence of more than four and a half months. Thus, a prayer for jail term of undergone sentence is requested with a further plea that the amount of fine may be enhanced.

10. I have considered the factual and legal position of the case and I am of the opinion that remanding the case to the learned appellate court only on the point of sentence would tantamount to injustice to the applicant who has already faced an incarceration of jail sentence for a period of four months and 23 days.

11. Consequently, this criminal revision is partly allowed and the conviction of applicant recorded by the Judicial Magistrate First Class under two counts of Section 323 IPC is hereby affirmed. Under those two heads of conviction, his jail sentence is reduced to the period already undergone while the fine amount is enhanced to Rs.1,000/- under each head. Against this fine amount, the payment already made under the head shall be adjusted. In case, the applicant fails to deposit the fine amount within 15 days from the date of this judgment, in case not paid yet, he shall undergo the remaining part of his jail sentence. From the deposited fine amount, Rs.1,000/- be paid to each of the injured persons, namely Hamid Khan and Ramprasad.

12. The appellant is in custody. He be released immediately, if not required in any other case.

13. The records of the courts below be send back immediately to the

concerned courts along with a copy of this order for necessary action and compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.10.27 15:11:44 +05'30' Adobe Reader version: 11.0.8