Madras High Court
Kumutha vs John Kennedy on 21 September, 2023
Crl.O.P.(MD)No.16675 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.09.2023
CORAM:
THE HONOURABLE DR.JUSTICE D.NAGARJUN
Crl.O.P.(MD) No.16675 of 2023
Kumutha ... Petitioner
Vs.
John Kennedy ..Respondent
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to set aside the return docket order dated 21.07.2023 in
unnumbered C.A.SR.No.EC-TNTJ01-00884/2023 passed by the learned
Principal Sessions Judge, Thanjavur, and issue a direction, directing the
learned Principal Sessions Judge, Thanjavur, to take number the appeal
and suspension of sentence petition on file, filed by the petitioner and
consequently, proceed with the case in accordance with law within the
stipulated time.
For Petitioner : Mr.S.Balasubramanian
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Crl.O.P.(MD)No.16675 of 2023
ORDER
This Criminal Original Petition is filed seeking for setting aside
the docket order dated 21.07.2023 passed in
C.A.SR.No.EC-TNTJ01-00884/2023 by the learned Principal Sessions
Judge, Thanjavur and for a consequential direction to the learned
Principal Sessions Judge, Thanjavur, to take the appeal and suspension of
sentence petition on file and number the same.
2. According to the learned counsel appearing for the petitioner,
the petitioner was found guilty in S.T.C.No.38 of 2021 by the learned
Judicial Magistrate (Fast Track Court), Thanjavur, for the offence
punishable under Section 138 of Negotiable Instrument Act and was
directed her to undergo simple imprisonment for a period of one year and
pay a sum of Rs.2,75,000/- (Rupees Two Lakhs Seventy Five Thousand
only) as compensation within a period of one month, in default, the
petitioner shall undergo two months simple imprisonment. Aggrieved
over the same, the petitioner has preferred an appeal before the learned
Principal Sessions Judge, Thanjavur. However, the said appeal was
returned stating that non-bailable warrant was issued against the
petitioner by the trial Court.
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Crl.O.P.(MD)No.16675 of 2023
3. According to the learned counsel appearing for the petitioner,
when the judgment was pronounced by the learned Judicial Magistrate
(Fast Track Court), Thanjavur, on 21.06.2023 in S.T.C.No.38 of 2021, the
petitioner/convict was not present and thereby, the trial Court, while
pronouncing the judgment, has got issued the Non-bailable warrant. As
per Chapter-VI of the Code of Criminal Procedure, summons or warrants
will be issued to compel the accused to face the trial in the criminal case.
However, once the trial is completed, in case if the accused/convict is
absent, the trial Court is expected to issue commital warrant. However, in
the present case on hand, the trial Court has issued the Non-bailable
warrant.
4. Leaving the above facts aside, the convict is having a right to
prefer an appeal as per Chapter-XXIX of the Code of Criminal
Procedure. There is no law which prevents the convict to prefer an
appeal, when Non-bailable warrants or committal warrants are pending.
Therefore, when the convict has got a statutory appeal right, the
Appellate Court ought not to have returned the appeal on the ground that
the Non-bailable warrant issued by the trial Court is still pending. Once
the appeal is admitted, in case while considering the application for
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Crl.O.P.(MD)No.16675 of 2023
suspension of sentence, the Appellate Court is at liberty to grant a
conditional order directing the petitioner to surrender before the trial
Court. Therefore, on the ground that the Non-Bailable warrants are
pending, the statutory right of the appeal cannot be rejected.
5. In view of the above, the order passed in C.A.SR.No.EC-
TNTJ01-00884/2023 on 21.07.2023 by the learned Principal Sessions
Judge, Thanjavur is set aside and the petitioner is directed to file an
appeal before the Appellate Court, on which, the Appellate Court is
directed to consider and number the same, if it is otherwise in order and
pass appropriate orders.
6. Accordingly, this Criminal Original Petition is allowed.
Index : Yes/No 21.09.2023
Internet : Yes/No
ssb
Note: The Registry is directed to return the original documents, if any, to
the petitioner enabling her to represent the same before the Appellate
Court.
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Crl.O.P.(MD)No.16675 of 2023
DR.D.NAGARJUN. J.
ssb
Crl.O.P.(MD)No.16675 of 2023
21.09.2023
https://www.mhc.tn.gov.in/judis
