Ashutosh Kumar Das vs State Of Bihar And Anr
2023 Latest Caselaw 2165 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL REVISION No.1023 of 2017
      Arising Out of PS. Case No.-943 Year-1996 Thana- BHAGALPUR COMPLAINT CASE
                                       District- Bhagalpur
     ======================================================

Ashutosh Kumar Das Son of Late Ramni Mohan Das, R/o Mohalla- Dalhatta, P.S.- Kotwali, District- Munger.

... ... Petitioner/s Versus

1. State of Bihar

2. Leena Das, wife of Ashutosh Kumar Das, resident of village- Mohaddinagar, Mirzanhat, P.S. Mojahidpur, Distt- Bhagalpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Pramod Kumar Pandey, Adv. For the Respondent/s : Mr. Narsingh Tanti, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 08-05-2023

Learned counsel for the petitioner and learned

A.P.P. for the State present.

Counsel for the petitioner submits that the present

criminal revision application has been filed against the judgment

and order of conviction dated 17.08.2016 passed by the learned

4th Additional Sessions Judge, Bhagalpur in Cr. Appeal No. 25

of 2006 arising out of judgment and order dated 07.03.2006

passed by the learned J.M. 1st Class, Bhagalpur in Complaint

Case No. 943 of 1996 by which the petitioner has been

convicted under Section 323 of the I.P.C. for six months and

under Section 498A of the I.P.C., simple imprisonment for two

years. It was also directed that sentence shall run concurrently Patna High Court CR. REV. No.1023 of 2017 dt.08-05-2023

and the period of custody may be set off.

Counsel for the petitioner submits that the order

impugned is basically an illegal order and passed in gross

violation of Section 385 and 386 of the Cr.P.C. contending that

the appellant was not appearing since last many days but all of a

sudden on 17.08.2016, Court without hearing the arguments of

the counsel for the appellant has passed order on merit.

Therefore, according to him, the said impugned order should be

set aside and matter be remitted back before the Appellate Court

to pass order after complying the provisions laid down under

Sections 385 and 386 of the Cr.P.C.

Counsel for the State submits that from the record,

particularly, from Annexure-3 i.e. order dated 17.08.2016 and

from the order of different dates prior to the said date of

judgment in Cr. Appeal No. 25 of 2006, which is part and parcel

of the original records that appellant was not appearing since

last many days and the order impugned has been passed without

hearing the parties.

It transpires from the record that notices were

issued upon O.P. No. 2 in this case on 13.02.2018.

Counsel for the O.P. No. 2 has appeared through

Vakalatnama but today, at the time of hearing, he is not present Patna High Court CR. REV. No.1023 of 2017 dt.08-05-2023

before the Court to defend his stand.

After going though the provisions of Sections 85

and 86 of the Cr.P.C. which narrates as follows:

"85. Release, sale and restoration of attached

property.- (1) If the proclaimed person

appears within the time specified in the

proclamation, the Court shall make an order

releasing the property from the attachment.

(2) If the proclaimed person does not

appear within the time specified in the

proclamation, the property under the

attachment shall be at the disposal of the State

Government; but it shall not be sold until the

expiration of six months from the date of the

attachment and until any claim preferred or

objection made under Section 84 has been

disposed under that section, unless it is

subject to speedy and natural decay, or the

Court considers that the sale would be for the

benefit of the owner; in either of which cases

the Court may cause it to be sold whenever it

thinks fit.

Patna High Court CR. REV. No.1023 of 2017 dt.08-05-2023

(3) If, within two years from the date of

the attachment, any person whose property is

or has been at the disposal of the State

Government, under sub-section (2), appears

voluntarily or is apprehended and brought

before the Court by whose order the property

was attached, or the Court to which such

Court is subordinate, and proves to the

satisfaction of such Court that he did not

abscond or conceal himself for the purpose of

avoiding execution of the warrant, and that he

had not such notice of the proclamation as to

enable him to attend within the time specified

therein, such property, or, if the same has been

sold, the net proceeds of the sale, or, if part

only thereof has been sold, the net proceeds of

the sale and the residue of the property, shall,

after satisfying therefrom all costs incurred in

consequence of the attachment, be delivered to

him.

86. Appeal from order rejecting application

for restoration of attached property.- Any Patna High Court CR. REV. No.1023 of 2017 dt.08-05-2023

person referred to in sub-section (3) of Section

85, who is aggrieved by any refusal to deliver

property or the proceeds of the sale thereof

may appeal to the Court to which appeals

ordinarily lie from the sentences of the first-

mentioned Court."

Upon going through the records that the present

petitioner who is appellant there, was not appearing consistently

since last many days. Even then the Court has passed final order

in which a single word has not mentioned that whether appellant

has argued or not argued the case.

In this view of the matter, the judgment and order

of conviction dated 17.08.2016 passed by the learned 4th

Additional Sessions Judge, Bhagalpur in Cr. Appeal No. 25 of

2006 arising out of judgment and order dated 07.03.2006 passed

by the learned J.M. 1st Class, Bhagalpur in Complaint Case No.

943 of 1996 is hereby set aside and the Appellate Court is

directed to hear the appellant, State and informant fixing a date

within three months from today and pass order on merit.

It is made clear that appellant and informant both

shall appear before the Trial Court on the date fixed. If the

appellant shall start evading his appearance, then the Sessions Patna High Court CR. REV. No.1023 of 2017 dt.08-05-2023

Court is directed to appoint advocate through Legal Services

Authority and upon hearing him, pass the final order/ judgment

without fail within three months from today.

With this observation, the present criminal revision

application stands allowed.

(Dr. Anshuman, J.) sadique/-

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