IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 Crl.Rev.Pet.No. 426 of 2011() ----------------------------------------- CRA.357/2010 of SESSIONS COURT, KASARAGOD CC.994/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 --------------------------------------------------------------------------- MANIKANTAN @ MANIYAN @ MUTHU, S/O.SHANMUKHAM,40 YEARS, THANKALPURAM, SHANKARAM KOVIL,TAMIL NADU. BY ADVS. SRI.SHANAVAS NALAKATH RANDUPURAYIL SRI.ANIL.D.KAITHAKKAL SRI.SAJU J.VALLYARA SRI.K.K.SUSHEER SRI. RAJESH SUKUMARAN.K RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------------- STATE, CIRCLE INSPECTOR OF POLICE, NILESHWAR, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K. MOHANAN, J. ------------------------------------------------- Crl.R.P.No. 426 of 2011 ------------------------------------------------- Dated this the 09th day of February, 2011 O R D E R The revision petitioner has faced the trial for the offence under Sections 457, 461 and 380 of IPC and he is convicted and sentenced by the trial court namely the court of the Judicial First Class Magistrate-1, Hosdurg by its judgment dt. 02.11.2009 in C.C.No.994/09. Though he had preferred an appeal challenging the above conviction and sentence, the appellate court by its judgment dt.22.12.2010 in Crl.A.No. 357/10 dismissed the appeal, as the appellate court has already dismissed the petition i.e. Crl.M.P. No.3031/2010 to condone the delay of 349 days. Thus the appellate court has dismissed his appeal as a belated one. 2. I have heard Sri.N.R. Shanavas learned counsel appearing for the petitioner and also the learned Public Prosecutor. 3. C.C.No.994/09 was instituted in the trial court on the basis of the report filed by the police in Crime No.136/04 of Chandera Police Station wherein the Crl.R.P.No. 426 of 2011 2 allegation is that, on 16.04.2004 the revision petitioner has committed theft of gold ornaments weighing 73/4 sovereigns, currency worth Rs.10,000/- by breaking open the lock of iron grill of the house of the defacto complainant and thus the accused has committed the offence punishable under Sections 457, 461 and 380 of IPC. During the trial, prosecution has adduced the evidence consisting of the oral testimony of PW1 to 10 and documentary evidence, Exhibit P1 to P9, and no materials were also identified and marked. No defence evidence was adduced. Finally the trial court found that the revision petitioner/accused is guilty and he is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5000/- under Section 380 of IPC and in default of payment of fine to undergo simple imprisonment for six months. Under Section 457 of IPC sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.3,000/- and in default to undergo imprisonment for four months and under Section 461 of IPC Crl.R.P.No. 426 of 2011 3 he is sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.2,000/- and in default he has to undergo imprisonment for a period of two months. 4. It is the above conviction and sentence challenged in Crl. appeal No. 357/2010. As the appeal was filed belatedly the petitioner had preferred Criminal M.P. No.3027/2010 to condone the delay. Along with the appeal the petitioner had also filed Crl.M.P.No.3032/10 to suspend the execution of the sentence. Learned Sessions Judge dismissed the above petition to condone the delay. Consequently, the appeal was also dismissed. The present revision petition is preferred against the above judgment of the appellate Court. 5. Learned counsel for the petitioner submitted that as the petitioner failed to arrange sureties for taking him on bail on the date of pronouncement of the judgment by the trial court, the petitioner was sent to jail which resulted in not filing the appeal in time. The learned counsel further Crl.R.P.No. 426 of 2011 4 submitted that the appeal was filed belatedly at the instance of the father of the petitioner who is having rheumatic complaint. Therefore according to the learned counsel the delay ought to have been condoned by learned Sessions Judge and the appeal ought to have been disposed of on merit. 6. Having regard to the facts and circumstances involved in the case it can be seen that the allegation against the accused is very serious and on the finding of the guilt of the revision petitioner the trial court has imposed a maximum sentence of three months under Section 457 of IPC. According to me, it is the right of the petitioner to file an appeal before the appellate court and to canvass an order for acquittal. However there is a delay of 349 days. 7. From the facts stated in the memorandum of the revision petition and on the basis of the submission of the learned counsel appearing for the petitioner it can be seen that the delay was not deliberate and therefore the court below Crl.R.P.No. 426 of 2011 5 ought to have condoned the delay. Even otherwise, the court can condone the delay on terms, including, awarding of cost. But the court below, without proper consideration of the prayer of the petitioner to condone the delay, simply dismissed the petition and thereby denied the right of the petitioner to have a fair hearing of his appeal on merit. According to me the judgment of the appellate court is liable to be set aside and petitioner can be given an opportunity to prosecute appeal on merit. As the counsel for the petitioner has submitted that the petitioner has already undergone imprisonment for a period of two years and seven months, I am of the view that the appellate court can be directed to dispose the appeal as expeditiously. 8. In the result this Crl.R.P is disposed of setting aside the judgment dated 22.12.2010 in Crl.A.No.357/2010 of the Sessions Court, Kasargode and the matter is remanded back to the same court for fresh consideration and to pass an order afresh. Considering the fact that the petitioner Crl.R.P.No. 426 of 2011 6 has already undergone imprisonment for two years and seven months, the appellate court is directed to hear and dispose of the appeal, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order, which shall be produced by the petitioner in the appellate court. V.K. MOHANAN, JUDGE. rkc