IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.Rev.Pet.No. 3022 of 2009() ------------------------------ CRA.553/2006 of SESSIONS COURT, ERNAKULAM CC.941/2002 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER: APPELLANT/2ND ACCUSED: ------------------------------------------- SALIMAN @ SALI, S/O.MUTHUNAYAKOM, AYANTHITHOTTAM VEEDU, KARAKONAM DESOM, KUNNATHUKAL VILLAGE, NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENT: RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------------------- Crl.R.P.No.3022 of 2009 ----------------------------------------- Dated this the 2nd day of November, 2009. ORDER The revision petitioner is the second accused in C.C.No.941 of 2002 on the file of the Judicial Magistrate of the First Class-I, Kochi. He along with 6 others were prosecuted by the Circle Inspector of Police, Mattancherry in Crime No.54 of 2002 of Kannamaly Police Station alleging offence under Sections 120 B and 380 read with section 34 I.P.C. After trial the revision petitioner and others were found guilty for the said offences. Accordingly they were convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.2,000/-. 2. Aggrieved by the above conviction and sentence he preferred Criminal Appeal No.553 of 2006. There was delay in filing the appeal. Hence he preferred Criminal M.P.No.3550 of 2006, seeking an order to condone the delay. By order dated 14/8/2006, that petition was allowed on condition that the revision petitioner shall surrender before the trial court and produce the certificate to that effect within a fortnight. He didn't comply with the direction. Consequently, the petition to Crl.R.P.No.3022 of 2009 2 condone the delay was dismissed. The appeal was rejected as barred by limitation. Assailing the legality, correctness and propriety of the above order rejecting the appeal as barred by limitation, this revision petition was filed. 3. The learned counsel for the revision petitioner argued that the revision petitioner was not informed by the lawyer appearing before the appellate court about the conditional order and thus there occurred the default and the revision petitioner was denied justice because of the default on the side of the counsel appearing for the revision petitioner. It is also submitted that the revision petitioner is now undergoing the sentence and in the peculiar circumstance the revision petitioner may be given an opportunity to prosecute the appeal. 4. Having heard the learned counsel appearing for the revision petitioner and the Public Prosecutor, I find that in the interest of justice it would be appropriate to give an opportunity to prosecute his appeal, especially in the circumstance that he is in custody and undergoing the sentence in Central Prison, Thiruvananthapuram as evidenced by the certificate issued by the Superintendent, Central Prison, Thiruvananthapuram. Crl.R.P.No.3022 of 2009 3 5. In the result, this revision petition is allowed. The judgment of the appellate court dismissing the appeal as barred by limitation is set aside. It is recorded that though late, the revision petitioner had surrendered and thus he had complied the condition contained in Criminal M.P.No.3550 of 2006. Hence the delay in filing the appeal is condoned. The appellate court shall hear and dispose the appeal on merits. 6. The learned counsel for the revision petitioner sought for suspending the sentence. The revision petitioner is at liberty to move the appellate court for suspending the sentence, if so advised, which the appellate court shall dispose on merits. P.S.GOPINATHAN, JUDGE skj.