IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 CRL.REF.No. 8 of 2009 ----------------------- CRL.A.NO.1014/2008 OF SESSIONS COURT, KOZHIKODE CRL.A. NO.720/2008 OF SESSIONS COURT, KOZHIKODE. --------------------------------------- SUO MOTU RESPONDENTS: ---------------------- 1) ACHUTHA LAL, S/O.V.P.SANKARA, AGED 62 YEARS, MANANTHALA VAYAL, ERANHIPALAM, KOZHIKKODE. 2) KUMARAN, S/O.APPUKUTTY, AGED 82 YEARS, KARANGATT HOUSE, NADAKKAVU, KOZHIKKODE. 3) STAE OF KERALA. R1 BY ADV. SRI.SUNNY MATHEW R3 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL REFERENCE HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.Reference No.8 of 2009. ================== Dated this the 27th day of August, 2009. J U D G M E N T Judicial First Class Magistrate-III, Kozhikode as per order dated 2.7.2003 in M.C. No.51/2003 directed two sureties to pay penalty of Rs.7,500/- each under Section 446 of Code of Criminal Procedure. Petitioner was the second respondent in that proceedings. Petitioner thereafter filed Crl.Appeal No.720/2008, challenging the order C.M.P. No.3647/2008 was filed to condone the delay in filing the appeal. As per order dated 18.9.2008, learned Sessions Judge dismissed CMP. No.2381/2008 and consequently, Crl.M.Appeal was also dismissed. Later suppressing the factum of filing the appeal its dismissal, petitioner along with the first respondent in MC.51/2003 filed Crl.A. No.1014/2008 along with CMP.No.3647/2008 to condone the delay. Without noting that petitioner had earlier filed, an appeal with a petition to condone the delay and it was dismissed petitioners filed the appeal. Learned Sessions Crl.Reference No.8 of 2009 2 Judge allowed CMP. No.3647/2008 on payment of cost of Rs.7,500/- each. Later learned Sessions Judge came to know about the disposal of the Crl.A.No.720/2008 and therefore addressed this court to take up the matter. This Criminal Reference was suomoto registered based on the report of the Sessions Judge. 2. Notice was issued to the respondent, the appellant in Crl.A.No.720/2008 who is one of the appellants in CMA.1048/2008. Respondent through his counsel filed a statement to the effect that when revenue recovery proceedings was initiated and he contacted the accused to whom he was a surety, he in turn promised to initiate appropriate proceedings and obtained his vakalath but later he did not disclose anything and under the impression that accused did not do anything, petitioner along with the other respondent in the M.C. filed an appeal. It is stated that it was only a bonafide mistake and not an intentional act of filing a subsequent appeal. Expressing apology, respondent Crl.Reference No.8 of 2009 3 submitted that further proceedings may be dropped. 3. A party who challenged an order before the Sessions Court and after its dismissal is not entitled to file another appeal, suppressing the fact of dismissal of the earlier appeal. It is a matter which is to be viewed very seriously. But in view of the apology expressed by the respondent, I do not find it necessary to take further action. But as Crl.M.A.No. 720/2008 filed by the petitioner, the second respondent in M.C.51/2003, was dismissed on 18.9.2008 consequent to the dismissal of CMP.No.2381/2008 in Crl.M.A.1014/2008, with respect to the portion of the appeal filed by the petitioner can only be dismissed. The Sessions Judge can proceed with the appeal as if it is filed by the first respondent alone in the Crl.M.C. M.SASIDHARAN NAMBIAR, JUDGE app/-