IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 602 of 2000() -------------------------------------- CRA.74/1998 of SESSIONS COURT, KASARAGOD CC.519/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDURG REVN. PETITIONER: ----------------------------- CHIRUTHA, W/O.NARAYANAN, PANAMKODE AMSOM, KODOTH VILLAGE, HOSDURG, KASARGOD DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT: --------------------- STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. =================================== Criminal Revision Petition No.602 of 2000(A) =================================== Dated this the 17th day of September, 2008 O R D E R The revision petitioner was convicted by the Judicial First Class Magistrate - I, Hosdurg in C.C.No.519/1996 alleging commission of offence punishable under Section 55(g) of the Abkari Act. The allegation relates to on occurrence report on the basis of an alleged seizure of arrack at 19.00 hours on 29-3- 1996. Against the order of conviction and sentence imposed by the learned Magistrate, the accused, through an Advocate, submitted an appeal before the Court of Session, Kasargode as Criminal Appeal No.74/1999. By the impugned judgment dated 31-5-2000, the Court of Session, after hearing the arguments of the Public Prosecutor and recording the non-appearance of the Advocate engaged in the appeal, dismissed the appeal on merits. 2. For one thing, the appellant was not notified of the failure of her counsel to appear and argue the appeal in terms of Section 386 of the Code of Criminal Procedure. When the Advocate of the Crl.Rev. Pet. No.602/2000 - 2 - appellant had not appeared, the proper course to be adopted was to appoint a counsel on State Brief unless the appellant, on notice by the Court, does not engage another advocate. This is all the more so because, the materials on records disclose that the accused in this case was also entitled to some sort of legal assistance in prosecuting her appeal. 2. Secondly, and more importantly, having perused the judgment of the Court of Session, I am satisfied that the evidence has not been appreciated by the appellate court as is warranted in an appeal, having regard to the terms of Section 386 of Cr.P.C. The accused is a female. Ext.P5 is a certificate issued by PW4 regarding the ownership of the property. The Court of Session dealt with that certificate as one issued to the wife of the accused. Certain other materials on record and the views expressed by the learned Sessions Judge apparently show that the entire materials and the evidence were not taken stock of appropriately and in accordance with law in deciding the criminal appeal. Crl.Rev. Pet. No.602/2000 - 3 - For the aforesaid reasons, I am satisfied that the accused is entitled to have her Criminal Appeal No.74/1999 reconsidered by the Court of Session. For such purpose, the judgment passed in that appeal on 31-5-2000 is set aside and the case is remitted to the Court of Session, Kasargode with a direction to the appellant to appear before that Court on 23rd of October, 2008, so that the Court of Session can appropriately fix the date for hearing the appeal on merits. Having regard to the age of the accused and the fact that the alleged date of occurrence was on 29-3-1996, the Court of Session will give top priority for this appeal, which has on record only the depositions of four persons and five exhibits, apart from the police papers. Any amount ordered by this Court as condition for suspension of sentence pending this revision, will be taken note of and adjusted or ordered to be released in terms of the judgment in the appeal that may be passed in that appeal. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Skr/17/9