Koshy John @ Shajan vs State Of Kerala

A. Badharudeen, J

The Criminal Revision Petition has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order dated 11.01.2016 in Crl.Appeal No.156/2012 on the files of the Additional Sessions Court-II, Mavelikkara arose out of judgment dated 10.04.2012 in C.C. No.888/2009 on the files of the Judicial First Class Magistrate Court, Haripad. The revision petitioner herein is the accused in the above case.

Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused the relevant materials available.

In this matter, the petitioner, who is the sole accused, absconded when this case was pending as C.C. No.343/1995 was booked when the same had been pending as L.P. No.2/1999 and renumbered as C.C. No.888/2009. Thereafter, the trial conducted and the learned Magistrate found commission of offences punishable under Section 417 of IPC by the accused. Accordingly, he was sentenced to undergo rigorous imprisonment for one year for the said offence and also to pay Rs.1,00,000/- to PW1 under Section 357(3) of Cr.P.C. In default of payment of fine, the accused was sentenced to undergo rigorous imprisonment for three months. Challenging the trial court judgment, the accused had filed Crl.A. No.156/2012 and the learned Additional Sessions Judge dismissed the appeal on 11.01.2006 and upheld the judgment of the learned Magistrate.

The petitioner now filed this revision petition along with a petition to condone delay of 2310 days in filing the revision petition. In support of the delay condonation petition, an affidavit sworn by one Sosamma, the sister of the revision petitioner has been placed. The main affirmation in the affidavit is that, since the petitioner has been working as a daily laborer in various locations of Uttarpradesh since 1994, due to his work, he was unaware of the dismissal of the appeal by the learned Sessions Judge. Further, the affirmation is that, the petitioner engaged an advocate to conduct the case and unfortunately, the advocate suffered stroke and was not under regular practice for the last several years and was unable to communicate the court order. In paragraph No.5 of the affidavit, it has been averred as under:

It is respectfully submitted that the Revision Petitioner became aware of the dismissal of the appeal, which upheld the judgment of the Learned Judicial First-Class Magistrate, Haripad, only upon his return to Kerala and subsequent arrest in execution of the sentence imposed upon him. Thereafter, I immediately approached another advocate and applied a certified copy thereafter on 18-09-2024 a copy of the order was obtained and steps were taken to file the Revision Petition. It is only due to the above stated reason; the Revision Petitioner could not file the above Revision Petition within the stipulated time. The above delay is neither willful nor deliberate. If the delay of 2310 days is not condoned, I will be put to irreparable loss and hardship. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Hon'ble Supreme Court of India held that "What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay."

Accordingly, the revision petitioner seeks condonation of delay of 2310 days in filing the revision petition.

Condonation of delay of 2310 days is zealously opposed by the learned Public Prosecutor by filing objection. The objection reads as under:

The statement in paragraph No.3 of the affidavit to the effect that petitioner has been working as a daily labourer in various locations of Uttarpradesh since 1994 is not supported by any documents and hence cannot be taken into account. The fact that the petitioner has not enquired about the status of Crl. Appl. No. 156/2012 filed before the Additional Sessions Judge II, Mavelikkara, itself would show that petitioner is totally negligent in the conduct of the case.

The fact that the petitioner has never visited his home town after the filing of Criminal Appeal in 2012 cannot be believed at all. The statement to the effect that the petitioner was suffering from various health issues is also not supported by any document. Petitioner has not explained each and every days delay and there is no proper explanation from the part of petitioner for condoning the inordinate delay of 2310 days. The petitioner lacks bonafides and is liable to be dismissed with cost of this respondent.

The question to be considered is, whether sufficient cause shown to condone long delay of 2310 days?

Going by the averment in paragraph No.5 of the affidavit filed by the sister of the revision petitioner, it was stated that the revision petitioner became aware of the dismissal of the appeal, which upheld the judgment of the learned Judicial First Calss Magistrate Court, Haripad, only upon his return to Kerala and subsequent arrest in execution of the sentence imposed upon him. Thereafter, immediately, the revision petitioner applied for certified copy of the judgment on 18.09.2024.

On perusal of the judgment of the trial court, it is well discernible that, this is a case originated in the year 1995 and the matter was pending as C.C. No.343/1995. PW1 was examined in chief and Ext.P1 marked before 1999. Thereafter, the accused absconded and the case moved to long pending register as L.P. No.2/1999. Later, the accused was arrested and the case was renumbered as C.C. No.888/2009, after a period of ten years and more. It was thereafter, the examination was completed and the trial court imposed conviction and sentence. The accused, who was aggrieved by the conviction and sentence imposed by the trial court, filed appeal vide Crl.A. No.156/2012. On 07.05.2012 and the learned Additional Sessions Judge, Mavelikkara, dismissed the appeal on 11.01.2016. The accused did not file any petition challenging the same till 16.10.2024. Thereafter, on the verge of execution of the sentence, the accused has filed this revision petition with petition to condone long delay of 2310 days. In fact, the long delay is not explained sufficiently and it is discernible that the accused is a person having tendency to evade from the process of court.

Therefore, I am of the view that, no sufficient reasons either pleaded or proved by the revision petitioner to condone the long delay of 2310 days in filing the revision petition.Therefore, Crl.M.A. No.2 of 2024 must fail and the same stands dismissed.

Consequently, the Criminal Revision Petition also stands dismissed as time barred.

Registry is directed to forward the copy of this order to the trial court as well as the appellate court, forthwith, for information and further steps.