Mahabir vs State of U.P.

Hon''ble Aditya Nath Mittal, J.—Heard Sri Arvind Kumar Shukla, learned Amicus Curie appointed for revisionist and the learned AGA. This criminal revision has been filed against the judgment and order dated 16.10.2010 passed by Additional Sessions Judge, Court No. 2, Agra in Criminal Appeal No. 240 of 2010, Mahabir Vs. State of U.P. by which the application to condone the delay has been rejected.

Learned counsel for the revisionist has submitted that the revisionist was sentenced to undergo an imprisonment of one and half years'' simple imprisonment and Rs. 500/- as fine and two months'' imprisonment in default in case of non-payment of fine. The revisionist has already undergone this sentence and hence, he is entitled to be released.

Learned counsel for the revisionist has further submitted that because the revisionist was in jail and he could not apply in time for the certified copy, so, the appeal within time could not be filed. It has further been submitted that on 18.9.2010, the advocates were on strike and 19.9.2010 was Sunday, therefore, the appeal was not filed within time.

Learned AGA has submitted that learned Additional Sessions Judge has considered all the aspects of the matter and has defended the impugned order.

The conviction of the revisionist was recorded on 4.8.2010. As per the averments in the grounds of revision, the delay was due to non-receipt of certified copy of the order. It has been argued that the brother of the accused family Charan Singh had obtained the certified copy of the judgment on 17.9.2010. The court below has found that the certified copy of the order was obtained on 14.9.2010 and not on 17.9.2010 thereby the delay of period in between 14.9.2010 and 17.9.2010 has not been explained and accordingly, the application u/s 5 of the Indian Limitation Act was dismissed.

It is settled position of procedure that whenever any person is convicted of an offence, it is the duty of the trial court to provide a free copy of the judgment to the convict immediately or within a reasonable period. I am surprised to see that the learned trial court has not mentioned this fact in the operating order that copy of the judgment be provided to the convict within a reasonable time. Certainly this is violation of the valuable right of the revisionist and the learned Additional Sessions Judge should have considered this aspect that it was a right of the convict to get free copy of the judgment.

The U.P. State Legal Services Authority has also appointed advocates to see that the appeal of convicts who are in jail are filed within time. It appears that no such facility was extended to the revisionist to file the appeal within time. In these circumstances, learned Additional Sessions Judge should have considered the matter sympathetically and should not have gone into the technicality of delay of merely 3 or 5 days. In these circumstances, the impugned order dated 16.10.2010 is liable to be set aside.

In the result, the revision is allowed. The order dated 16.10.2010 is hereby set aside.

Learned Sessions Judge, Agra is directed to consider the fact that why the free copy of the order was not given to the convict. The delay in filing the appeal should be considered afresh. It has further been submitted by the learned Amicus Curie that the revisionist has already undergone the total period of imprisonment but still he is languishing in jail. Learned Amicus Curie is unable to tell as to whether there are other cases pending against the revisionist or not. The learned Sessions Judge, Agra is directed to consider this aspect also and if the revisionist has completed the period of imprisonment in this case, then the revisionist should be released in accordance with law. Let a copy of this order be transmitted to Sessions Judge, Agra immediately.