Radhey Shyam vs State of Rajasthan

H.R. Panwar, J.—This criminal revision petition u/s 397/401 CrPC is firected against the judgment and order dt. 29.06.2009 passed by learned Sessions Judge, Chittorgarh (for short "the appellate Court" hereinafter) in Criminal Appeal No. 85/2009 whereby the appeal filed by the accused petitioner against the judgment and order dt. 25.04.2009 passed by Additional Chief Judicial Magistrate No. 2, Chittorgarh (for Short "the trial Court" hereinafter) was dismissed only on the ground of delay in filing the appeal.

I have heard learned Counsel for the parties.

The accused petitioner came to be tried by the trial Court for the offence under Sections 457 and 380 IPC and by judgment and order dt. 25.04.2009, the trial Court convicted the petitioner for the offences noticed above and sentenced him to undergo three years rigorous imprisonment for each of the offence and a fine of Rs. 1000/- each, in default of payment of fine, to further 2 months simple imprisonment for each offence. The judgment and order convicting and sentencing the petitioner dt. 25.04.2009 came to be challenged by way of appeal by the petitioner. The appeal came to be filed on 19.06.2009 and was delayed by about 24 days. An application u/s 5 of the Limitation Act was also filed. However, the Limitation Act and consequently appeal on the ground of barred by period of limitation.

In my view, the appellate Court fell in error in not condoning the slight delay of 24 days in filing the appeal. When the accused has been convicted and sentenced and sent to jail, he could have filed jail appeal but at any rate, while in jail he engaged the counsel who filed the appeal may be slightly delayed by 24 days but the appellate Court instead of examining the matter on merit simply dismissed the appeal on the ground of delay. It is settled law that while considering the question of condonation of delay, sufficient cause shown by the applicant therein has to be liberally construed. On the contrary, in the instant case, the appellate Court has strictly gone with day-to-day explanation which is otherwise not warranted and is liable to be set aside.

Consequently, the order impugned dt. 29.06.2009 passed by Sessions Judge, Chittorgarh in Criminal Appeal No. 85/2009 is set aside. The delay in filing the appeal before the Sessions Judge is condoned and the appeal is restored. The Sessions Judge shall now hear the appeal and decide it on merit after affording an opportunity of hearing to the appellant.

The revision petition is allowed to the extent as indicated above.