Raja @ P.P. Raja vs The State

G.M. Akbar Ali, J.—This Criminal Revision Petition is preferred against the order passed by the learned Principal Sessions Judge, Madurai in Cr. M.P. No. 4286 of 2009 in unnumbered C.A. Of 2009, against S.C. No. 131 of 2003, on the file of the learned Assistant Sessions Judge, (Chief Judicial Magistrate) Madurai, dated 30.03.2004.

I have heard the learned Counsel on either side and perused the materials available on record.

The Criminal miscellaneous petition was filed for condoning the delay of 1495 days in preferring the appeal against the conviction and sentence passed in S.C. No. 131 of 2003 by the learned Assistant Sessions Judge, (Chief Judicial Magistrate) Madurai, dated 30.03.2004. Originally, there were two accused and against whom, the charges were framed for the offences under Sections 448, 224 r/w 34, 332 r/w 34 and 307 r/w 34 IPC. The learned Sessions Judge, after elaborate trial found both the accused guilty for the said offences and convicted them to undergo rigorous imprisonment for one year u/s 448 I.P.C., R.I. For 1 year u/s 224 r/w 34 I.P.C., R.I. For 1 year u/s 332 r/w 34 I.P.C., and also sentenced to undergo R.I., for a period of 7 years and to pay a fine of Rs. 1000/- in default to undergo simple imprisonment for 3 months under Section

One of the accused viz., Iayaraja had preferred an appeal in Crl.A. No. 212 of 2004 before the learned Additional District Judge, Madurai and the same was pending. The present petitioner is in jail and he had filed an application to condone the delay of 1495 days in filing the Criminal Appeal. However, the same was dismissed by the learned Principal District Judge, on the ground that there is an inordinate delay of 1495 days and there is no explanation given for the said delay.

This Court has called for the report from the learned Asst. Sessions Judge, (Chief Judicial Magistrate), Madurai and it is submitted that the appeal preferred by the co-accused in Crl. A. No. 212 of 2004 was also dismissed on 13.09.2005.

Considering the facts and circumstances of the case, I am of the considered view that an accused, who is undergoing the sentence, is entitled to be heard in appeal in spite of the delay in preferring the appeal. No doubt, the counsel engaged by the Legal Services Authority was attending jail for preparing such appeal. If the appeal was not preferred by the accused, he cannot be blamed, rather it is because of the failure on the part of the Legal Services Authority to extend their Legal Aid. The accused could have given up his hope for preferring the appeal or he would not have been aware that there is an appeal provision. In any event, once he preferred an appeal when he is in duress, the delay has to be necessarily condoned and he has to be heard in appeal and therefore, the order of the learned Principal District Judge is unsustainable.

In the result, the Criminal Revision Petition is allowed and the order passed by the learned Principal Sessions Judge, Madurai in Cr. M.P. No. 4286 of 2009 in unnumbered C.A. of 2009, against S.C. No. 131 of 2003, on the file of the learned Assistant Sessions Judge, (Chief Judicial Magistrate) Madurai, dated 30.03.2004, are set aside and the learned Sessions Judge is directed to number the appeal and dispose of the same on merits. Consequently, connected miscellaneous petition is closed.