Yogendra vs State of U.P.

S.I. Jafri, J.—Criminal Appeal No. 61 of 1968 was filed before the learned Sessions Judge, Meerut against the judgment and order dated 4-6-86 of Sri. S.K. Samadhiya, Assistant Sessions Judge Meerut convicting Yogendra Kumar applicant Under Sections 307, 393 IPC and Section 25 Arms Act and sentencing him to 7 years R.I. on the first count, 3 years R.I. in default of payment of fine on the second count and 3 years R.I on the third count. The aforesaid appeal was dismissed by Sri. Shamshery, Additional Sessions Judge/Special Judge, Meerut by his judgment and order dated 28-1-87. The learned Sessions Judge had confirmed the conviction and sentence passed by the Assistant Sessions Judge, in Sessions Trial No. 139 of 84 State v. Yogendra Kumar.

After filing the aforesaid appeal before the Sessions Judge the applicant was enlarged on bail by the Sessions Judge and he was released from jail on bail after complying with the conditions of the bond as directed by the Sessions Judge. During the pendency of the appeal the applicant did not abuse the bail.

The aforesaid appeal came up for hearing before Sri. N.S. Shamshery, Additional Sessions Judge Meerut on 7-1-87 and on that date the applicant''s Counsel moved an application for adjournment for a month to enable him to prepare the case and study the documents concerning the appeal but the same was rejected. On the aforesaid application, the learned Sessions Judge passed an order directing the applicant''s Counsel to produce the applicant (Appellant) in the Court within a week. However, it is alleged that the Court further observed that "the learned Counsel for the applicant cannot be permitted to argue on his behalf in his absence." The applicant''s Counsel could not inform the applicant regarding his appearance before the Sessions Judge within a week with the result that the learned Sessions Judge disposed of the said appeal without hearing the applicant''s Counsel.

I have heard Sri. Tapan Ghosh learned Counsel for the applicant at a great length and I have also heard the learned Counsel for the State. It is contended by the learned Counsel for the applicant that the appeal was decided by the Sessions Judge without affording sufficient opportunity to the applicant for being heard through his Counsel. It is also submitted that the applicant''s Counsel had applied before the Sessions Judge for adjournment of the hearing of appeal for a short period of one month for preparation of the case as he was engaged recently but the Sessions Judge rejected the prayer and ordered the Counsel for production of the applicant before him within a week. It was also observed by the Sessions Judge that the learned Counsel for the applicant shall not be permitted to argue the appeal in the absence of the applicant. The applicant''s Counsel, however could not inform the applicant within one week to appear before the Sessions Judge with the result that the appeal was heard on 28-1-87 by the learned Sessions Judge and he had dismissed the appeal of the applicant with the assistance of the State Counsel.

This revision has been preferred for setting aside the aforesaid ex-parte order of the Sessions Judge as the order was passed without hearing the complainant''s Counsel against the mandatory provisions contained in Section 384 Code of Criminal Procedure.

I have given my anxious thought to the submissions made by the learned Counsel for applicant and I consider the aforesaid judgment and order of conviction and sentence passed by the learned Sessions Judge as illegal and liable to be set aside.

The Sessions Judge while deciding the appeal must act in accordance with the mandatory provisions contained in Section 384 Code of Criminal Procedure. In this case, it is quite apparent that the learned Additional Sessions Judge had fallen in error in rejecting the application of the applicant''s Counsel for adjournment of the appeal. The Sessions Judge should have afforded reasonable opportunity for hearing to the learned Counsel for the applicant.

The disposal of the appeal by the learned Additional Sessions Judge with the help of the learned Counsel for the State without affording reasonable opportunity for hearing to the learned Counsel for the applicant had very seriously prejudiced the applicant in his defence and it has occasioned a failure of justice. The alleged assertion of the applicant that the learned Additional Sessions Judge had observed while rejecting his application for adjournment that "the learned Counsel for the applicant shall not be permitted to argue the appeal in absence of the applicant." appears to be quite unfounded and I, therefore, have not taken any notice of the said alleged observations of the learned Sessions Judge as asserted by the applicant. However, Sri. Tapan Ghosh, the learned Counsel of the applicant should not have taken the above mentioned alleged observations of the learned Sessions Judge in the grounds of revision without having an affidavit from the learned Counsel for the applicant who had appeared before the learned Sessions Judge. Such allegations unsupported by an affidavit deserve to be discouraged by the learned Counsel.

Let the applicant Yogendra whose conviction and sentence was confirmed by the Additional Sessions Judge/Special Judge, Meerut in Criminal Appeal No. 61 of 1986 Under Sections 393, 307 IPC and 25 Arms Act be enlarged on bail on furnishing two sureties of Rs. 4000/- each and a personal bond in the like amount to the satisfaction of the C.J.M., Meerut, during the pendency of the appeal and the realisation of fine shall also remain stayed meanwhile.

With the above directions, the revision is disposed of finally.