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Sankarasetty Pompanna Vs. State of Karnataka and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1977CriLJ2072
AppellantSankarasetty Pompanna
RespondentState of Karnataka and anr.
Excerpt:
.....of the petitioner and the same was without jurisdiction. on this ground, the impugned communication of adverse remarks in the confidential record of the petitioner is liable to be quashed. - the learned sessions judge has failed to consider this aspect of the case and has taken an erroneous view of the matter in rejecting i......code, so far as the petitioner is concerned. as already pointed out, section 363(1) of the code of criminal procedure, is intended to facilitate the lodging of an appeal by the accused without avoidable delay. when the petitioner has demonstrated the non-compliance with the provisions of section 363(1) of the criminal procedure code, it is not possible to say that the petitioner has not shown sufficient cause to condone the delay. the learned sessions judge has failed to consider this aspect of the case and has taken an erroneous view of the matter in rejecting i.a.i. for the condonation of delay in preferring the appeal. in these circumstances, therefore, the petitioner has shown sufficient cause for condoning the delay and therefore the order rejecting i.a.i. for condonation of.....
Judgment:
ORDER

K. Bhimiah, J.

1. This Criminal Revision Petition Under Section 397, Criminal Procedure Code, is by the petitioner a prisoner in Bellary Jail through the Jail Superintendent, challenging the order passed by the Sessions Judge, Bellary in Criminal Appeal No. 13/77 rejecting the request for condonation of delay in filing the appeal. The appeal has not been disposed of by the learned Sessions Judge on merits. But, it was dismissed on the ground that the petitioner had not shown sufficient cause to condone the delay in filing the Criminal Appeal.

2. The facts necessary for the disposal of this Criminal Revision Petition are these :

Certain private complaint was filed by the complainant in C.C. No. 127/1975 on the file of Judicial Magistrate First Class, Hadagalli, alleging offences Under Sections 362, 368, 424 and 497 of the Indian Penal Code, against the petitioner and another. The learned Magistrate framed charges, examined prosecution witnesses and defence witnesses and adjourned the case to hear arguments and heard arguments on 6-11-1975 and posted the case for judgment on 17-11-1975 and pronounced the judgment recording conviction and sentence by rejecting the application filed on behalf of the petitioner to exempt the absence of the accused from the Court as he missed the bus on that day to reach the Court in time. But the Magistrate refused to grant exemption. After the judgment was pronounced, non-bail able warrant for arrest of the petitioner was issued and the petitioner-accused was arrested on 19-4-1977. Copy of the judgment was furnished to the second accused. He annexed to his appeal petition the copy furnished to Mallavva, second accused and sent the appeal on 22-4-1977. The petitioner also filed an I.A. with a prayer to condone the delay of 1 year, 5 months and 5 days. The appeal was admitted subject to the decision on the question of limitation. When the appeal came up for hearing, the learned Sessions Judge after hearing the petitioner's counsel reached the conclusion that the petitioner had not shown sufficient cause for condoning the delay. In that view of the matter, appeal was dismissed.

3. Now, the question for decision is whether the petitioner had shown sufficient cause to condone the delay. It is not disputed that Article 115 and Section 5 of the Limitation Act, 1963 are applicable in this case. Before considering the question whether sufficient cause is shown to condone the delay, it is necessary to refer to the relevant sections under the Criminal Procedure Code. Section 363(1) of the Criminal Procedure Code says :

When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost.

The main object of this sub-section was to facilitate the lodging of an appeal by the accused without avoidable delay. Section 248(2) of the Criminal Procedure Code says :

Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence pass sentence upon him according to law.

On a reading of these two provisions, it is clear that the presence of the accused at the time of passing a sentence or of his counsel if the accused is exempted from personal appearance is necessary and immediately after the pronouncement of the judgment, such accused is entitled to the supply of the copy of the judgment by the Magistrate, in order to, facilitate the lodging of the appeal by the accused without avoidable delay. The learned Magistrate pronounced the judgment on 17-11-1975 when the accused was absent by rejecting the request made on behalf of the accused for exemption of the accused from appearance. It is observed in the course of the order passed by the learned Sessions Judge, that the petitioner filed appeal enclosing copy of the judgment supplied to the second accused in the case. Thus, there is absolutely no compliance with the provisions of Section 363(1) of the Criminal Procedure Code, so far as the petitioner is concerned. As already pointed out, Section 363(1) of the Code of Criminal Procedure, is intended to facilitate the lodging of an appeal by the accused without avoidable delay. When the petitioner has demonstrated the non-compliance with the provisions of Section 363(1) of the Criminal Procedure Code, it is not possible to say that the petitioner has not shown sufficient cause to condone the delay. The learned Sessions Judge has failed to consider this aspect of the case and has taken an erroneous view of the matter in rejecting I.A.I. for the condonation of delay in preferring the appeal. In these circumstances, therefore, the petitioner has shown sufficient cause for condoning the delay and therefore the order rejecting I.A.I. for condonation of delay cannot be sustained and it calls for interference. It is therefore set aside. Delay condoned. I.A.I. is allowed. The Sessions Judge is directed to hear the appeal on merits and dispose of the Criminal Appeal No. 13/77 in accordance with law.

4. Criminal Revision Petition is allowed.


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