B. Venkataswami, J.
1. By this petition under Section 439, Criminal P. C., the petitioners have challenged the Order made by the learned Sessions Judge, Chitradurga, in Criminal Appeal No. 26/72. By that order, the learned Sessions Judge had dismissed the appeal as being out of time.
2. The circumstances leading to this petition are these : The accused were charged with an offence under Section 379. I. P.C., read with Section 39 of the Indian Electricity Act before the First Class Magistrate, Chitradurga, in C. C. No. 1219/70. They were convicted and sentenced to pay a fine of Rs. 800/- each with the necessary default sentences, on 23-2-1972. The convicts preferred Criminal Appeal No. 26/72 before the Sessions Judge, Chitradurga. It would appear that the said appeal was barred by time. Consequently, the appellants therein had filed an affidavit for condonation of delay, in preferring the appeal. The said affidavit was supported by a medical certificate, apparently showing that one or the other of the appellants, or both, were ill during the relevant period. Not being satisfied with the affidavit filed, the learned Sessions Judge directed evidence to ,be led on behalf of the appellants in support of that affidavit. After several adjournments for one reason or other, the case came to be posted to 20-9-1972. The order sheet of that day reads thus:
To hear Re : Limitation. Evidence. Sri Marulappa wants to retire after give in notice. Adjourned to 19/10.
On 19-10-1372, the order sheet reads thus:
To hear re : limitation. Evidence. Sri Marulappa prays for time to retire. Petitioner absent Heard P. P. The appeal is out of time. Hence dismissed.
3. The contention on behalf of the petitioners is that the appellants therein have not had sufficient opportunity or notice with regard to the retirement of their Counsel. It is also contended that it would be plain from the Order sheet dated 19-10-72 that the learned Counsel, Sri Marulappa, had not had time to contact his clients and notify them about his intention to retire. Based on these circumstances, it is urged on behalf of the petitioners that the case of the appellants would fall squarely within the ratio of the decision of this Court in Sri Krishna Venkatesh Pai v. Devappa Ayyu Naik (1967) 1 Mys LJ 236 : AIR 1968 Mys 188.
4. It is contended on behalf of the State by Sri N. H. Naik, the learned High Court Govt. pleader, that having regard to the number of adjournments undergone in the appeal, and the fact that on several dates the appellants had been absent, although the case had been specifically posted for evidence, a clear inference would arise that the appellants were negligent. It is therefore, not a fit case where the appellants should be granted the indulgence prayed for.
5. On a careful consideration of the matter, it seems to me, that this is a case clearly falling within the principles adumbrated in the decision relied on behalf of the petitioners. The relevant observations in that case are to this effect:
After receipt of the memo, (memo by counsel retiring for want of instructions). The District Court dismissed the appeal for default. When Sri Kamath was engaged for the appeal and his memo does not specify the reason for failing to proceed with the case, the District Judge, in order to protect the interests of the appellant, ought either to have Insisted on Sri Kamath conducting the appeal, or directed him to state the reason for not proceeding with the case. The Pleader did not produce any acknowledgment of notice issued by him to his client stating that he is reporting no instructions. By accepting the vakalat of the appellant to conduct the appeal Sri Kamath agreed to argue the appeal. If for non-payment of fee settled or any other reason Sri Kamath wanted to report no instructions,' it was his duty to notify the appellant first and then seek leave of the Court to retire from the case. It was the duty of the Court to protect the interests of the appellant either by issuing notice to him or directing Sri Kamath to file proof of having issued notice of his intention (sic) proceed with the case. In my opinion, the Court below in dismissing the (sic) on the memo of Sri Kamath, failed to protect the interests of the appellant, when, by the acceptance of vakalat, the Pleader had undertaken to conduct the appeal.
6. In regard to this case, it is con- f tended on behalf of the State that the principle enunciated therein would be applicable to appeals in civil cases and not to criminal cases. I am not inclined to agree with this submission, as. in my opinion, it makes no difference to the principles enunciated therein.
7. In the instant case, as observed earlier, it is clear that on 19-10-1972 Sri Marulappa was still not in a position to intimate the Court that he had contacted his clients toy post or otherwise in regard to his intention to retire from the case. The Court had made no record whatsoever whether such counsel has been permitted to retire on that day, viz.. 19-10-1972. It was, therefore, the duty of the. Court to have called upon the Counsel to proceed with the matter as best as he could. Not having done so. it seems to me that the enunciation reproduced would be clearly attracted. In view of the said decision, the Order of the learned Sessions Judge cannot be sustained.
8. In the result, the petition succeeds and is allowed. The order of the learned Sessions Judge, Chitradurga, dismissing Criminal Appeal No. 26/72 is hereby set aside. But, having regard to all the circumstances of the case, I am of the opinion that the petitioners herein should be directed to appear before the learned Sessions Judge on 4th June 1972, without awaiting notice from that Court. On the petitioners failure to appear on that day, the appeal in question will stand dismissed. It is ordered accordingly.