OBAIAH Vs. STATE OF MYSORE

JUDGEMENT

(1.) By this petition under S.439 CrPC. the petitioners have challenged the Order made by the learned Sessions Judge, Chitradurga, in Criminal Appeal No.26172. 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 S.379 IPC. read with S.39 of the Indian Electricity Act before the First Class Magistrate, Chitradurga, in CC. 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 Crl. Appl. No.26/72 before the Sessions Juge, 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 giving notice Arjourned to 19/10. On19-10-4972, 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 dt.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 AyyuNaik 1967 (1) Mys.L.J. 236. 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.