JAYAKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner who was the sole accused in CC No. 171 of 2003 on the file of the J.F.C.M. II, Harippad was convicted for an offence punishable under S.392 read with S.34 IPC and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,500/- and on default to pay the amount to suffer simple imprisonment for three months. Aggrieved by the conviction and sentence, the petitioner preferred an appeal before the Addl. Sessions Court I, Mavelikkara as Crl. A. No. 591 of 2007. Since the appeal was not filed within time he had filed Crl. MP No. 2276 of 2007 to condone the delay in filing the appeal. But the petition to condone the delay was dismissed for the reason that it was not accompanied by an affidavit of the petitioner (who is in custody) as enjoined by R.103 of the Criminal Rules of Practice, Kerala, 1997. Consequently, the appeal was dismissed as time barred. It is the said judgment which is assailed in this Revision.

(2.) If the application to condone the delay filed by the petitioner before the lower Appellate Court was not accompanied by the affidavit as enjoined by the Rules it should have been returned as defective in which case the petitioner would have got an opportunity to rectify the defect under R.104 of the Criminal Rules of Practice. This has not been done and the appeal was not disposed of on merits. I am inclined to give the petitioner an opportunity to have the appeal disposed of on merits. I am told that the delay in filing the appeal was 30 days and the reason stated was that he was afflicted with "chikkun gunnia". I see no reason why the said explanation should not be accepted. Accordingly, CMP 2276 of 2007 filed by the petitioner before the lower Appellate Court shall stand allowed and consequently, the delay in filing the Crl. Appeal No. 591 of 2007 shall stand condoned. The said appeal shall stand restored to file and shall be disposed of on merits by the Addl. Sessions Judge I, Mavelikkara. The petitioner who is in custody shall enter appearance before that Court on 12th February 2008. It shall be open to him to seek a suspension of the sentence imposed on him by filing appropriate petition before that Court.