MAHESH KUMAR Vs. STATE

JUDGEMENT

(1.) MAHESH Kumar and Mohd. Abbas, applicants were convicted by the learned Tehsildar-Magistrate Second Class, Naraini, district Banda Under Section 160 read with Section 34 I. P. C. and sentenced to a fine of Rs. 50/- each. In default of payment of fine the defaulter was ordered to undergo one month's simple imprisonment. This order was passed on 10th of January 1973.

(2.) ON the 15th of January 1973 the applicants moved an application for revision before the learned Sessions Judge. When this revision application came up for hearing on 9-3-1973 the applicants moved an application before the learned Sessions Judge praying that the application for revision might be treated as an appeal on the ground that the revision was filed in a hurry and at that time it was not noticed that the impugned order was passed by a Magistrate of the Second Class and not by a Magistrate of the First Class and because of this mistake a revision had been filed instead of an appeal. It was opposed on behalf of the State and the learned Sessions Judge rejected the application on the ground that there was no provision in the Cr. PC permitting him to do so; he possessed no inherent power to treat the revision as an appeal.

(3.) THEREUPON, the applicants filed an appeal accompanied by an application for condonation of delay Under Section 5 of the Limitation Act. The condonation of delay was sought on the ground that it was on account of a mistake of the counsel that a revision was filed and not an appeal. The learned Sessions Judge dismissed the application for condoning the delay on the ground that the mistake was due to the negligence of the counsel and it could not be said that the counsel who gave wrong advice acted in good faith which term signified that the party should have acted with due care and attention. When this application for condonation of delay was dismissed by the learned Sessions Judge, naturally he rejected the memorandum of appeal also.