GANESH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present revision application has been filed by the accused who has been convicted in Summary Criminal Case No.442 of 2009, by learned Judicial Magistrate, First Class, Rahata for allegedly committing offence punishable under Section 304-A , 279 , 337 , 338 of the Indian Penal Code and under Section 184 of the Motor Vehicles Act. He wanted to challenge the said conviction in appeal before the learned Additional Sessions Judge, Kopargaon, however there was delay of 10 days and, therefore, he had filed Criminal application for Condonation of Delay No.25 of 2016. It appears that, notice was issued to the respondent by order dated 28-12-2016. The State who was the only opponent, failed to file say and, therefore, an order came to be passed on 17-01-2018 for proceeding the application without say. However, it appears that on the next date i.e. on 19-01-2018, the applicant as well as his Advocate were absent and, therefore, that application came to be dismissed. Thereafter, it appears that, again a delay condonation application was filed bearing 02 of 2018 for getting delay of 423 days condoned in filing the appeal. The prosecution objected the said application on the ground for reason for condoning the delay is not legal and reasonable. After hearing both sides, the learned Additional Sessions Judge has rejected the application on 06-02-2020. Hence, present revision.

(2.) Heard learned Advocate Mr. R. P. Mote for revision applicant and learned Additional Public Prosecutor Mr. S. B. Pulkundwar for respondent-State.

(3.) It has been vehemently submitted on behalf of the applicant that, though the first application was filed wherein the delay was only ten days, it appears that, due to some mistake or otherwise that application came to be dismissed and the learned Advocate representing the revision applicant was of the view that application for restoration of that application which has been dismissed is not maintainable, and therefore, he filed second application. While giving reason for the delay of 423 days, it was submitted that the applicant is a driver and was out of station i.e. Kerala from 18-11- 2016 till 17-12-2016. The applicant is the only earning member of the family, and therefore, he prayed for the said condonation of delay which ought to have been allowed. The applicant intends to challenge his conviction in appeal which is his substantial right and it could not have been taken away by the learned Additional Sessions Judge in such a way. This Court together with the powers under Section 397 of Code of Criminal Procedure, can use the power under Section 401 and 482 of the Code of Criminal Procedure to set aside the said order passed by the learned Additional Sessions Judge. He relied on the decision in Krishnan v. Krishnaveni and another , reported in AIR 1997 (SC) 987 : 1997 (1) Mh.LJ. 509, wherein it has been held that,