SHYAMSUNDER DAS Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the judgment and order dated 29 -3 -71 passed by Sri A. K. Patra, Additional Sessions Judge, Puri in Criminal Appeal No. 2/39 of 1971/70 confirming the judgment and order passed by the Magistrate, First Class, Khandapara, convicting the petitioner under Section 409, I. P. C. and sentencing him thereunder to undergo R. I. for six months and to pay a fine of Rs. 500/ -in default to undergo R. I. for one month.

(2.) THE facts of the case need not be stated as they are not relevant in view of the specific question raised by Mr. Rath, the learned counsel for the petitioner. Mr. Rath, at the outset, urged that neither the petitioner nor the counsel on his behalf had notice of the date and place of hearing of the appeal filed by the petitioner before the Sessions Judge, and as such the judgment passed by the appellate Court, upholding the conviction and sentence of the petitioner without giving him an opportunity to make his submissions, is bad in law and is liable to be set aside.

(3.) MR . Rath urged that the appeal was filed at Nayagarh with a petition to fix the hearing of the appeal at Nayagarh. The appeal was actually fixed for hearing by the Sessions Judge at Nayagarh. From the above and because of the order passed by the Sessions Judge at Nayagarh on 8 -9 -70, the petitioner's lawyer bona fide and justifiably believed that the said appeal would be taken up at Nayagarh when the Sessions Judge would come there on circuit, and accordingly he was expecting notice or information of the next date of hearing from the Sessions Judge's Court. It is stated on affidavit that neither the petitioner nor his advocate had any information of the fact that the appeal was to be taken up at Puri and that too on 25 -3 -71 by the Additional Sessions Judge.