LOKANATH SABAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner being charged under Sections 376, 417, 341 and 506/34 of Indian Penal Code was convicted and sentenced under Section 376 of the Indian Penal Code by the order/judgment dated 29.8.2003 of the Learned C.J.M. -cum -Assistant Sessions Judge, Nuapada in Sessions Case No. 25/2 of 2003. He was sentenced to undergo R.I. for seven years and to pay a fine of Rs. 2000/ - in default to undergo R.I. for a further period of one year subject to set off under Section 428, Cr.P.C. Challenging the above said order, by mistake the petitioner filed Criminal Appeal No. 223 of 2003 before this Court, which is not the proper forum. When this Court took up the matter by order dated 30.10.2003 it was directed to return the case to the petitioner (appellant) with a liberty to file the same before the appropriate Court. Accordingly, the petitioner presented/filed appeal before the Learned Addl. District and Sessions Judge, Nuapada along with an application for condonation of delay, which occurred due to filing of the Appeal before this Court. The said appeal was numbered as Criminal Appeal No. 31 of 2003 in the Court of the Learned Addl. District and Sessions Judge, Nuapada. By order Dated 14.3.2003, Learned Addl. District and Sessions Judge dismissed the appeal for default on the ground that the Learned Advocate for the appellant neither filed time petition nor removed the defect.

(2.) THE petitioner has filed the present application for setting aside the order dated 14.3.2004 of the Learned Addl. Sessions Judge, Nuapada dismissing the appeal for default. After hearing the Learned Counsel for the parties, records of the Court below was called for. On verification of the stamp report, it is seen that the appeal was presented beyond the period of limitation and the appellant was to pay the deficit Court Fee on the memorandum of appeal and authentication fee. However, the exact amount of deficit Court Fee and authentication fee has not been pointed out in the stamp report.

(3.) LEARNED Counsel for the petitioner further submits that if an opportunity is given, the petitioner shall remove all the defects as pointed out by the stamp reporter within a period of one week from the first date on which the matter shall be taken up by the Learned Addl. District and Sessions Judge, Nuapada and he shall also ensure that his counsel shall appear before the Learned Addl. District and Sessions Judge at an earliest date as would be fixed by this Court and remove the defect within one week thereafter.