GOVIND PRASAD KANODIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Insurance Inspector (Legal), Employees State Insurance Corporation, Patna, instituted a complaint case, being Complaint Case No. 2445(M) of 2001, on 10.12.2001, in the Court of the learned Chief Judicial Magistrate, Patna, under Section 85(g) of the Employees State Insurance Act, 1948 (Act No. 34 of 1948 and No. 38 of 1975). The learned Chief Judicial Magistrate took cognizance of the offence and made over the case for enquiry and disposal to a court of the learned Magistrate having competent jurisdiction. The learned Magistrate explained the substance of accusation to the petitioner to which he pleaded not guilty and claimed to be tried. Accordingly, the trial was held. On conclusion of trial, Mr. S.K. Mishra, the learned Judicial Magistrate, 1st Class, Patna, by his judgment and order dated 23.12.2005 convicted the petitioner for the offence under Section 85(g) of the Employees State Insurance Act, 1948 and sentenced him to undergo six month's simple imprisonment and to pay a fine of Rs. 3,000/- (three thousand) and in default of payment of fine to suffer further simple imprisonment for one month. The petitioner, being aggrieved by the aforesaid judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Patna, preferred Cr. Appeal No. 21 of 2006 before the learned Sessions Judge, Patna. The said criminal appeal was heard by the learned Additional District and Sessions Judge, F.T.C.-V, Patna. The appellate court dismissed the appeal preferred by the petitioner and upheld the impugned judgment passed by the trial court by its judgment dated 26.5.2010.

(2.) The petitioner has filed the present writ petition for setting aside the aforesaid judgment dated 26.5.2010 passed by the learned Additional District and Sessions Judge, F.T.C.-V, Patna in Cr. Appeal No. 21 of 2006, by which, the appellate court has upheld the conviction and sentence awarded against the petitioner by the trial court. The office pointed out a defect that the petition appears to be not maintainable under the writ jurisdiction and the same may be converted into criminal revision under Sections 397 and 401 of the Code of Criminal Procedure. Since the petitioner did not agree with the defect pointed out by the office, the matter was placed before the Bench under the heading "For Orders (On Office Notes"). When the matter was taken up on 16.10.2012 the case was ordered to be listed under the heading "For Admission-I" and the question of maintainability of the writ petition was ordered to be considered at the stage of admission.

(3.) Mr. N.K. Agrawal, learned Senior Counsel appearing on behalf of the petitioner, submits that there is no dispute with the proposition of law that in normal circumstance against a judgment by which the conviction and sentence awarded by the trial court is upheld by the appellate court, a revision would lie before this Court under Sections 397 and 401 of the Code of Criminal Procedure but, in a case, where admittedly, counsel for the appellant (accused) does not appear for one reason or another, and the appellate court decides the appeal against the appellant (accused) in absence of his counsel, a writ petition under Articles 226 and 227 of the Constitution of India would be maintainable.