KANHAIYA LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner Kanhaiyalal was prosecuted in a criminal case No. 168/1971 State Vs. Kanhaiyalal for the offence under section 457 and 380 I.P.C. The petitioner Executed a personal and a surety bond for his appearance in the court ion the date fixed. It is said that he absented on 24-6-71 and the court of the learned Additional and Munsif Magistrate No. 1, Jodhpur, in which court the case was challenged against the accused started proceedings under section 514 Crimial P.C. of 1898 and ordered the recovery of Rs. 2000.00, the amount of the bond executed by the petitioner. The petitioner was serving the sentence which was awarded to him in the original case of theft. He therefore applied for the copy of the impugned order of the learned Additional Judicial Magistrate dated 25-4-74 through jail authorities. The Jail authorities received the copy of the order on 31-5-74 and an appeal was preferred. But unfortunately the papers regarding the appeal instead of being remitted to the Court of the Sessions Judge, Jodhpur were wrongly addressed to the Registrar of this Court, and thus the appeal was wrongly preferred in this Court. It seems that the papers were despatched by the Superintendent, Central Jail Jodhpur vide his office letter No. Judl./1/App./293/748 dated 3-6-74. That appeal was received in this Court on the office report shows, on 11-6-74 (Record S. B. Criminal (Jail) Appeal No. 361 of 1974). Subsequently this mistake was discovered by the Superintendent, Central Jail, Jodhpur that he has wrongly remitted the papers of appeal to this Court. He therefore requested this Court vide his letter No. Judl./1/1285 dated 10-7-74 that through over sight the appeal was miss sent to this Court for which he regretted and further requested to return the above memo of appeal along with this enclosure for transmission to the concerned appellate court. On this the papers were transmitted to the Superintendent Central Jail, Jodhpur from this Court. Thereafter the memo of appeal was sent to the Sessions Judge, Jodhpur by the Superintendent. Central Jail, Jodhpur vide his letter No. 1618 dated 1-8-74. On this the appeal was registered subject to objection as to limitation on 5-8-74 by the Sessions Judge and was subsequently transferred for disposal to the court of Additional Sessions Judge No. 1, Jodhpur on 6-8-74. The learned Additional Sessions Judge vide his impugned order dated 30-3-76 held the appeal to be time barred. It is against this order that this revision petition has been preferred.

(2.) From the perusal of this impugned order of the learned Additional Sessions Judge it transpires that there was no record available with the Additional Sessions Judge as to what period was taken in the proceedings during which the appeal was wrongly preferred in this Court. Therefore, he counted the period as to the date when the appeal was actually received by the Sessions Judge, Jodhpur through the Superintendent, Central Jail, Jodhpur and he refused to invoke the provisions of section 5 of the Limitation Act.

(3.) When this revision position came up before this Court on 1-2-77 the petitioner requested to file an affidavit to explain the delay as to how the appeal was submitted late in the Court of Sessions Judge, Jodhpur. The court granted time to file such an affidavit and the affidavit has been so filed on 14-2-77.