SHRAVAN KUMAR @ SHARWAN KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application is directed against the order dated 3.8.2012, passed by the learned Sessions Judge, Ranchi in Criminal Appeal No. 134/2012, whereby and whereunder, the appeal filed by the petitioner against the judgment of conviction dated 7.5.2012, passed in G.R. Case No. 1997 of 2005, was dismissed on account of its non-prosecution and also on account of being time barred. Mr. Sinha, learned senior counsel appearing for the petitioner submits that the petitioner was convicted for an offence under Section 414/34 of the Indian Penal Code and was sentenced to undergo R.I. for 3 years vide judgment and order dated 7.5.2012. As against that, an appeal was preferred before the learned Sessions Judge, Ranchi, which was numbered as Cr. Appeal No. 134/2012. The appeal was barred by limitation by one day and, therefore, time was given for filing limitation petition. Subsequently, order was passed directing the petitioner to surrender perhaps for the reason that the period of appeal had expired during which the provisional bail had been granted by the Court below for preferring appeal. Neither the petitioner did surrender nor did file any limitation petition. On the date fixed, i.e. 31st May, 2012, even the lawyer did not appear to prosecute that appeal. In such situation, the appeal was dismissed on account of its non-prosecution and also on account of being barred by limitation. Thereupon, an application was filed for restoration of that appeal but that was also dismissed after holding that the Court does not have power to review its own order. Being aggrieved with those orders, this application has been preferred.

(2.) Mr. Sinha, learned counsel appearing for the petitioner submits that it is true that there has been delay of one day in filing the appeal but the same could not be filed in spite of direction being given by the learned Sessions Judge as the counsel appearing for the petitioner had fallen ill and, therefore, on the date fixed, the counsel could not appear and, thereby,. even the limitation petition was not filed and this fact would appear from the statements made in the restoration application. At the same time, the appellant did not surrender because he had been admitted to bail by the Court below and from perusal of that order it would appear that the order for bail was not limited to the period of filing of appeal and, therefore, there was confusion on the part of the petitioner as to whether he has to surrender even on filing the appeal and in such situation, on account of non-surrender and also on account of non-filing of the limitation petition, the appeal was dismissed and that if it is not restored, injustice would be caused and, therefore, for securing ends of justice this Court should invoke inherent power as enshrined under Section 482 Cr.P.C. by directing the learned Sessions Judge to restore the said criminal appeal.

(3.) Having heard learned counsel appearing for the parties, it does appear that there has been delay of one day in filing the appeal and that time was also granted for filing limitation petition but that could not be filed and reason for non-filing appears to be that the counsel, which was prosecuting the appeal, had fallen ill, which does appear from the statements made in the restoration application and that there may be confusion on the part of the petitioner keeping in view the nature of the order, passed by the trial court granting provisional bail that he need not to surrender when appeal has already been preferred. In such situation, there would be injustice to the petitioner if the appeal is not restored to its original file.