Lokanath Sabar vs State of Orissa

N. Prusty, J.—The petitioner being charged under Sections 376, 417, 341 and 506/34 of Indian Penal Code was convicted and sentenced u/s 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 u/s 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.

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.

Mr. Dhal, Learned Counsel for the petitioner submits that since the appeal was preferred before the Learned Addl. Sessions Judge challenging the substantive sentence imposed on the appellant, before dismissing the appeal Learned Addl. Sessions Judge should have given an opportunity to the appellant for removing the defect within the time stipulated or in the interest of justice since the advocate for the appellant did not appear on that date instead of dismissing the appeal on the ground that neither the advocate for the appellant filed time petition nor removed the defect, it would have been appropriate to appoint any other advocate as amicus curie to remove the defect and to conduct the case on behalf of the appellant or should have sent a notice to the appellant in person to remove the defect within a stipulated period. Instead of doing so, Learned Court below has dismissed the appeal for default. Learned Counsel further submits that unless the impugned order dated 14.3.2004 is set aside and the appellant is given a chance to remove the defects and present his case properly, he shall be highly prejudiced and suffered irreparable loss, since he has been 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.

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.

Considering the submissions made by the Learned Counsel for the petitioner as well as for the State and keeping in view of the fact that the appellant has filed the appeal challenging the order/ sentence imposed on him 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, in the better interest of justice it would be appropriate to give an opportunity to the appellant to remove the defect and to present his case properly to be decided on its own merit. In view of the above, order dated 14.3.2003 passed by the Learned Addl. District and Sessions Judge, Nuapada dismissing Criminal Appeal No. 31 of 2003 is set aside and the matter is remanded to the Learned Appellate Court to dispose of the same on its own merit in accordance with law, giving another opportunity to the appellant for removing the defect and present his case. The appellant is directed to appear before the Learned Addl. District and Sessions Judge, Nuapada on 25.7.2005 and remove the defect within a period of one week thereafter. His application for condonation of delay, which was filed along with the memorandum of appeal u/s 5 of the Limitation Act, instead of filing it u/s 14 of the Limitation Act, shall be considered on its own merit treating the same to be an application u/s 14 of the Limitation Act and thereafter, the appeal shall be heard on its own merit and disposed of in accordance with law. Since the appeal is of the year 2003, Learned Addl. District and Sessions Judge, Nuapada shall do well to dispose of the same as early as possible.

The Criminal Revision is disposed of with the above observations and directions.