Siya Sharan Saroj vs State of Bihar and Another

D.P.S. Chaudhary, J.—This revision application is directed against the judgment and order dated July 20, 1995 passed by the 3rd Additional Sessions Judge, Patna in Criminal Appeal No. 86 of 1991 dismissing the appeal and confirming the judgment and order passed by the Judicial Magistrate, 1st Class, Patna City in Complaint Case No. 49 of 1986/T.R. No. 320 of 1991, by which the Petitioner along with six other accused persons were convicted under Sections 323 and 448 of the Indian Penal Code and were to be released on probation u/s 4 of the Probation of Offenders Act after executing bond of Rs. 5,000/- with two sureties of the like amount each for a period of six months.

The prosecution case, in brief, is that opposite party No. 2 in his complaint petition dated 8.4.1986 alleged that on 1.4.1986 in between 3.00 and 4.00 P.M. all the accused including the Petitioner entered into the house of the complainant and abused him and his wife. It is further alleged that they also assaulted the informant with fists and slaps and lathi causing injury on his person. It is further alleged that on the same day at about 11.00 P.M. they again assaulted the complainant and his wife and also threatened at the point of revolver. After consisting the evidence adduced on behalf the complaint the trial court convicted Petitioner as indicated above.

Learned Counsel appearing on be(sic)of the Petitioner submitted that lower (sic)pellate court has not disposed of the (sic)eal on merit, which, as a matter of (sic)ct he was bound to do. The appellate court has disposed of the appeal on round that it has become infructuous, in as much as the Petitioner has already executed the bond as directed by the trial court and at the time of execution of the (sic)ond, the Petitioner and other accused did not raise any objection in executing the bond on 30.4.1991 nor had they filed any petition before the learned Magistrate or exemption from executing the bond, hence they have accepted the veracity of the impugned judgment and on this ground alone the lower appellate court dismissed the appeal treating it as infruc(sic)ous. Learned Counsel further submitted that this finding of the court below is bad because the Petitioner Appellant (sic)as entitled to be heard on merit in the appeal and the appellate court should have disposed of the same on merit (sic)one. It is further submitted that this has been used serious prejudice to the Petitioner, because the stigma of his conviction (sic)mains and being a Government servant, his may affect his service career.

Heard learned Additional Public prosecutor, who conceded with the above sumissions of the learned Counsel for be Petitioner.

From the perusal of the judgment of the lower appellate court, I find substance (sic) the submission made by the learned Counsle appearing on behalf of the Petitioner. In my view, the lower appellate court has committed error of law while disusing the appeal on the ground that it has become infructuous. The lower appellate court was bound to dispose of the appeal on merit alone after discussing the evidences, facts and circumstances of the case.

In the facts and circumstances of the case, this revision application is allowed and the matter is remanded back to the court below and the lower appellate court (3rd Additional Sessions Judge) shall hear the appeal afresh and decide the same on merit after hearing both the parties. Since the matter relates to the year 1986 and the case has become very old, as such, the lower appellate court must dispose of the appeal within four months after receipt of a copy of this order and the lower court records. The lower court records should be sent down to the court below at once.