Delhi High Court
R.S. Tuteja (Ex. Capt.) vs Lt. Col. Chandra Prakash (Retd.) & Anr. on 16 November, 1999
Equivalent citations: 2000IAD(DELHI)176, 82(1999)DLT768, 2000(52)DRJ105
Author: Cyriac Joseph
Bench: Cyriac Joseph
ORDER
Cyriac Joseph. J.
1. Respondent No.1, Lt. Col. Chandra Prakash (Retd.), had filed a complaint against the petitioner, Ex. Capt. R.S. Tuteja, under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. By judgment dated 20-5-1998 the petitioner was convicted by the trial court and by order dated 27-5-1998 of the trial court the petitioner was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2 lakhs. Aggrieved by the judgment dated 20-5-1998 and the order of sentence dated 27-5- 1998 the petitioner filed an appeal under Section 374 of the Criminal Procedure Code in the Sessions Court on 11-6-1998. The said appeal (Criminal Appeal No.31/98) was filed by the Petitioner without waiting or the certified copy of the impugned judgment/order of the trial court. But along with the appeal the petitioner had filed true copy of the impugned judgment/order. The petitioner had also filed an application for exemption from filing certified copy of the impugned judgment/order. The appeal was fixed for arguments on 12-4-1999 on which date one proxy counsel appeared for the appellant and on his request the case was adjourned to 13-7-1999 for arguments. But on 13-7-1999 there was no appearance on behalf of the appellant and, therefore, the learned Additional Sessions Judge heard the counsel for the respondent and the Additional Public Prosecutor and the case was adjourned to 17-7-1999 for pronouncement of the judgment. On 17-7-1999 the learned Additional Sessions Judge dismissed the appeal holding that the appeal was incompetent since certified copy of the impugned judgment/order had not been filed by the appellant and no order had been passed by the Court dispensing with the filing of the certified copy of the impugned judgment/order. Even though the petitioner filed an application for restoration of the appeal, the said application also was rejected by the learned Additional Sessions Judge on 6-9-1999. In the order dated 6-9-1999 the learned Additional Sessions Judge observed that the appeal had been dismissed not on merits but on account of the failure to file certified copy of the impugned judgment/order of the trial court. According to the learned Additional Sessions Judge there is no provision in the Criminal Procedure Code for re-hearing of the appeal which was rejected for nonfiling of the certified copy of the impugned judgment.
2. Aggrieved by the above mentioned orders dated 17-7-1999 and 6-9-1999 of the learned Additional Sessions Judge the petitioner has filed this petition under Section 482 of the Criminal Procedure Code praying that the impugned orders dated 17-7-1999 and 6-9-1999 of the learned Additional Sessions Judge may be set aside and the learned Additional Sessions Judge may be directed to hear the appeal on merits. On 2-10-1999 this Court issued notice of this petition to the respondents and notice had been served on the respondents. By an order dated 11-11-1999 passed in Crl. M. No.10191/99 the petitioner was granted interim bail till 16-11-1999.
3. The main contention of the learned counsel for the petitioner is that the appeal was not liable to be dismissed by the Additional Sessions Judge on the ground that certified copy of the impugned judgment/order had not been filed. Along with the appeal the appellant had filed a true copy of the impugned judgment/order and he had also filed an application for exemption from filing the certified copy of the impugned judgment/order. However no order had been passed by the learned Additional Sessions Judge granting exemption. According to the learned counsel for the petitioner the trial court records were before the appellate court and they contained the original of the impugned judgment/order and, therefore, the appellate court should not have dismissed the appeal on the ground that certified copy of the impugned judgment/order had not been produced by the appellant.
4. In support of his contention, learned counsel for the petitioner relied on the judgment of this Court in Mukand Lal Vs. State and another, reported in 1979 Crl. L.J. 105. In the said case a learned Judge of this Court has held that the purpose of having a copy of the judgment is merely to give the appellate court an initial idea of what the case is about at the time of passing interim orders. It is not necessary that this copy need be filed because the Section allows the dispensing with the copy. The provision contained in Section 382 of the Criminal Procedure Code should not be read as creating a disability against a person from filing an appeal. It is also held in the said judgment that when an accused has filed a copy and it is a copy of the judgment, it is sufficient compliance with Section 382 of the Criminal Procedure Code to enable the appeal to proceed further.
5. The learned counsel for the petitioner relied also on a judgment of the Hon'ble Supreme Court in Raj Kapoor and others Vs. State (Delhi Administration) and others, reported in AIR 1980 SC 256. In paragraph 11 of the said judgment Hon'ble Mr. Justice V.R. Krishna Iyer observed as follows:-
"When the order, in original, is before you, to dismiss the petition for non-production of a copy of it is to bring the judicial process into pejoration, and, if a copy were so sacred that the original were no substitute for it some time could have been granted for its production, which was not done. In law, as in life, a short cut may prove a wrong cut. I disinter the cassation proceedings and direct it to be disposed of de novo by the High Court. The content of the power, so far as the present situation is concerned, is the same, be it under Section 397 or Section 482 of the Code."
6. In the light of the above mentioned judgments I am of the view that the petitioner is entitled to succeed in this petition. In view of the urgency the petitioner had to file the appeal without waiting for certified copy of the impugned judgment/order. But he had filed true copy of the impugned judgment/order along with the appeal. He also filed an application for exemption from filing certified copy. It is true that no order had been passed dispensing with certified copy. At the same time there is no indication that the application had been dismissed. When the true copy of the impugned judgment/order was before him and the original of the impugned judgment/order was available in the trial court records which also were before him, the learned Additional Sessions Judge should not have dismissed the appeal on the technical ground that certified copy of the impugned judgment/order had not been filed by the appellant. Even if the trial court records had not reached the appellate court by that time, nothing prevented the appellate court from summoning the trial court records. There is no allegation that what was produced was not a true copy of the impugned judgment/order. It is also not disputed that the appellant had filed an application for exemption from filing certified copy. If the court was not inclined to allow the said application, the court could have granted further opportunity to the appellant to produce certified copy of the judgment/order instead of dismissing the appeal. Section 382 of the Criminal Procedure Code does not warrant dismissal of the appeal in such circumstances. The learned Additional Sessions Judge failed to note that in the given circumstances, the failure to file certified copy of the judgment/order could not have led to the consequence of the appeal being dismissed. The impugned dismissal of the appeal was really "a short cut which proved to be a wrong cut." The impugned order of the learned Additional Sessions Judge is wrong and unjust. It has to be corrected in order to secure the ends of justice.
7. Hence the impugned orders dated 17-7-1999 and 6-9-1999 passed by the learned Additional Sessions Judge in Criminal Appeal No.31/98 titled - Ex. Capt. R.S. Tuteja Vs. Lt. Col. Chandra Prakash (Retd.) and State, are hereby set aside. The said Criminal Appeal is restored to file. The learned Additional Sessions Judge is directed to consider the appeal afresh and to decide it on merits. The parties shall appear before the learned Additional Sessions Judge on 6th December, 1999 for further proceedings in the case.
8. Pursuant to this Court's order dated 11-11-1999 in Crl. M.10191/99 the petitioner was released on interim bail till 16-11-1999. The period of the said interim bail is extended for a further period of six weeks to enable the petitioner to seek appropriate orders from the Court of the Additional Sessions Judge regarding suspension of sentence and release of the appellant on bail.
A copy of this order may be forwarded to the Court of the learned Additional Sessions Judge, New Delhi and the Superintendent, Jail No. 4, Tihar for information.
9. Copy of this order may be given Dasti to the learned counsel for the petitioner.