Kerala High Court
Roopa vs State Of Kerala on 27 May, 2015
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938
Crl.Rev.Pet.No. 1323 of 2016 ()
--------------------------------
AGAINST THE JUDGMENT IN CRA 618/2013 of III ADDL. SESSION COURT
DATED 27-05-2015
AGAINST THE JUDGMENT IN CC 263/2011 of JUDICIAL FIRST CLASS
MAGISTRATE-III,KOZHIKODE DATED 07-05-2012
REVISION PETITIONER(S)/APPELLANT/CW2:
------------------------------------
ROOPA,
D/O.GOPALAKRISHNAN,
DEEPA NIVAS, KALLAI P.O.,
KOZHIKODE DISTRICT,
REPRESENTED BY POWER OF ATTORNEY HOLDER,
GOPALAKRISHNAN,
S/O.NARAYANANA,
DEEPA NIVAS, KALLAI P.O., KOZHIKODE.
BY ADV. SMT.BIMALA BABY
RESPONDENT(S)/RESPONDENTS/STATE & ACCUSED:
------------------------------------------
1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, 682031.
2. ASHRAF,
S/O.AHAMMED KUTTY, PALAMADATHIL HOUSE,
AR. NAGAR,
KUNNUMPURAM, KOZHIKODE 673001.
R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI
R2 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED
R2 BY ADV. SRI.SHIRAZ ABDULLA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 16-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
EL
P.UBAID, J.
- - - - - - - - - - - - - - - - - - - - - -
Crl.R.P. No. 1323 of 2016
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 16th day of January, 2017
ORDER
The revision petitioner herein is the defacto complainant in C.C.No. 263 of 2011 of the Judicial First Class Magistrate Court-III, Kozhikode. The property involved in the said prosecution under Sections 457, 380 and 414 read with Section 34 of the Indian Penal Code, is a gold ingot obtained by melting the stolen gold ornament. Without properly adjudicating the claim on the subject matter of theft, the learned Magistrate passed orders confiscating the property, while acquitting the accused as per the judgment dated 7.5.2012 in C.C.No. 263 of 2011. Instead of preferring an appeal under Section 454 of Cr.P.C. against the said confiscation order passed under Section 452 Cr.P.C. by the trial court, the revision petitioner made an unnecessary claim by way of C.M.P. No. 2813 of 2013. The learned Magistrate disallowed the said request on the ground that the claim has already been adjudicated by the court under Crl.R.P. No. 1323 of 2016 -2- Section 452 Cr.P.C. Against the said order disallowing the request, the revision petitioner preferred appeal before the Court of Session, Kozhikode under Section 374 of Cr.P.C. Instead of filing the appeal under Section 454 of Cr.P.C. against the order under Section 452 Cr.P.C., she wrongly brought the appeal under Section 374 of Cr.P.C. On the said ground alone, the learned III Additional Sessions Judge dismissed the Crl.A. No. 618 of 2013 by judgment dated 27.5.2015. The said judgment is under challenge in this revision.
2. Of course, the revision petitioner is really aggrieved. She cannot be made to suffer for the mistakes at the hands of her counsel. Instead of straightaway filing an appeal under Section 454 Cr.P.C. against the 452 order in the criminal case, her learned counsel unnecessarily filed an application again under Section 452 of Cr.P.C. The learned Magistrate clearly observed therein that the claim already stands adjudicated under Section 452 of Cr.P.C.. Despite such a finding, the learned counsel preferred appeal under Crl.R.P. No. 1323 of 2016 -3- Section 374 of Cr.P.C., against the order in the C.M.P.. At that juncture, he could have very well filed appeal against the order passed by the court under Section 452 of Cr.P.C.. Anyway wrongly, the learned counsel filed an appeal under Section 374 of Cr.P.C. against the C.M.P. order. The revision petitioner should have filed a proper appeal under Section 454 Cr.P.C. against the final order passed by the trial court under Section 452 Cr.P.C.. Serious mistakes were committed by the learned counsel, and the unfortunate consequence is that the innocent client would suffer. This will have to be remedied by this Court by interference appropriately. Of course, the learned Sessions Judge could have treated and decided the appeal under Section 454 of Cr.P.C., though it was wrongly brought under Section 374 of Cr.P.C., or the learned counsel wrongly incorporated Section 374 Cr.P.C. instead of Section 454 Cr.P.C. Now it would be cruel to direct the revision petitioner to file another appeal under Section 454 Cr.P.C. against the final order under Section 452 Cr.P.C., because there would arise the question Crl.R.P. No. 1323 of 2016 -4- of long delay. She cannot be made to suffer for the mistakes done by the counsel. In the above circumstances, I feel it absolutely necessary, in the interest of justice, to interfere in the orders passed by the court below to correct the mistakes, and to direct disposal of the appeal afresh under Section 454 of Cr.P.C.
In the result, this revision is allowed. The judgment of the court below in Crl.A.No. 618 of 2013 dated 27.5.2015 is set aside, and the criminal appeal is remitted to the court below with a direction to consider and decide the said appeal as an appeal brought under Section 454 of Cr.P.C. against the final order passed by the trial court under Section 452 Cr.P.C. The court below is also directed that the appeal shall be decided within three months from the date of receipt of a copy of this order.
Sd/-
P.UBAID JUDGE ds //True copy// P.A. to Judge