CRLP/8617/2009 of G.D.D. Diwakar Vs The State of Andhra Pradesh on 30 December 2011

ORDER:

This Criminal Petition is filed by the petitioner/Accused No.2(For short, ‘A-2’) under Section 482 Cr.P.C. seeking to quash orderdated 13-10-2009 passed in Criminal Appeal No.355 of 2008,registered for offence punishable under Section 420 I.P.C. by theMetropolitan Sessions Judge at Hyderabad

2. Whereas the Petitioner is A-2, the Respondent No.2 is thecomplainant in the Calender Case. For the sake of convenience, I referthe parties as arrayed in the Calender Case.

3. A-2 was tried for the offence punishable under Section 420 IPCin C.C. No.378 of 2002, on the file of X Additional Chief MetropolitanMagistrate, Secunderabad, and convicted and sentenced under thatcount against which he preferred Criminal Appeal No.355 of 2008 onthe file of the Court of Metropolitan Sessions Judge, Hyderabad whichwas dismissed confirming the conviction and sentence imposed by thetrial Court. Challenging the said order, he has preferred this CriminalRevision Case No.1035 of 2011 before this Court. The appeal wasposted to 07.09.2009 but on that date he could not appear before theappellate Court and thereby the Court issued NBW against him. Later,on his behalf Civil M.P. No.721 of 2009 was filed to recall the NBW butit was dismissed on 09.09.2009. Then, on his behalf Tr.Crl.M.P.

No.355 of 2008 was filed before this Court to transfer the case to anyother competent Court and on 25.09.2009 the matter was stayed. On13.10.2009 when the matter was called on his behalf a memo wasfiled indicating about the transfer application and also about calling fora report in the matter, but the Court forfeited the bond and issueddistress warrant and notices to his sureties.

4. Heard the learned counsel for A-2 and the learned AdditionalPublic Prosecutor appearing for the respondent-State.

5. The point for consideration is whether the impugned order isviolated and is not sustainable and liable to be set aside?

6. By virtue of Section 447 Cr.P.C. when the accused failed toappear before the Court and the learned Sessions Judge wanted totake necessary action, necessary proceedings were to be opened andhe was to be examined giving opportunity of being heard before takingnecessary action in the matter but that procedure was not followed bythe learned Sessions Judge. However, significantly, the Appeal wasdisposed of, against which, the Criminal Revision Case was alsopreferred. Therefore, the impugned order is to be set aside.

Accordingly, the Criminal Petition is allowed setting aside theorder dated 13-10-2009 passed in Criminal Appeal No.355 of 2008.

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Dated:30-12-2011.Dsh.

G. KRISHNA MOHAN REDDY, J

THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY

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CRIMINAL PETITION No.8617 OF 2009

December, 30, 2011

DSH