Underling the importance of appeal in criminal law, the Punjab and Haryana High Court has ruled that the courts have to be careful before accepting a prayer of withdrawing an application for ‘condonation of delay’, and must examine the consequences of the withdrawal.
The single bench of Justice Manoj Bajaj has set aside the order of the appellate court of Nawanshahr (Punjab), which dismissed the application of delay of a convict in robbery and arms act case, Vipin Sharma. The HC bench has ordered that the appeal of Sharma be decided on merits in accordance with law after hearing the convict or his pleader. The HC also held that “it needs to be constantly borne in mind that in criminal law, there is only one remedy of appeal, therefore, it acquires much importance and said remedy cannot be allowed to be defeated on technical grounds”.
Sharma, through his counsel Advocate Deepak Verma, had contended before the HC that after being convicted by the trial Court in December 2016, he and his co-accused filed an appeal against the order at the appellate court. The appeal was filed by both the convicts jointly which carried a delay of two days and a separate application for it’s condonation was also filed.
It was submitted by petitioner that only on the statement of his counsel, the application for condonation of delay was withdrawn, and at the same time, the notice of the appeal qua co-convict was issued to the state.
While as the application for delay stood withdrawn, therefore, subsequently his appeal was dismissed on January 16, 2019 by the appellate court.
The petitioner has further contended that the counsel withdrew the application on the ground that the appellant has not contacted him and, therefore, the appellate court ought to have issued notice to the appellant before accepting the prayer. The acceptance of the request of the counsel for the appellant has adversely affected the petitioner as the appeal was finally dismissed without hearing the appellant, and thus the appeal filed by the co-convict is pending adjudication, therefore, his appeal be also restored for decision on merits. Meanwhile, the orders of dismissal of condonation of delay and appeal were never communicated to him either by his counsel or the appellate court and the petitioner acquired the knowledge only when the warrants were issued to his surety by the Chief Judicial Magistrate, Nawanshahr.
The counsel for Punjab, opposing the plea of Sharma, contended that once the appellant was represented by his counsel, therefore, he cannot plead ignorance in respect of the impugned orders passed by the appellate court.
Justice Bajaj held: “No doubt, every day the counsel make prayers before the courts for withdrawal of applications or petitions and such a authority is conferred upon them by their clients by execution of power of attorney. But at the same time, the courts have to be careful before accepting such a prayer and must examine the consequences of the withdrawal, keeping in mind nature of petition and the prayer made therein”. “…in cases, where the acceptance of request for withdrawal of the application or the petition would cause prejudice to the litigant by leaving him without redress, in that eventuality, the Court must not only seek explanation from the counsel, who makes the prayer, but should itself mention the reasons for acceptance in the order. The acceptance or refusal of such a prayer by courts is discretionary in nature and, therefore, it needs to be exercised on the strength of the sound judicial principles…,” said Justice Bajaj in the order.
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