Court No. - 50
Case :- CRIMINAL APPEAL DEFECTIVE No. - 305 of 2018 Appellant :- Gaurav Respondent :- State Of U.P.
Counsel for Appellant :- Inder Jeet Bhardwaj,Rajesh Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
This is a defective Criminal Appeal filed beyond time by 423 days. An application u/s 5 of the Limitation Act has been filed with prayer to condone the delay in filing the appeal.
Heard learned counsel for the appellant, leaned AGA for the State and Sri Shirish Kumar Dwivedi holding brief of Sri Chandan Kumar, learned counsel for U.P. Power Corporation. Perused the record.
Learned AGA has raised a preliminary objection against the maintainability of the appeal by submitting that the impugned judgment dated 30.11.2016 whereby the appellant has been convicted and sentenced u/s 136 of the Electricity Act, clearly shows that the appellant has been convicted on the basis of his own confession. The appellant has pleaded guilty by moving an application before the trial court, as mentioned in paragraph no.
12 of the impugned judgment, and has also pleaded guilty during his statement recorded under section 313 Cr.P.C., as it appears by perusal of paragraphs 13 and 14 of the impugned judgment. Learned AGA has submitted that section 375 Cr.P.C. mandates that where an accused has pleaded guilty and has been convicted on such plea, there shall be no appeal except as to the extent or legality of the sentence. Learned AGA has further contended that as the memo of appeal shows that no such plea has been raised by the appellant challenging the extent or legality of the sentence, therefore, the appeal being not maintainable is liable to be dismissed at the admission stage itself and no purpose would be served by condoning the delay in filing this appeal.
Challenge in this appeal is to the judgment and order dated 30.11.2016 passed by the Special Judge E.C. Act, Hapur, in S.T. No. 1390 of 2015, State Vs. Shakeel and others, arising out of Case Crime No. 120 of 2015, u/s 136 Electricity Act, P.S. Dhaulana, District Hapur, whereby the appellant has been convicted u/s 136 of the Electricity Act and has been sentenced with one year and four months' R.I. and fine of Rs. 1000/- on the basis of his own confessional statement.
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Section 375 Cr.P.C. provides as under:
"375. No Appeal in certain cases when accused pleads guilty :- Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,-
(a) if the conviction is by a High Court; or
(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence."
On a perusal of the impugned judgment, it is clearly evident that the appellant has pleaded guilty, on the basis of which he has been convicted. In view of the above, appeal is barred by section 375 Cr.P.C. Apart from it, there is inordinate delay of 423 days in filing the appeal. Moreso, the memo of appeal shows that the appellant is in jail since 30.11.2016. He has been sentenced for a period of one year and four months rigorous imprisonment along with fine of Rs. 1000/-. Thus, he has already spent the entire period of sentence in jail. Annexure no.
1 to the affidavit also shows that the appellant has also deposited the entire amount of fine imposed on him by the court. Thus, the appellant has already served out the sentence awarded by the court below.
In view of the facts and circumstances, even if the delay is condoned, no purpose would be served.
Accordingly, the appeal is liable to be dismissed at the admission stage and is dismissed.
Order Date :- 30.3.2018 Pcl