IMPORTANT POINT
A court cannot impose a condition to deposit part of the amount covered by the verdict as a prerequisite to condone delay in filing an appeal; appeals must be decided on their merits regardless of the presence of the appellant or counsel.

ORDER :

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

This revision petition has been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as ‘Cr.P.C.’ for convenience) challenging the judgment dated 12.11.2019 in Crl. Appeal No.102/2019 on the files of the Sessions Court, Thalassery arose out of the order dated 11.09.2018 in M.C. No.37/2014 on the files of the Judicial First Class Magistrate Court, Taliparamba. The revision petitioner herein is the respondent and 1st respondent herein is the petitioner in the M.C.

2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor, in detail. Though, notice was served to the 1st respondent, she did not appear. Perused the impugned order and relevant materials available.

3. The parties in this revision petition will be referred as ‘petitioner’ and ‘respondent’ relegating their status before the trial court.

4. Going by the impugned verdicts, the learned Sessions Judge dismissed Crl.M.P. No.2721/2019 in Crl.Appeal No.102/2019 seeking condonation of delay in filing the appeal merely on the ground the petitioner/appellant had not complied the direction as per the order dated 27.08.2019 to deposit some amount.

5. The learned counsel for the respondent/revision petitioner would submit that the appeal has been filed challenging the order dated 11.09.2018, whereby the learned Magistrate granted Rs.1,00,000/- as compensation to the applicant/1st respondent herein and granted maintenance at the rate of Rs.3,000/- per month to the applicant/1st respondent herein and Rs.1,500/- to her child from the date of the order. He also would submit that, there is another M.C. No.20/2016, filed at the instance of the petitioner/1st respondent before the Family Court claiming maintenance and there was payment of maintenance to the petitioner/1st respondent. According to the learned counsel for the respondent/revision petitioner, the payment ordered by the Magistrate in the proceedings under the Protection of Women from Domestic Violence Act has been substantially paid in the said M.C. But, the said aspect failed to be submitted before the First Appellate Court. Therefore, the impugned verdicts are liable to be set aside.

6. The learned Public Prosecutor not seriously opposed the relief sought for.

7. On perusal of the order impugned, Crl.M.P. No.2721/2019 in Crl.A. No.102/2019, the delay condonation petition was dismissed mainly for non compliance of the order dated 27.08.2019 directing payment of arrears of maintenance. Consequent to dismissal of the delay petition, appeal also was dismissed. The judgment in Crl.Appeal No.102/2019, would show that the learned Sessions Judge dismissed the appeal as under:

“Crl.M.P.2721/19 filed for condonation of delay dismissed due to non compliance of direction of the order dated 27.08.2019. Hence this Criminal Appeal not maintainable. Therefore Criminal Appeal dismissed.”

8. In this fatal background, the point arose for consideration is:

(1) Can a court impose a condition to deposit part of the amount covered by the verdict impugned, as a prerequisite to condone delay in filing an appeal?

9. When an appeal has been filed before the First Appellate Court, the procedure to be followed is well settled. This Court in the decision reported in Sajan V. v. State of Kerala [2023 KHC 723], held in paragraph No.16 as under:

16. Thus the legal position emerges is that when an appeal is not summarily dismissed under Section 384 of Cr.P.C and the appellate court admits the appeal, the same cannot be dismissed for non-representation or nonprosecution without adverting to the merits of the appeal. Further the appellate court is not bound to adjourn the appeal if both the appellant and his counsel are absent, but the appellate court can adjourn the matter to provide opportunity to the appellant or his counsel to argue the matter though the appellate court is not bound to do so. Even in the absence of appellant or his counsel, the appellate