ORDER

Misc. Case No.88 of 2011

9.2.2011 — Heard learned counsel for the petitioners and learned Addl. Standing Counsel for the State.

2.This misc. case has been filed by the appellant-petitioners for condonation of delay of 133 days in filing the appeal.

3.The appellant-petitioners have filed the present Criminal Appeal challenging the judgment dated 2.7.2010 passed by the learned Addl. Sessions Judge, Rairangpur in C.T. Case No.6 of 2009 convicting and sentencing them to undergo rigorous imprisonment for a period of seven years for the offence under Sections 304 (II) read with Section 34 of the Indian INDIAN PENAL CODE.

4.The appellants are in custody since their arrest. They have preferred the appeal from the jail custody invoking the jurisdiction of this Court under Section 374(2) of the Criminal Procedure Code which provides for a right of appeal. The right of appeal against a judgment of conviction is also considered as a fundamental right of an accused enshrined in Article 21 of the Constitution of India.

5.Learned Addl.Standing Counsel for the State submitted that since there is delay of 133 days in filing the appeal, some cost may be imposed on the appellants to be paid to the Welfare Fund of the Orissa High Court Bar Association as a condition for condonation of delay.

6.Having given consideration to the rival submissions of the parties, the question arises to determine as to whether a person who files an appeal against an order of conviction after expiry of period of limitation can ask to pay cost for condonation of delay before admission of the appeal or in other words can a condition be put for entertaining the appeal which a constitutional and statutory right ?

7.A right to appeal provides under Section 374 of the Criminal Procedure Code against an order of conviction. The same is also the fundamental right of an accused as enshrined in Article 21 of the Constitution of India. The said Article 21 provides to a citizen for protection of life and personal liberty which reads that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. (emphasis supplied).

8.Procedure means, “Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Art.21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself.” (See AIR 1978 SC 1548, Madhav Hayawadanrao Hoskot v. State of Maharashtra)

9.A fair trial is the first imperative of the dispensation of justice. Further Article 22 of the Constitution of India gives protection against an arrest and detention in certain cases. Clauses I and II of the said Article 22 apply to a person arrested or detained under law otherwise than preventive detention. Article 21 supplement the various requirements laid down under Article 22 of the Constitution of India. Personal liberty is invaded by arrest and continues to be restrained during a period even if the person is on bail. Personal liberty cannot be cut out or cut down without fair legal procedure. Enough has been set out to establish that a prisoner deprived of his freedom by Court sentence but entitles to an appeal against such verdict as part of his protection under Article 21 of the Constitution of India and as implied in his statutory right of appeal. It is a fact that a prisoner regardless means are particularly handicapped class. The morbid cell which confines them to walls cut off from the world outside. Legal remedies, Civil and Criminal, are obtained beyond their physical and even financial reach. Under the said circumstances in case cost imposed on them to condone the delay in filing the appeal will cause further hardship, inconvenience and the same will be prejudicial to their interest. A fundamental right at no stretch of imagination can be taken away by way of technicalities.

10.Keeping in view the above requirement of law, in my view, it is elementary that a person when