Sunday, 26 June 2016

When court can condone delay in filing of criminal revision?

 Mr. Anand Keshari, learned advocate appearing for the opposite party
no.1/State does not raise any objection. On the contrary, he submits that the
petitioners have sufficiently explained the delay in preferring these applications.
Having regard to the rival submission and contention advanced by the
learned advocates, I would like to say that in exercising discretion under Section
5 of the Limitation Act, 1963, Court’s approach should be pragmatic. I would like
to mention further that the revisional power of the High Court is wide enough
and must be exercised to further the ends of justice. In cases of serious
miscarriage of justice, it possesses unfettered power to interfere.
 The Hon’ble Supreme Court in the case of Abdul Ghafoor & Another Vs.
State of Bihar reported in (2012) 1 C Cr.LR (SC) 57 was pleased to observe –
“……5. The law of limitation is indeed an important law on the statute
book. It is in furtherance of the sound public policy to put a quietus to
disputes or grievances of which resolution and redressal are not sought
within the prescribed time. The law of limitation is intended to allow things
to finally settle down after a reasonable time and not to let everyone live in
a state of uncertainty. It does not permit any one to raise claims that are
very old and stale and does not allow anyone to approach the higher tiers
of the judicial system for correction of the lower Court’s orders or forredressal of grievances at ones own sweet will. The law of limitation indeed
must get due respect and observance by all Courts. We must, however, add
that in cases of conviction and imposition of sentence of imprisonment, the
Court must show far greater indulgence and flexibility in applying the law
of limitation than in any other kind of case. A sentence of imprisonment
relates to a person’s right to personal liberty which is one of the most
important rights available to an individual and, therefore, the Court should
be very reluctant to shut out a consideration of the case on merits on
grounds of limitation or any other similar technicality.”
 In the present case, the petitioners have been convicted and sentenced to
suffer imprisonment. If the petitioners are shut up, they might lose their
substantive right and personal liberty. On the contrary, no prejudice will be
caused to the opposite parties if the delay is condoned and the matter is heard
and decided on merit.
IN THE HIGH COURT AT CALCUTTA
 CRIMINAL REVISIONAL JURISDICTION
Present:
The Hon’ble Justice Shib Sadhan Sadhu
 C.R.R. 307 of 2016
 with C.R.A.N. 305 of 2016
 Alka Sehgal & Ors.
 versus
 The State of West Bengal & Anr.

Judgement On : February 11, 2016.
Shib Sadhan Sadhu, J. :
Citation:2016 CRLJ 2030

1. By filing the instant revisional application, the petitioners seek to set
aside/quash the impugned judgement and order dated 29th April, 2015 passed
by the learned Additional District and Sessions Judge, Fast Track 2nd Court,
Bichar Bhawan, Calcutta in Criminal Appeal No. 54 of 2014 dismissing the
appeal ex parte for non-appearance of the appellants/petitioners on the date of
final hearing. The petitioners have also filed an application under Section 5 of theLimitation Act praying for condonation of delay of 181 days in preferring this
revisional application under Section 482 of the Code of Criminal Procedure.
2. Mr. Sandipan Ganguly, learned advocate appearing for the petitioners
submits that the petitioners were absolutely dependent upon their learned
conducting advocate in the matter of prosecuting the appeal before the appellate
court, but, unfortunately, their learned advocate did not appear on the dates of
hearing and as a result, the appeal was heard and decided ex parte. The
petitioners were in complete dark and had no knowledge about such ex parte
disposal of the appeal. Their learned advocate did not give any intimation to
them. Consequently warrants of arrest were issued against the petitioners after
the lower court record was sent back. When the warrants of arrest issued on 31st
December, 2015 were sought to be executed, then and then only the petitioners
became aware of the entire state of affairs. Thereafter, they contacted with their
learned advocate and have preferred this application under Section 482 of the
Code of Criminal Procedure alongwith an application for condonation of delay
being C.R.A.N. 305 of 2016.
3. Mr. Ganguly, learned advocate further submits that the petitioners, for
whatever reasons might be, have been denied the right and/or opportunity of
being heard in the appeal which they preferred against the judgement and order
of conviction passed by the Trial Court against them. Therefore, if the delay is not
condoned and they are not given opportunity to place their grievance before the
appellate court, they will be seriously prejudiced and it will also cause
miscarriage of justice. Therefore, according to him, the delay should be condoned
and the petitioners should be allowed to place their say before the appellate
court.
4. Ms. Sreyasi Biswas, learned advocate appearing for the opposite party
no.2/K.M.C. opposes such submission made by Mr. Ganguly and contends that
this Court while exercising revisional jurisdiction should not interfere with theimpugned judgement and order which has been passed correctly after proper
exercise of judicial discretion. She further contends that the plea taken by the
petitioners is neither convincing nor acceptable. Since they were convicted after
full trial and they preferred the appeal, it was their duty to be vigilant and they
cannot be relieved of such onus by shifting blame upon their learned advocate.
Therefore, according to her, the delay should not be condoned and the instant
petition under Section 5 of the Limitation Act as well as the revisional application
should be dismissed.
5. Mr. Anand Keshari, learned advocate appearing for the opposite party
no.1/State does not raise any objection. On the contrary, he submits that the
petitioners have sufficiently explained the delay in preferring these applications.
6. Having regard to the rival submission and contention advanced by the
learned advocates, I would like to say that in exercising discretion under Section
5 of the Limitation Act, 1963, Court’s approach should be pragmatic. I would like
to mention further that the revisional power of the High Court is wide enough
and must be exercised to further the ends of justice. In cases of serious
miscarriage of justice, it possesses unfettered power to interfere.
7. The Hon’ble Supreme Court in the case of Abdul Ghafoor & Another Vs.
State of Bihar reported in (2012) 1 C Cr.LR (SC) 57 was pleased to observe –
“……5. The law of limitation is indeed an important law on the statute
book. It is in furtherance of the sound public policy to put a quietus to
disputes or grievances of which resolution and redressal are not sought
within the prescribed time. The law of limitation is intended to allow things
to finally settle down after a reasonable time and not to let everyone live in
a state of uncertainty. It does not permit any one to raise claims that are
very old and stale and does not allow anyone to approach the higher tiers
of the judicial system for correction of the lower Court’s orders or forredressal of grievances at ones own sweet will. The law of limitation indeed
must get due respect and observance by all Courts. We must, however, add
that in cases of conviction and imposition of sentence of imprisonment, the
Court must show far greater indulgence and flexibility in applying the law
of limitation than in any other kind of case. A sentence of imprisonment
relates to a person’s right to personal liberty which is one of the most
important rights available to an individual and, therefore, the Court should
be very reluctant to shut out a consideration of the case on merits on
grounds of limitation or any other similar technicality.”
8. In the present case, the petitioners have been convicted and sentenced to
suffer imprisonment. If the petitioners are shut up, they might lose their
substantive right and personal liberty. On the contrary, no prejudice will be
caused to the opposite parties if the delay is condoned and the matter is heard
and decided on merit. Therefore, relying on the observation made by the Hon’ble
Supreme Court in the case of Abdul Ghafoor Vs. State of Bihar (supra), I am
inclined to allow the revisional application.
9. For the aforesaid reasons the delay is condoned and the application for
condonation of delay being C.R.A.N. 305 of 2016 is allowed.
10. The impugned judgement and order dated 29th April, 2015 passed in
Criminal Appeal No. 54 of 2014 is hereby set aside and consequently the criminal
appeal be remanded. The learned Additional District and Sessions Judge, Fast
Track 2nd Court, Bichar Bhawan, Calcutta is directed to hear the appeal afresh
after noticing both the parties and to dispose of the same as expeditiously as
possible, preferably within three months from the date of communication of this
order.
11. In view of the facts and circumstances of the case, I am not inclined to
pass any order as to costs.12. The revisional application being C.R.R. 307 of 2016 is accordingly disposed
of.
13. Urgent photostat certified copy of this judgement, if applied for, be given to
the parties upon compliance of all formalities.
 ( SHIB SADHAN SADHU, J. )
dc.
Print Page

No comments:

Post a Comment