Rana Pratap v. State of U. P. — 1969 DIGILAW 188 (ALL)

JUDGMENT B.D. Gupta, J. - The controversy before me today arises out an office report to the effect that the memo of revision was beyond time by four days on May 13, 1969, on which date the applicants' counsel presented the memo of revision to the office for reporting. In order to appreciate the controversy the relevant facts may be briefly stated. 2. The applicants were parties to proceedings under Section 145 Cr.P.C. In those proceedings Smt. Ramrati constituted the first party, whereas the applicants constituted the second party. The learned Sub-Divisional Magistrate, by order dated June 6, 1968, held that the first party had been in possession over the disputed land during the relevant period and passed orders accordingly. Against the aforesaid order the second party, i.e., the applicants in this revision, moved the learned Sessions Judge by an application under Section 435 Cr.P.C. This revision was dismissed by an Additional Sessions Judge on February 1, 1969. Thereafter memo of the present revision was presented to the office of this Court on May 13, 1969, for obtaining an office report thereon. The memo of revision was accompanied by certified copies of the order of the learned Sub-Divisional Magistrate dated June 6, 1968, and the order of the learned Additional Sessions Judge dated February 1, 1969. The relevant portion of the office report as regards limitation was that the memo of revision was within time only upto May 9, 1969, and therefore, on May 13, 1969, it was beyond time by four days. Thereafter the memo of revision was actually presented before me in Court on May 21, 1969, and was listed before me for orders on May 23, 1969. When the case was taken up my attention was drawn to the report of the office that it had become barred by limitation on May 9, 1969. Learned counsel for the applicants challenged the report and urged that limitation for presenting the revision expired on June 4, 1969, and presentation of the revision on May 21, 1969, was therefore, well within time. Since the office report appeared to me to be incorrect I directed the revision to be listed again with a fresh office report making it clear as to how the office had taken the view, as evidenced by its report dated May 13, 1969, that limitation for the revision expired on May 9, 1969. Since the office report appeared to me to be incorrect I directed the revision to be listed again with a fresh office report making it clear as to how the office had taken the view, as evidenced by its report dated May 13, 1969, that limitation for the revision expired on May 9, 1969. I have now before me a detailed report of the office on the matter. In this report it has been stated that if the time spent by the applicants in obtaining the certified copy of the order of the learned Sub-Divisional Magistrate was excluded, the memo of revision would be within time upto June 4, 1969. This report further states that the report of the office dated May 13, 1969, is founded on the view that, whereas the applicants are entitled to exclusion of the time taken in obtaining a certified copy of the order of the learned Addl. Sessions Judge in revision, the applicants are not entitled to exclusion of the time taken by them in obtaining a certified copy of the order of the learned Sub-Divisional Magistrate. The question which, there-force, has arisen is as to whether, in computing the period of limitation for filing a revision in this Court, the applicants are entitled to exclusion of the time taken in obtaining a certified copy of the order of the first court. The case was listed before me yesterday and at the request of counsel representing the State it was directed to be listed again today to enable him to assist this Court in recording its decision on the above question and, having heard the Government Advocate who appeared before me today, as also Mr. Prabodh Gaur who appeared for the applicants, I have no doubt that the answer to the question must be in the affirmative. 3. In cases where the order of the trial court is appealable to the Sessions Court the decision of the trial court merges in the appellate decision of the Sessions Court. In such cases if a party files a revision in this Court such party is required to file certified copies of the orders recorded by the trial court as also the appellate court. In such cases if a party files a revision in this Court such party is required to file certified copies of the orders recorded by the trial court as also the appellate court. Similarly, in those cases where the order of the trial court is not open to appeal with the result that the party aggrieved files a revision in this Court under Section 439 Cr.P.C. after having unsuccessfully invoked the jurisdiction of the learned Sessions Judge (or District Magistrate) under Section 435 Cr.P.C. to make a recommendation to this Court recommending the setting aside of the order of the trial court, the memo of revision has to be accompanied by certified copies of the order passed by the first court as also the order passed in revision by the Sessions Judge or Distt. Magistrate. The rule that governs the necessary copies is the same, i.e., R. 5 of Ch. XVIII of the Rules of this Court. The mere fact that it is incumbent on a party to file certain certified copies would prima facie entitle such party to exclusion of the time taken by the party in obtaining the necessary copies. What appears, however, to be conclusive is the provision contained in clause (2) of Section 12 of the Limitation Act which runs as follows: "In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of, was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded." The aforesaid provision appears to make it clear that in computing the period of limitation for a revision the time requisite for obtaining a copy of the order sought to be revised shall be excluded. The office of this Court appears to have been taking the view that in case of a revision under Section 439 Cr.P.C. the order sought to be revised is the order of the Sessions Court and not the order of the learned Magistrate. This view appears to be altogether unfounded and incorrect, except in cases where the order sought to be revised is an order of a court of appeal confirming, modifying or setting aside an order of the trial court. 4. This view appears to be altogether unfounded and incorrect, except in cases where the order sought to be revised is an order of a court of appeal confirming, modifying or setting aside an order of the trial court. 4. In cases like the present, where the order of the first court is not open to correction by way of appeal and the only remedy open to an aggrieved party is to seek relief by an application in revision, the order of the learned Sessions Judge deciding a revision under Section 435 Cr.P.C. cannot be construed as the order `sought to be revised' when the aggrieved party approaches this Court by filing a revision under Section 439 Cr.P.C. It may be pointed out here that, though the law does not specifically lay down that before approaching this Court to exercise its revisional powers under Section 439 Cr.P.C. the party aggrieved must approach the Sessions Court, the practice of this Court has been not to entertain a revision under Section 439 Cr.P.C. unless that party had already approached the Sessions Court and had failed to obtain any relief from that court. A perusal of the provisions contained in Sections 437 and 438 Cr.P.C. would make it clear that in quite a large variety of cases the Sessions Judge or the District Magistrate, as the case may be, cannot afford any relief making a reference to this Court. The present case manifestly was a case in which all that the learned Additional Sessions Judge could do was to make a recommendation to this Court in favour of the applicants. In this case the order of the learned Additional Sessions Judge dated February 1, 1969, whereby the revision filed on behalf of the applicants was dismissed, amounted to nothing more than refusal to recommend to this Court that the order of the learned Sub-Divisional Magistrate be interfered with or modified. In substance the position that arose after the learned Additional Sessions Judge dismissed the revision filed on behalf of the applicants was that the applicants had no other alternative left except to approach this Court for relief against the order passed by the learned Sub-Divisional Magistrate. I have no doubt that by filing this revision, as also all similar revisions, the applicants seek revision of the order passed by the learned Magistrate and not the order passed by the learned Sessions Judge. I have no doubt that by filing this revision, as also all similar revisions, the applicants seek revision of the order passed by the learned Magistrate and not the order passed by the learned Sessions Judge. There is nothing in the language of Section 439 Cr.P.C. or any other provision incorporated in that Code, to indicate that when an aggrieved party approaches this Court to exercise its revisional powers under Section 439 Cr.P.C., after having failed to persuade the learned Sessions Judge in revision to interfere, or recommend interference, with the order of the first court, he seeks revision of the revisional order passed by the learned Sessions Judge and not the order of the first court in regard to which the Sessions Judge refused to interfere or recommend interference by this Court. I have no doubt, therefore, that, apart from the principle that in computing limitation the time taken in obtaining certified copies of the orders which are required to be filed should be excluded, the time taken by the applicants in the present case in obtaining a certified copy of the order of the learned Sub-Divisional Magistrate must be excluded by reason of the specific provision contained in clause (2) of Section 12 of the Limitation Act for the reason that the order which the applicants seek to be revised by filing the present revision is the order of the learned Sub-Divisional Magistrate dated June 6, 1968, and not the order of the learned Additional Sessions Judge dated February 1, 1969. 5. In this view of the matter I direct that this revision be treated as having been filed within time.