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2005 DIGILAW 2190 (RAJ)

Mohan Singh v. State of Rajasthan

2005-08-18

BHAGWATI PRASAD

body2005
JUDGMENT 1. - This revision petition is directed against the order dated 19.1.1991 passed by the learned District and Sessions Judge, Merta, dismissing the petitioner's appeal as time barred and against the order dated 18.4.1990 whereby the petitioner's truck No. RSS 4104 ordered to be confiscated. 2. The facts of the case are that one Shravan Singh was found carrying, illegal timber in the above truck on 17.12.1988, who was punished with a fine of Rs. 250/- on his confession for offence under Section 41/42 of the Rajasthan Forest Act, 1953 vide order dated 31.1.1989 and a notice under Section 55 of the Rajasthan Forest Act, 1953 for confiscation of the truck was issued to the petitioner. The petitioner submitted a reply dated 16.5.1989 alleging therein that it was not in the -knowledge of the petitioner that the temporary driver Shravan Singh was carrying the timber in truck. It seems that the learned Munsif & Judicial Magistrate, First Class, Merta vide order dated 18.4.1990, passed the order of confiscation of truck after hearing learned Additional Public Prosecutor and in the absence of counsel for the petitioner. Against the order dated 18.4.1990 the petitioner preferred an appeal after expiry of period of limitation, alongwith an application for condonation of delay, which was duly supported by his affidavit. In the application for condonation of delay, the petitioner mentioned that he was not aware of the order dated 18.4.1990 till 8.1.1991 as it was not informed by his counsel. The order dated 18.4.1990 was passed in absence of petitioner's counsel. The petitioner for the first time learnt about the order dated 18.4.1990 on 8.1.1991 and the petitioner filed an appeal within time limit from the date of knowledge. The learned lower appellate Court, however, dismissed the petitioner's appeal as being time barred. 3. I have heard learned counsel for the petitioner, learned Public Prosecutor and perused the record. 4. The lower appellate Court has not gone into merit of the case but dismissed the petitioner's appeal only on the ground that it was barred by limitation since the petitioner had appeared before the learned Trial Court on 16.5.1989. According to the lower appellate Court, it was clear that the petitioner was having knowledge of the proceedings. 5. 4. The lower appellate Court has not gone into merit of the case but dismissed the petitioner's appeal only on the ground that it was barred by limitation since the petitioner had appeared before the learned Trial Court on 16.5.1989. According to the lower appellate Court, it was clear that the petitioner was having knowledge of the proceedings. 5. Learned Counsel for the petitioner submits that it is true that the petitioner had appeared before the learned Trial Court in pursuance of notice under Section 55 of the Forest Act and submitted his reply. However, it does not mean that the petitioner was present on the date of passing of the confiscation order by the Trial Court on 18.4.1990. He further submits that it is clear from the record that on 18.4.1990 the presence of neither the petitioner nor his counsel is recorded by the learned Trial Court. Under the circumstances, it cannot be said that the petitioner did not have sufficient cause for condonation of delay in filing the appeal. 6. Mr. Choudhary, learned counsel for the petitioner also contended that the Trial Court, without considering the material available on record, has passed the order of confiscation of the truck merely on surmises and conjectures, that too without hearing learned counsel for the petitioner which, if allowed to stand, would occasion substantial failure of justice to the petitioner. 7. The learned Public Prosecutor has supported the impugned orders and submitted that this Court may not substitute it's view on refusal to condone the delay by the appellate Court. Learned Public Prosecutor also contended that looking to the present scenario of increased forest offence, the Trial Court has rightly taken the strict view while passing the impugned confiscation order, after considering the reply of the petitioner. He prayed that the revision petition be dismissed. 8. In my considered opinion, a liberal approach in construing the provisions of Section 5 of the Limitation Act is to be adopted in the interest of justice. In the facts and circumstances of the case, the petitioner has sufficient cause for not filing the appeal within the period of limitation and the learned lower appellate Court had clearly fell in error while dismissing the appeal as time barred. In the facts and circumstances of the case, the petitioner has sufficient cause for not filing the appeal within the period of limitation and the learned lower appellate Court had clearly fell in error while dismissing the appeal as time barred. The learned Trial Court has neither recorded presence of the learned counsel for the petitioner in the impugned confiscation order, nor any submission on behalf of the learned counsel for the petitioner has been recorded, which shows that the impugned confiscation order has been passed without hearing learned counsel for the petitioner. Under the circumstances, the impugned confiscation order dated 18.4.1990 cannot be sustained. 9. In view of the above, this revision petition is allowed and confiscation order dated 18.4.1990 passed by the learned Munsif and Judicial Magistrate, Merta and also the order dated 19.1.1991, passed by the learned District and Sessions Judge, Merta, are quashed and set aside. The delay in filing of appeal is condoned and the matter is remanded to learned Munsif and Judicial Magistrate, Merta for deciding it afresh, in accordance with law.Revision Petition allowed. *******