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2008 DIGILAW 1105 (CAL)

Dilip Das v. STATE OF WEST BENGAL

2008-12-24

ARUNABHA BASU

body2008
JUDGMENT Arunabha Basu, J. 1. The application under section 5 of the Limitation Act, 1963 (hereinafter called the Act) is filed by the petitioners in connection with the appeal for condonation of delay of 114 days, in preferring the criminal appeal against the order of conviction and sentence passed by the learned Court below. 2. Petitioners were facing trial in connection with case being S.T. No.8(6) [05 S.C. No. 3(2) 05]. The trial was heard and decided by learned Additional Sessions Judge, Fast Track 1st Court, Baruipur and by judgment and order of conviction and sentence dated 10.4.2008. Petitioners herein were found guilty to the charge under section 498A of the Indian Penal Code and after conviction they were sentenced to suffer S.I. for three years each and to pay fine of Rs.5,000/- each in default to suffer S.I. for one year each. As already observed the aforesaid order of conviction and sentence, was passed by learned Court below on 10.4.2008. . 3. In the application filed under section 5 of the Limitation Act, petitioners took the following grounds: 1. That one Muhari Babu, who was conducting the case of the petitioners before the learned Court below, did not advice them to file an appeal before the High Court. 2. The petitioners are illiterate village people, having no idea about the next step to be taken after they were granted bail by the learned Court below. 3. In the month of September, 2008, one local lawyer came to know from the appellants that no appeal was filed before the High Court. In the mean time the said lawyer took the petitioners to one practising lawyer of the High Court, who advised them to contact learned Advocate Sri Pinaki Bhattacharyya, a practising Advocate of this Court. 4. Learned Advocate Sri Pinaki Bhattacharyya advised the appellants to collect all the papers including copy of the judgment from the Muhari Babu, who conducted their case before the learned Court below. 5. Thereafter, the Muhari Babu after taking money, supplied all the papers to the appellants. 6. The petitioners thereafter, contacted learned Advocate Sri Pinaki Bhattacharyya, who advised them to file an appeal before this Court. 7. 5. Thereafter, the Muhari Babu after taking money, supplied all the papers to the appellants. 6. The petitioners thereafter, contacted learned Advocate Sri Pinaki Bhattacharyya, who advised them to file an appeal before this Court. 7. The petitioners submit that there was no intentional latches on their part and they were ignorant about the procedure to be adopted and also due to act done by the said Muhari Babu, there is delay of 114 days in preferring appeal before this Court. 4. Under Article 115 (b) of the Limitation Act the period of 60 days is available in preferring an appeal before this Court and such period of limitation shall commence on and from the date of the order. 5. Section 5 of the Limitation Act provides for extension of prescribed period in certain cases. The said section is reproduced below: "5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." 6. Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood. The words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. 7. However, it may be pointed out that in order to fall within the category of 'sufficient cause', it has to be shown that the cause which arose preventing the appellant to prefer the appeal within the period of limitation as prescribed under the act was beyond the control of the party. 8. In other wards the 'sufficient cause' must arise before expiry of the period of limitation. In this connection the decision in Supreme Court reported in Ajit Singh Thakur Singh & Anr. Vs. 8. In other wards the 'sufficient cause' must arise before expiry of the period of limitation. In this connection the decision in Supreme Court reported in Ajit Singh Thakur Singh & Anr. Vs. State of Gujarat, reported in AIR 1981 SC 733 , may be referred to, wherein the Hon'ble Supreme Court held as follows: "It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay. 7. It is pointed out that the High Court could have sent for the record in the exercise of its revisional jurisdiction and examined the case. That is quite another matter and raises other questions. We are concerned here with the question whether the delay in filing the appeal could have been condoned." 9. It is not clear to me as to how the initial ground advanced by the petitioners herein that their trial was conducted by a Muhari Babu before the learned Court below, can at all be taken for consideration. The words 'Muhari Babu' indicates the lawyer's clerk and the lawyer's clerk is not and cannot conduct and participate in connection with trial as lawyer. It has to be borne in mind that petitioners herein faced trial for commission of offence punishable under section 302/304B/498A of the Indian Penal Code. Learned Court below on conclusion of trial acquitted the petitioners from charge under section 304B/302 of the Indian Penal Code but convicted the petitioners for the charge under section 498A of the Indian Penal Code, in the manner as stated above. 10. Learned Court below on conclusion of trial acquitted the petitioners from charge under section 304B/302 of the Indian Penal Code but convicted the petitioners for the charge under section 498A of the Indian Penal Code, in the manner as stated above. 10. It is admitted by the petitioners that after order of conviction and sentence, they were granted bail by the learned Court below and as such the plea of innocence of the petitioners that they are illiterate village people, cannot be accepted. 11. It may however, be pointed out that petitioners have not mentioned any date when they contacted the local lawyer, or did not even disclose the name of the local lawyers, whom they contacted. The name of the Muhari Babu, who according to petitioners, conducted the trial was not even disclosed. 12. It is casually stated in the application that a local lawyer in the month of September, 2008, came to know from the petitioners that no appeal was preferred before the High Court. 13. So, it is evident that by September, 2008, the period of limitation is already over and following the decision of the Supreme Court as referred to above, all subsequent grounds after the expiry of the period of limitation, cannot and does not fall within the category of 'sufficient cause' as prescribed under section 5 of the Act. 14. It is pointed out here that section 5 is an exception to the general rule that appeal has to be preferred within a period of 60 days from the date of sentence or order. 15. When a person is moving the Court for accepting his plea for 'sufficient cause', then he must approach the Court with such grounds under which the Court can reasonably conclude that the petitioners were prevented by reasons beyond his control to prefer the appeal within the statutory period of limitation. Any and every cause does not and cannot fall within the meaning of 'sufficient cause' as provided under section 5 of the Act. 16. So far as the present application is concerned, I am of the view that even taking a liberal approach; I do not find any of the grounds advanced by the petitioners to be sufficient ground. The case was initiated in the year 2002 on the basis of FIR, which was lodged on 10.7.2002. 16. So far as the present application is concerned, I am of the view that even taking a liberal approach; I do not find any of the grounds advanced by the petitioners to be sufficient ground. The case was initiated in the year 2002 on the basis of FIR, which was lodged on 10.7.2002. After submission of chargesheet, the sessions trial was initiated in the year 2005. The petitioners herein all along faced trial and it cannot be accepted that during the entire course of proceeding, they were completely ignorant or that they were not properly advised by the learned Advocate, conducting the trial on their behalf. It is somewhat curious that the petitioners never disclose the name of the lawyer who conducted their defence either before the Court of learned Magistrate where the case was pending before the order of commitment or before the Court of Sessions during trial. 17. In view of my above discussion, I am unable to accept that the petitioners could establish sufficient grounds within the meaning of section 5 of the Act justifying condonation of delay in preferring the appeal. 18. The application being C.R.A.N. No. 2692 of 2008 stands dismissed. In view of disposal of the application under section 5 of the Limitation Act, the appeal being C.R.A. No. 664 of 2008 cannot be admitted and the same stands disposed of accordingly. 19. The application under section 5 of the Act is devoid of any merit and accordingly dismissed. 20. There shall be no order as to costs. 21. Criminal Section is directed to supply urgent photostat copy of the order to the petitioners as and when applied for. 22. Criminal Section is directed to send a copy of the order to learned Court below and the learned Court below shall take immediate steps for execution of the sentence imposed against the petitioners/appellants. Appeals dismissed.