Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 399 (KER)

Sajitha v. State of Kerala

2010-06-06

THOMAS P.JOSEPH

body2010
JUDGMENT : Thomas P. Joseph, J. Learned Public Prosecutor takes notice for respondent. 2. Petitioners bailed out the accused in St No. 303 of 2006 of the Court of learned Chief Judicial Magistrate, Kollam on executing bond for Rs. 20,000/- each. That is the case registered for offence punishable under section 138 of Negotiable Instruments Act. The accused violated the bail conditions and thereon learned Chief Judicial Magistrate cancelled the bail. Proceeding was initiated against the petitioners, sureties. Though, the main case itself was settled between the accused and the complainant, learned Chief Judicial Magistrate as per order dated 30.6.2009 in M.C. No. 18 of 2009 ordered petitioners to pay penalty of Rs. 20,000/- each with a delay of 140 days, petitioners preferred an appeal before the learned Sessions Judge. They filed Crl. M.P. No. 3532 of 2009 to condone the delay, reason Stated being that first petitioner was pregnant during the relevant time, was advised to bed rest and could not take Steps to prefer an appeal and the second petitioner, also a lady was out of Kerala in connection with the job and hence the delay. Learned Sessions Judge was not impressed by the reason Stated for condonation of delay in that, first petitioner did not produce medical certificate to prove her pregnancy during the relevant time and reason Stated by second petitioner for her absence in the State cannot be accepted. Consequence was dismissal of Crl. M.P. No. 3532 of 2009 and resultantly the appeal as well. Order in Crl. M.P. No. 3532 of 2009 is under challenge in this revision. Learned Counsel submits that there was no reason to disbelieve the Statement of petitioners as to the reason for delay. Learned Counsel also submits that the fact of composition entered between the accused and the de facto complainant though, subsequent to initiation of proceedings in M.C. No. 13 of 2009 was not taken into account by the learned Sessions Judge. 3. I have heard learned Public Prosecutor also. 4. There can be no dispute that there was delay of 140 days in preferring the appeal before learned Sessions Judge. Section 5 of the Limitation Act which applies to Criminal appeals also permits and authorises the Court to condone the delay when "sufficient cause" is shown. 3. I have heard learned Public Prosecutor also. 4. There can be no dispute that there was delay of 140 days in preferring the appeal before learned Sessions Judge. Section 5 of the Limitation Act which applies to Criminal appeals also permits and authorises the Court to condone the delay when "sufficient cause" is shown. Courts have taken the view that the expression "sufficient cause" should receive a liberal interpretation taking into account the fact that the case has to be decided on merit and not on technicalities. This Court in John v. Mammukutty, 1985 KHC 15 = 1985 KLT 55 = 1984 KLJ 772 (though referring to a civil proceeding) Stated that the expression "sufficient cause" occurring in section 5 of the Limitation Act, 1963 must be liberally construed as to advance substantial justice unless the petitioner is guilty of contumacious conduct. The Same view was taken in Samuel Joseph v. Ramachandran Chellayyan 1991 KHC 80 1991 (1) KLT 218 . The Supreme Court in Ram Nath Sao alias Nath Sahu and others v. Gobardhan Sao and others, 2002 KHC 1182 = AIR 2002 Supreme Court 1201 = 2002 (3) SCC 195 , has also Stated that the expression "sufficient cause" should receive liberal construction so as to advance substantial justice when no negligence nor want of bonafide is imputable to the party. In Collector, Land Acquisition, Anantnag and another v. Mst. katiji and others, 1987 KHC 911 - AIR 1987 (2) SCC 107 , the Supreme Court Stated the reasons for adopting such liberal approach when considering the application under section 5 of the Limitation Act. Reason Stated are : 1. Ordinarily a litigant does not Stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of Justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not Stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so". 5. Supreme Court has also Stated that in spite of the varigus decisions rendered by it, the message does not appear to have percolated down at all the other Courts in the hierarchy. 6. This is a case where petitioners, two ladies offered themselves as sureties in a case involving offence under section 138 of the Act and though, accused violated the bail conditions, and though after initiation of M.C. Proceedings against the petitioners, the main case itself was settled. When the first petitioner Stated that she was pregnant during the relevant time I find no reason to think that she was making false Statements before the Court. The case pleaded by petitioners for condonation for delay ought to have been considered by learned Sessions Judge with a touch of reality and a little sympathy at least as the main case had been settled and hence it was not necessary to ensure the presence of accused In Court by coercive measures. As the Supreme Court has pointed out, Courts are respected not for its power to legalise injustice on technical grounds but for its power to remove injustice and it is expected to do so. I am not inclined to think that these petitioners, Saddled with liability to pay Rs. 20,000/- (Rupees Twenty Thousand only) each for the reason of accused violating the bail conditions purposely did not prefer the appeal on time and challenged the order of learned Chief Judicial Magistrate. I am not inclined to think that these petitioners, Saddled with liability to pay Rs. 20,000/- (Rupees Twenty Thousand only) each for the reason of accused violating the bail conditions purposely did not prefer the appeal on time and challenged the order of learned Chief Judicial Magistrate. Petitioners did not Stand to gain by such a conduct. I find that these aspects were not taken into consideration by the learned Sessions Judge. Learned Sessions Judge did not bear in mind that the purpose of proceeding under section 446 of the Code of Criminal Procedure, 1973 is to enforce attendance of the accused. Having heard learned Counsel for petitioners and the Public Prosecutor and going through the affidavit filed by first petitioner explaining the reason for delay I am Satisfied that the delay has been sufficiently explained and that petitioners were prevented to sufficient cause from not filing the appeal on time. I am therefore inclined to allow this petition. 7. Resultantly the revision petition is allowed. The order under challenge is set aside and Crl. M.P. No. 3532 of 2009 is allowed. Learned Sessions Judge is directed to deal with the appeal as provided under law. Petitioners shall appear in the Court of learned Sessions Judge on 24.5.2010.