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2014 DIGILAW 331 (CHH)

Brijlal Hidko v. State of Chhattisgarh

2014-09-03

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. This revision is directed against the order passed in Criminal Appeal No. 15/2011 (Brijlal and another v. State of Chhattisgarh) and also against the Criminal Appeal No. 14/2011 (Pankuram v. State of Chhattisgarh). The Criminal Case No. 23/2010 (State v. Kailash and others), in which, Brijlal Hidko, Sop Singh and Pankuram Kureti were accused. The trial Magistrate acquitted them and directed confiscation of their vehicle after appeal period. 2. The said judgment was delivered on 28/10/2010 and thereafter, two separate appeals were preferred against confiscation of vehicle. On 02/12/2011, learned Appellate Court dismissed both the appeals holding that Criminal Appeal No. 14/2011 preferred by Pankuram is delayed by 2 months and 13 days, whereas Criminal Appeal No. 15/2011 preferred by Brijlal and Sop Singh is barred by 16 days and no application for condonation of delay in appeal was filed by them. 3. Three accused persons preferred this revision against the aforesaid orders challenging the same. 4. Appearing for the applicants, Mr. B.D. Guru, learned counsel would submit that the Appellate Court ought to have granted an opportunity to file an application for condonation of delay in filing the appeal and would further submit that rejection of the appeal without affording an opportunity of hearing to file an application for condonation of delay has resulted in miscarriage of justice. 5. Appearing for the State/non-applicant, Mr. Vinod Tekam, Panel Lawyer would submit that since applicants have failed to file an application for condonation of delay along with time barred appeal, the Court had no option except to dismiss the appeal in absence of application for condonation of delay in filing the appeal, therefore, the revision deserves to be dismissed. 6. I have heard learned counsel appearing for the parties. 7. 6. I have heard learned counsel appearing for the parties. 7. Admittedly and undisputedly, two appeals filed by the applicants was barred by limitation and the applicants ought to have filed an application for condonation of delay in filing the appeal along with memorandum of appeal, but mere fact that the application for condonation of delay was not accompanied with the statutory appeal, the Appellate Court ought to have afforded an opportunity to the applicants to file an application for condonation of delay, as the vehicles owned by them has been directed to be confiscated in favour of the State by the trial Magistrate and by the order of the trial Magistrate, they are deprived of legal right to hold the property. It has not been shown that non-filing of said application for condonation of delay is either deliberate or mala fide. 8. The Supreme Court in case of State of M.P. and another v. Pradeep Kumar and another, (2000) 7 SCC 372 , has clearly held that the unintentional lapse on the part of a litigant should not normally cause the doors of judicature permanently closed and observed as under:- "12. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behavior than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effect of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who weeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine." In view of the foregoing analysis and keeping in view the principles laid down by their Lordship of Supreme Court, it is held that the order of the Appellate Court dismissing the appeal barred by limitation without affording an opportunity to the applicants to file an application for condonation of delay in filing the appeal has resulted in miscarriage of justice. Resultantly, the revision is allowed. Resultantly, the revision is allowed. The impugned order passed in Criminal Appeal No. 15/2011 (Brijlal and another v. State of Chhattisgarh) and Criminal Appeal No. 14/2011 (Pankuram v. State of Chhattisgarh) are set-aside. Criminal Appeal Nos. 15/2011 & 14/2011 are restored to the original file of Second Additional Session Judge, Jagdalpur at Kondagaon, Bastar for hearing and disposal in accordance with law. The applicants are granted 45 days time from the date of receipt of certified copy of this order to file an application for condonation of delay before the said Court. The appellate Court is directed to decide the appeals expeditiously. Petition allowed.