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2015 DIGILAW 58 (CAL)

Suchandra Bhutoria v. State of West Bengal

2015-01-28

SHIB SADHAN SADHU

body2015
JUDGMENT SHIB SADHAN SADHU, J. 1. By filing the instant Revisional Application the petitioner seeks to quash/set aside the impugned order No.4 dated 4th September, 2014 passed by the Learned Chief Judge, City Sessions Court, Calcutta, in Criminal Appeal No.80 of 2014 dismissing the application under Section 5 of the Limitation Act, 1963 and thereby dismissing the Criminal Appeal No.80 of 2014 preferred by the present petitioner challenging the order dated 3rd March, 2014 passed by the Learned Chief Metropolitan Magistrate, Calcutta in connection with case No.M-13/2014. 2. The factual background giving rise to the instant application briefly stated is as follows:- The present petitioner filed an application on 01.03.2014 under Section 12 read with Sections 17/18/19/20/22 and 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”), seeking protection from domestic violence, maintenance and other reliefs against her brother-in-law (O.P. NO.2 herein). The Learned Chief Metropolitan Magistrate, Calcutta on hearing the learned Advocate for the petitioner granted exparte reliefs and passed order restraining the O.P. from committing any Act of Domestic Violence and also directed him to pay an interim monetary relief to the extent of Rs. 2,00,000/- for maintenance and Rs.30,000/- towards legal expenses. Being dissatisfied with such order, the petitioner preferred an appeal before the Learned Chief Judge, City Sessions Court, Calcutta under Section 29 of the Act praying for modification of the said order dated 03.03.2014 to the extent directing the O.P.No.2 to pay Rs.1,00,000/- per month as interim monetary relief. She also filed an application under Section 5 of the Limitation Act, 1963 praying for condonation of the delay of 104 days in filing the said appeal. That appeal was registered as Criminal Appeal No.80 of 2014. The Learned Chief Judge, City Sessions Court by passing the impugned order being order No.4 dated 04.09.2014 dismissed the application under Section 5 of the Limitation Act on the ground that there was delay of 117 days and not of 104 days as contended by the petitioner and that the ground for condonation of the delay was not properly explained nor it was satisfactory. Consequently the appeal preferred by the present petitioner was also not admitted. Being aggrieved by the said order the petitioner has now approached this Court with the instant Revisional Application. 3. Consequently the appeal preferred by the present petitioner was also not admitted. Being aggrieved by the said order the petitioner has now approached this Court with the instant Revisional Application. 3. I have heard Mr.Sabyasachi Banerjee, Learned Advocate appearing for the petitioner and Mr.Sandipan Ganguly, Learned Advocate appearing on behalf of the Opposite Party No.2. I have also perused all the available materials on record including the impugned order and judgment with meticulous care. 4. Mr. Banerjee, Learned Advocate appearing on behalf of the petitioner, submitted that the petitioner is a helpless and battered lady and she did not receive any maintenance from the O.P.No.2 and she has been living in a penurious condition. So she was under financial constraint to pursue the litigation. Further although she brought the anomaly appearing in the order dated 03.03.2014 before the Learned Additional Sessions Judge after the present O.P.No.2 preferred an appeal but she could not get any clarification as to whether she was to receive the amount as interim maintenance monthly or otherwise. Mr. Banerjee further submitted that there was some misunderstanding and lack of communication between the petitioner and her erstwhile Advocate and after engagement of the new set of Advocates the proper advice could be obtained and the appeal was preferred. All these factors caused the delay in presenting the appeal. Therefore, it cannot be said that there was no sufficient ground in not filing the appeal in time or that the explanation given by the petitioner for such delay was not satisfactory. Nor any negligence, inaction or want of bona fides can be imputed to the petitioner. According to him “sufficient cause” should be liberally construed by the Court to apply the law in a meaningful manner which sub-serves the ends of justice and not to throttle it by sticking to mere technicalities. On such premises he assailed the impugned order and submitted that it cannot withstand judicial scrutiny and is liable to be set aside. 5. Mr. Ganguly, Learned Advocate appearing on behalf of the O.P.No.2, on the other hand, submitted that the petitioner has not at all been able to show sufficient cause so as to impel the Court to condone the delay in preferring the appeal. On the contrary her conduct demonstrates that she was negligent and she consciously allowed the time to bide over. Ganguly, Learned Advocate appearing on behalf of the O.P.No.2, on the other hand, submitted that the petitioner has not at all been able to show sufficient cause so as to impel the Court to condone the delay in preferring the appeal. On the contrary her conduct demonstrates that she was negligent and she consciously allowed the time to bide over. He further submitted that in her application under Section 5 of the Limitation Act, she did not specify anything explaining cogently or convincingly the reason for such inordinate delay in filing the appeal. What she alleged was vague and smacks mala fide on her part. Therefore, the Learned Sessions Judge was quite justified in observing that she had only put the entire blame upon her legal counsel without mentioning his name or when she contacted him nor did she mention the date of receipt of the notice of the appeal. The Learned Sessions Judge, therefore, rightly held that the delay had not been properly explained nor the ground of delay assigned by the petitioner was satisfactory at all. He submitted further that a liberal construction of Section 5 can be made only where there is no negligence, inaction or want of bona fide on the part of the appellant. But since in the instant case the petitioner could not explain the delay satisfactorily and she failed to establish any specific cause the Learned Sessions Judge has rightly refused to entertain the appeal. On such backdrop this Court should not interfere with the discretion properly exercised by the Learned Sessions Judge and the impugned order be allowed to stand as it is. He relied on the decision reported in Soorajmull Nagarmal vs. Golden and Fibre Products, AIR 1969 Calcutta 381. 6. Having regard to the rival submission and contention advanced by the Learned Advocates in the light of the decision placed, I would like to say that in exercising discretion under Section 5 of the Limitation Act, 1963 Court’s approach should be pragmatic. The Hon’ble Supreme Court in the case of the Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji & Others, (1987) 2 SCC 107 : AIR 1987 SC 1353 observed that:- “3. The Hon’ble Supreme Court in the case of the Collector, Land Acquisition, Anantnag and Another vs. Mst. Katiji & Others, (1987) 2 SCC 107 : AIR 1987 SC 1353 observed that:- “3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 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. 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 mala fides. 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 7. 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 7. Thus, the Hon’ble Supreme Court in Collector, Land Acquisition vs. Katiji & Others, AIR 1987 SC 1353 held that the Court has to take liberal approach in respect of consideration of sufficient cause shown for condonation of delay so that it sub serves the enes of justice. Ordinarily a litigant does not stand to benefit while lodging an appeal late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold. Further, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. 8. In the present case, the petitioner by preferring the appeal sought to have a clarification of the impugned order passed by the Learned Chief Metropolitan Magistrate on 03.03.2014. The O.P.No.2 has also preferred an appeal against such order which is still pending. Therefore, if both the appeals are heard together, there cannot be any prejudice to any of the parties. On the contrary, if the petitioner is shut up she might lose her substantive right. It should be borne in mind that the petitioner is the victim of domestic violence and she has approached the Court for protection and vindication of her rights given to her in the said Act. Therefore, she should not be restrained to ventilate her grievance by preferring the appeal only on the ground that the same was presented after some delay. Such attitude will not be in the interest of justice. When question of substantial justice is pitted against the technical consideration, the cause of substantial justice deserves to be preferred and the matter should not be thrown at the threshold. Taking in to consideration all these circumstances, I find that the Learned Chief Judge, City Sessions Court, Calcutta erred in passing the impugned order dated 4th September, 2014 whereby he declined to condone the delay in filing the appeal. 9. For the aforesaid reason, this application is allowed. The impugned order being order No.4 dated 04.09.2014 passed in Criminal Appeal NO.80 of 2014 is hereby set aside. 9. For the aforesaid reason, this application is allowed. The impugned order being order No.4 dated 04.09.2014 passed in Criminal Appeal NO.80 of 2014 is hereby set aside. Consequently the delay is condoned and the appeal being Criminal Appeal No.80 of 2014 be admitted. Learned Chief Judge, City Sessions Court, Calcutta is directed to hear and dispose of both the appeals according to law as early as possible preferably within three months from the date of communication of this order. 10. Keeping in view the facts and circumstances of the case, relation between the parties, nature of the litigation and reliefs prayed for, I am not inclined to pass any order as to costs. 11. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the party, if applied for, as early as possible.