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2015 DIGILAW 65 (BOM)

Bindu Kumar Mehta v. State of Maharashtra

2015-01-09

S.B.SHUKRE

body2015
Judgment 1. Heard. 2. Admit. 3. Heard finally by consent of the parties. 4. By this application, the applicant is invoking extraordinary jurisdiction of this Court under Section 487 (sic) of the Criminal Procedure Code to seek a respite from the order dated 5.8.2014 passed by the Court of Additional Sessions Judge, Nagpur rejecting the application of the applicant for condoning the delay that had occurred in filing a revision application against the order of issuance of process against him. 5. It is the contention of the learned counsel for the applicant that when cause of substantial justice and technical considerations are up against each other, side of cause of substantial justice should be taken by the Courts, as the very object of judicial system is to remove injustice. He submits that the learned Additional Sessions Judge ought to have seen as to whether the applicant had given explanation thereby indicating sufficient cause for exercising his power under Section 5 of the Limitation Act which he did not and, therefore, the impugned order is absolutely illegal and perverse inasmuch as its effect is to throw out a meritorious case on technical ground. He also submits that the applicant had been pursuing a wrong remedy under a bona fide belief that it was a right remedy and when his application filed for quashing of the proceedings was rejected by the learned Magistrate, it was realized by him that the application was wrongly filed and, therefore, he chose to file a revision application. This has also not been considered by the learned Additional Sessions Judge and as such he submits, the impugned order needs to be interfered with. In support, he places following cases; Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others, reported in AIR 1987 SC 1353 and Babaji Tukaram Gawas vs. Ashok Somnath Panigrahi and another, reported in 2014(1) Bom.C.R. (Cri.) 729. 6. Learned counsel for the Non-applicant No.2 submits that prosecuting of a wrong remedy is not a valid ground for condoning the delay in criminal proceedings as Section 14 of the Limitation Act has no application to the criminal proceedings. He also submits that no explanation whatsoever, except for prosecution of the wrong remedy, has been offered by the applicant and, therefore, the learned Additional Sessions Judge has rightly rejected the application. He also submits that no explanation whatsoever, except for prosecution of the wrong remedy, has been offered by the applicant and, therefore, the learned Additional Sessions Judge has rightly rejected the application. He also submits that because of the negligence of the applicant, the right accrued in favour of the Non-applicant No.2 had been settled and now, if this application is to be allowed, it would amount to reopening of the whole case depriving the Non-applicant No.2 of the right accrued to him, which is a right to prosecute the applicant in accordance with law. He places reliance upon the judgment of this Court in the case of Leela Fondu Mayekar and others vs. Damodar Datta Zuwarkar and another, reported in 2014(5) Mh.L.J. 718 . 7. So far as the contention that in criminal proceedings ground of prosecution of wrong remedy is not available as Section 14 does not apply to them is concerned, I find that learned counsel for the Non-applicant No.2 is right. Bare perusal of Section 14 of Limitation Act is enough to make this conclusion. 8. It is true that in the case of Collector, Anantnag the Hon'ble Apex Court has laid down the parameters which must weigh with the mind of the Court while exercising its discretion under Section 5 of the Limitation Act, 1963 and that these parameters followed in the case of Babaji (supra) by learned Single Judge of this Court are still binding upon the Courts. These parameters are: i) Ordinarily it should not be presumed that a litigant stands to benefit by lodging a proceeding late. ii) Refusal to condone delay can result in a meritorious matter being thrown out at the very threshold. iii) When the law says that "Every day's delay must be explained", it does not mean that a pedantic approach should be made. iv) When substantial justice and technical considerations are detect against each other, a cause of substantial justice must be referred. v) There is no presumption in law that the delay is deliberate or on account of culpable negligence or on account of mala fides. vi) Judiciary is respected not because it has power to legalize injustice on technical grounds but because it is capable removing injustice and is expected to do so. 9. v) There is no presumption in law that the delay is deliberate or on account of culpable negligence or on account of mala fides. vi) Judiciary is respected not because it has power to legalize injustice on technical grounds but because it is capable removing injustice and is expected to do so. 9. After this judgment, the law governing discretionary powers of the Court under Section 5 of the Limitation Act, 1963 has been developed further by the Hon'ble Apex Court. In the case of Balwant Sing (dead) vs. Jagdish Singh and others, reported in 2010(6) ALL MR 480 (S.C.) the Hon'ble Apex Court has held that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party. It has also held that for the purpose of liberal construction normally is to introduce concept of "reasonableness" as it is understood in general connotation. It has also held that the law of limitation is a substantive law having definite consequences on the rights and obligations of parties and, therefore, if by the negligence on the part of one side a valuable right accrued in favour of another party has been settled, it would be unreasonable to take it away on the mere asking of the applicant. Therefore, this law which has been followed by this Court in the case of Leela Fondu Mayekar and others vs. Damodar Datta Zuwarkar and another, reported in 2014(5) Mh.L.J. 718 will also have to be taken into consideration while exercising the discretionary powers under Section 5 of the Limitation Act, 1963, and taking into consideration the same, I find that since there has been a gross negligence on the part of the applicant in not explaining in a legally permissible way the delay of about 277 days that has taken place in this case, a corresponding right has accrued in favour of Non-applicant No.2 and it is a right to prosecute the applicant in accordance with law, which is an important right conferred upon the victims of crime. This right, because of the negligence shown by the applicant, as can be seen from the absence of any explanation given by the applicant for the delay, has finally accrued to the respondent No.2 and it would be unreasonable to take it away from him. 10. This right, because of the negligence shown by the applicant, as can be seen from the absence of any explanation given by the applicant for the delay, has finally accrued to the respondent No.2 and it would be unreasonable to take it away from him. 10. In this view of the matter, I am not inclined to interfere with the impugned order, which I do not find to be illegal, perverse or arbitrary in any manner. That apart, by rejecting this application, no prejudice is going to be caused to the applicant as it is still open to him to put forward his defence as permissible under the law and seek acquittal from the criminal Court. 11. The application is, therefore, rejected.