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2015 DIGILAW 985 (ALL)

Shah Alam v. State of U. P.

2015-04-24

ARVIND KUMAR MISHRA I

body2015
JUDGMENT Arvind Kumar Mishra (I), J. 1. Heard learned Counsel for the revisionist and the learned A.G.A. for the State. By means of instant Criminal Revision, the revisionist has challenged the judgment and order dated 13.1.2015 passed by the Additional Sessions Judge, Court No. 6, Aligarh in Misc. Criminal Case No. 387 of 2014-Sadiq v. State of U.P., arising out of case Crime No. 232 of 2010 under sections 498-A, 304-B, I.P.C. And section 3/4 Dowry Prohibition Act, Police Station Jawan district Aligarh, whereby the application moved under section 5 of the Indian Limitation Act, by respondent No. 2 has been allowed. 2. The submission has been advanced on behalf of the revisionist that opposite party No. 2 Sadiq Ali (complainant) had full knowledge of the order dated 25.2.2011 whereby the revisionist Shah Alam was declared juvenile and this observation very much finds mention in the order dated 13.1.2015, but the lower Appellate Court erroneously and irregularly, without any basis considered as sufficient cause fact of pendency of the writ petition filed by the revisionist/appellant, condoned the delay for about 4 years, which was not justified. There was no sufficient cause for condonation of delay of about 4 years. The order impugned dated 13.1.2015 passed in Misc. Criminal Case No. 387 of 2015, is liable to be set aside and quashed. 3. Learned A.G.A. Submits that the affidavit filed in support of delay condonation application moved under section 5 of the Indian Limitation Act before the Lower Appellate Court was not controverted specifically by filing any counter-affidavit and the version given on affidavit by the applicant (opposite party No. 2 (Sadiq Ali) was, therefore, considered to be appropriate explanation of the delay which was grounded on pendency of some writ petition/criminal revision before the High Court. The order impugned is justified under the given facts and circumstances of the case. 4. Considered the above rival submissions. 5. Before proceeding further with the case, it would be appropriate to take note of section 5 of the Indian Limitation Act which is quoted below: "5. The order impugned is justified under the given facts and circumstances of the case. 4. Considered the above rival submissions. 5. Before proceeding further with the case, it would be appropriate to take note of section 5 of the Indian Limitation Act which is quoted 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 XXI 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. Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 6. In the light of above mandate contained under section 5 of the Limitation Act, now the Court is concerned as to whether the application moved under section 5 of the Act succeeded in establishing sufficient cause for condoning the delay (or not)? 7. The facts giving rise to this case has the genesis in the first information report lodged on 13.6.2010 at Police Station Jawan district Aligarh, under section 498-A, 304-B, I.P.C. Section 3 /4 Dowry Prohibition Act at case crime No. 232 of 2010. 8. During the course of proceedings, bail application of the revisionist Shah Alam was moved before the Sessions Court, whereupon the same was taken up for hearing on 20.12.2010, wherein observation was made to the effect that the date of birth of the applicant is claimed to be 1.2.1993 and as per date of the incident 13.6.2010 he appears to be below 18 years of age, therefore, juvenility of the applicant may be determined by the Juvenile Justice Board, Aligarh and the matter was remitted for adjudication on the referred question of juvenility to the Juvenile Justice Board Aligarh. 9. Upon consideration of the matter, the Juvenile Justice Board vide its order dated 25.2.2011 declared the revisionist Shah Alam to be juvenile under section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000. 10. 9. Upon consideration of the matter, the Juvenile Justice Board vide its order dated 25.2.2011 declared the revisionist Shah Alam to be juvenile under section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000. 10. As per record, it is reflected against aforesaid order dated 20.12.2010 passed by Sessions Judge, Aligarh, was challenged by opposite party No. 2 Sadiq Ali in Criminal Revision No. 1585 of 2011 before this Court, wherein operation of the impugned order was stayed vide order dated 25.3.2011. Lastly on 12.8.2014 the aforesaid criminal revision was dismissed by this Court on ground that Shah Alam (present revisionist) has been declared juvenile by order dated 25.2.2011 passed by the Juvenile Justice Board, Aligarh, which order was not under challenge. 11. The complainant moved an appeal before the Sessions Judge, Aligarh supported by an application 11-Kha with affidavit 12-Kha under section 5 of the Limitation Act, 1963, against aforesaid order dated 25.2.2011. The Sessions Court after hearing both the parties on the point of condonation of delay, allowed the application under section 5 of the Indian Limitation Act in Criminal Case No. 387 of 2014 vide its order dated 13.1.2015. Consequently, this revision. 12. The challenge has been made on the ground that this application was moved after inordinate delay for almost 4 years. The order (declaration of juvenility) was passed on 25.2.2011, whereas the appeal was preferred after expiry of almost 4 years. The justification for condonation of delay was pointed out to be the pendency of criminal revision (No. 1585 of 2011) before the High Court. It was admitted to the applicant (opposite party No. 2) himself, that he was in the knowledge of the order impugned dated 25.2.2011. Once he was in the knowledge of the aforesaid order, there was no reason and no bar for the applicant (opposite party No. 2) not to prefer the appeal within time before the Appellate Court as prescribed under the relevant Act which period is confined to 30 days. The learned Additional Sessions Judge, has committed gross error by condoning the delay. 13. I have considered the above submissions and perused the record of the case. 14. In so far as the plea of limitation is concerned this much can be conveniently observed that under normal circumstance a case is to be prosecuted with the time prescribed under the Limitation Act. 13. I have considered the above submissions and perused the record of the case. 14. In so far as the plea of limitation is concerned this much can be conveniently observed that under normal circumstance a case is to be prosecuted with the time prescribed under the Limitation Act. But this period of limitation it self explains the situation when appeal/application can be entertained even after the expiry of the statutory period so prescribed for preferring application or appeal as the case may be. It is pertinent to take note of explanation appended to section 5 of Indian Limitation Act as extracted hereinbelow: ".......................................... Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 15. The very purport contained under section 5 of the Indian Limitation Act prescribes the eventuality that upon 'sufficient cause' being shown an application or Appeal can be admitted. The remedy so prescribed is discretionary and with a view to advance cause of substantial justice. While assessing the cause of delay generally the bona fides of the applicant is to be taken into consideration as to whether he had sufficient cause for not preferring the appeal or the application, as the case may be. But the 'sufficient cause' is to be taken and construed in liberal terms and not to be taken in strict orthodox sense. Deliberate negligence may never be treated to be a cause sufficient for condonation of delay. Precisely, what is sufficient cause would depend on particular facts and circumstances of the case. 16. In this case, at hand application 11-Kha was submitted with the accompanying affidavit, wherein, it was specifically averred that the order dated 25.2.2011 was no doubt known to the applicant, but the applicant could not and did not prefer the appeal, because the applicant had, earlier challenged the order of reference of Sessions Judge dated 20.12.2010 before the High Court and interim order was passed on 25.3.2011 and this proceeding concluded on 12.8.1014 when the petition was dismissed being infructuous. 17. 17. It was apparently one of the circumstances of the case that the order dated 20.12.2010 by which the Sessions Judge, Aligarh referred the matter for determination of juvenility itself stood disposed off by the order of Juvenile Justice Board on 25.2.2011, while the aforesaid, criminal petition was still pending. Therefore, the petition/criminal revision (1585/2011) preferred before the High Court became infructuous for which the applicant cannot be blamed. 18. It is obvious that no advantage was gained by the applicant when he kept on waiting for final outcome of the petition before the High Court. Further, reading of the order impugned dated 13.1.2015 makes it beyond doubt that the contents in the accompanying affidavit moved by the applicant alongwith his application 11-Kha was never controverted by the revisionist, before the concerned Sessions Court. Thus, his affidavit remained uncontroverted. 19. In this view of the matter, the averments made in the affidavit of the applicant were rightly believed and acted upon by the Additional Sessions Judge, Aligarh. Therefore, the delay occasioned in filing the appeal against the order dated 25.2.2011 was justified by sufficient cause and the delay was condoned accordingly. In this context the learned A.G.A. also claimed that merit of the case will be analyzed by the Appellate Court between the parties. Therefore, the order impugned does not suffer from any legal infirmity. 20. Delay condonation applications are to be given reasonable leniency and the same should not be rejected in hyper technical manner as the main issue remains open on merit between the parties. 21. Further technicality of case should not come in the way of delay condonation. In this regard the learned Additional Sessions Judge has rightly taken into account the principles laid down in Abdul Gafoor and others v. State of Bihar AIR 2012 SC 640 , and Improvement Trust Ludhiyana v. Ujager Singh and others 2010 (81) AIR 767 (SC). In view of the foregoing discussion, this revision lacks merit and is dismissed accordingly. ………………