Sabitri Banik (Bhowmik), wife of Sri Biplab Bhowmik v. Biplab Bhowmik, son of late Chitta Ranjan Bhowmik
2016-08-22
S.TALAPATRA
body2016
DigiLaw.ai
JUDGMENT & ORDER : 1. Heard Mr. P. Majumder, learned counsel appearing for the petitioner as well as Mr. K.N. Bhattacharji, learned Senior Counsel assisted by Mr. S. Pandit, learned counsel appearing for the respondents. 2. By means of this petition, filed under Section 397 read with Section 401 of the Cr.P.C., the petitioner has questioned the legality and propriety of the order dated 08.10.2015 delivered in Criminal Misc. Petition No. 19 of 2014 [in Criminal Appeal No. 07 of 2014 which has not been considered on merit as it was admittedly barred by Limitation]. Since the said appeal was barred by limitation, an application under Section 5 of the Limitation Act for condoning the said delay for purpose of preferring the appeal was filed by the petitioner. 3. It is to be noted that by the order dated 04.03.2013, delivered in GR 402 of 2010 the respondents were acquitted from the charge. The petitioner being the victim sought to challenge that order of acquittal by filing an appeal under proviso to Section 372 of the Cr.P.C., but in filing such appeal against acquittal by the victim, there was a considerable delay, according to the petitioner 476 days and according to the respondents 480 days. The petitioner is entitled to get 60 days for filing the appeal and as such, according to the petitioner, there was delay of 416 days but according to the respondents there was delay of 420 days. 4. Mr. P. Majumder, learned counsel appearing for the petitioner and bringing notice of this court to the causes as assigned in the petition has categorically stated that since the case was being looked after by the state, she did not know about the judgment. On 19.01.2014 when she received the summons of the case filed by one of the respondents [her husband] for dissolution of marriage, she came to know that by the order dated 04.03.2014, the respondent No.1, Sri Biplab Bhowmik was acquitted from the charge. She gathered such knowledge after 293 days from the day of judgment. From the said date of knowledge to the filing of that petition for condonation of delay, there was further delay of 181 days.
She gathered such knowledge after 293 days from the day of judgment. From the said date of knowledge to the filing of that petition for condonation of delay, there was further delay of 181 days. In explaining the said delay, the petitioner has made the following assertion in that petition : "Sri Sujit Ranjan Biswas on 17.04.2014 had requested him to arrange certified copy of acquittal order and on that he directed his clerk to obtain certified copy and in the meantime the appellant was persuing the clerk of Ld. Adv. Sujit Ranjan Biswas but the clerk has filed the petition for copy on 27.05.14 and obtained copy on 09.06.14 and handed over the certified copy and other records on 10.06.14." 5. On 30.06.2014, the memorandum of appeal and the prayer for condonation of delay were prepared. At that time, the petitioner was suffering from skin decease and she was compelled to stay in quarantine. Thus, the petitioner lost some more time in filing the appeal. 6. Mr. K. N. Bhattacharji, learned Senior Counsel appearing for the respondents has submitted that the account given by the petitioner is not trustworthy and the explanation are all fictional, merely to cover such inordinate delay of 420 days. Mr. Bhattacharji, learned Senior Counsel has urged this court to look at the conduct of the petitioner and also to the merit of the case. Unless there is an element of substantive justice this court does usually not entertain such petition for condonation of delay for a period of this nature. Mr. Bhattacharji, learned Senior Counsel has taken this court to the explanations given by the petitioner for demonstrating that all such causes are not based on truthful account. Rather those are the pieces together by way of concoction. In order to defend the impugned order, Mr. Bhattacharjee, learned Senior Counsel has strongly contended that there is no substance in the appeal. Only for purpose of harassing the respondents, the petitioner has embarked on the process. Therefore, this court should not show any leniency in condoning the delay. 7.
Rather those are the pieces together by way of concoction. In order to defend the impugned order, Mr. Bhattacharjee, learned Senior Counsel has strongly contended that there is no substance in the appeal. Only for purpose of harassing the respondents, the petitioner has embarked on the process. Therefore, this court should not show any leniency in condoning the delay. 7. On perusing the records including the deposition of the witnesses, this court is of the view that even though the causes as assigned have not adequately constituted the sufficient cause, but as the victim felt aggrieved by the order of acquittal and she has provided some tangible reasons including lack of her knowledge, this court is of the view that the impugned order dated 08.10.2015, delivered in Criminal Misc. No. 19 of 2014 is required to be interfered with and accordingly, it is interfered and set aside. After going through the causes as assigned in the petition filed under Section 5 of the Limitation Act being Criminal Misc. No. 19 of 2014, this court is of the further view that the said delay could be condoned and thus it is ordered accordingly. 8. In view of what has been observed above, this petition stands allowed. The petitioner and the respondents are directed to appear before the court of the Sessions Judge, South Tripura, Belonia on 16.09.2016. No further notice would be issued to them. If the appeal is admitted, the Sessions Judge, South Tripura, Belonia may hear the appeal within a short span of time, but by any rate the appeal should not be deferred beyond six weeks from the date as posted by this court. This order has been passed having due regard to the apprehension of the respondents that the appeal has been designed to harass them. Send down the LCRs forthwith. A copy of the order be supplied to the learned counsel for the parties for their use.