Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1696 (GAU)

Sohrab Khan S/o Lt. Goher Khan v. Mofijul Hoque S/o Lt. Motiur Rahman

2018-12-04

KALYAN RAI SURANA

body2018
JUDGMENT : Heard M. S.S. Sarma, learned Senior Counsel assisted by Mr. H.K. Buragohain, learned counsel for the petitioner. Initially none had appeared on call for the respondent although the name of the counsel for the respondent is reflected in the Cause-list, and as such at the request of this Court, Mr. B.B. Gogoi, learned Public Prosecutor has assisted this Court. Later on, Mr. M.H. Ahmed, the learned counsel for the respondent had appeared and he had made his submission. 2. By this petition under section 482 Cr.P.C., the petitioner has prayed for quashing of NICR Case No.2/2017 pending in the Court of learned Chief Judicial Magistrate, Chirang, Kajolgaon. 3. The petitioner is the accused in NICR Case No.2/2017 which was instituted under section 138 of the NI Act. The complaint case was beyond the prescribed period of limitation and, as such the said complaint case was accompanied by a separate application under proviso to section 142(b) of the NI Act read with section 5 of the Limitation Act which was registered as Misc. Case No.39/2016. 4. In the said application it was projected that the petitioner was under treatment under the Superintendent of JSB Civil Hospital, Kajolgaon from 29.05.2016 and the Doctor had advised him to take bed rest for 6 months from 01.06.2016 and hence, on account of the alleged disease of ‘chronic arthritis with neuritis’, the respondent had prayed for condoning the delay of 5 months and 21 days. 5. The learned trial Court i.e. the Court of CJM, Chirang, Kajolgaon by order dated 17.02.2017, without assigning any reasons allowed the prayer of the respondent to file NICR Case as per the provision of law. 6. The learned Senior Counsel for the petitioner has referred to the impugned order and it is submitted that the various cases cited by the respondent had no relevance with the issue projected by the said learned Court. It is submitted that in the case of P. Raju Vs. U. Ram Babu, (2013) 0 Supreme(Mad) 632, the delay of 6 days was found to have occurred instead of 676 days as projected in the application and therefore, the decision by the learned trial Court was not interfered in view of the amendment of the provisions of NI Act with effect from 06.02.2005. Hence, it is submitted that the said case was not a case where delay of 6 months was condoned. 7. Hence, it is submitted that the said case was not a case where delay of 6 months was condoned. 7. By referring to the medical certificate, the learned Senior Counsel for the petitioner has submitted that for the common place diseases like arthritis and neuritis, it is not believable that a person would suffer 6 months of bed-rest and, as such, the learned Senior Counsel for the petitioner submits that the learned trial Court ought not to have relied on such a medical certificate which is not supported by any other medical documents like test report, X-ray, etc. and there is also nothing on record to show that the respondent had taken any medicines prescribed by the said Doctor. 8. Referring to the case of Harman Electronics (P) Ltd. Vs. National Panasonic India (P)Ltd., (2009) 1 SCC 720 , and it is submitted that the ratio decided in the said case was nowhere related to condonation of delay but the issue therein was the question of jurisdiction of Court to entertain a complaint case wherein notice was not issued within the jurisdiction of the said Court. Hence, it is submitted that the reliance upon the said case of the learned trial Court was erroneous. 9. Also referring to the case of Pawan Kumar Rai Vs. Mahendra Singh Nerura (2015) 1 Bankmann (SC) 144, it is submitted that during the pendency of the trial, the petitioner therein moved the High Court on the ground that the complaint was barred by limitation and under such circumstances, the Hon’ble Supreme Court had relegated the parties back to the trial Court after setting aside the judgment of the Hon’ble High Court by restoring the criminal proceeding of the learned trial Court and, as such it is submitted that the ratio of the said case was not applicable in the present case. 10. The learned Senior counsel for the petitioner further submits that in the impugned order, the learned trial Court had not expressed any opinion that it was satisfied with the ground of delay as projected in the complaint case and, as such, it is submitted that the prayer of the petitioner was allowed in a mechanical manner without recording any satisfaction as to the existence of good and sufficient cause for condoning the delay. It is also submitted that the Misc. It is also submitted that the Misc. Case No. 39/2016 was a composite application under proviso to section 142 of the NI Act read with section 5 of the Limitation Act and in this connection it is submitted that as the provisions of section 5 of Limitation Act was invoked in this case, the petitioner was entitled to a notice before deciding the said application. 11. In the initial absence of the learned counsel for the respondent, Mr. B.B. Gogoi, the learned Additional Public Prosecutor has assisted this Court by making his submission by referring to various provisions contained in NI Act and by submitting in connection with section 5 of the Limitation Act. 12. Having perused the materials on record, it is seen that the learned trial Court in the last 2(two) paragraphs of the impugned order, has stated as follows:- “The reason of delay portrayed by the complainant in it is that he could not file the case within the period of time because of his medical treatment. Because of what has been pointed out and discuss above the prayer of the complainant is allowed and the complainant directed to file the NICR case as per provision of law before the Court. The Misc Case no.39/16 is disposed of on contest accordingly.” 13. On a perusal of the same it appears that the learned trial Court did not express his satisfaction on the ground of delay and the delay was condoned in a cavalier manner. Moreover, although no notice was issued on anyone in Misc. Case No.39/2016, the learned trial Court had mentioned in the order dated 17.02.2017 that Misc. Case No.39/2016 was disposed of on contest. 14. It is further seen that the medical certificate provided by the respondent was not accompanied with any supporting documents showing suffering of arthritis with neuritis and there is no document to show that the respondent had been prescribed any medication. It appears from the documents on record that the present complaint case being Misc. Case No.39/2016 and NICR Case No.2/2017 were both filed on 23.11.2016, which is before expiry of 6(six) month’s time for which bed rest was prescribed in the medical certificate. Therefore, if the medical certificate is to be believed w.e.f. 01.06.2016 he was advised bed-rest for 6 months. Case No.39/2016 and NICR Case No.2/2017 were both filed on 23.11.2016, which is before expiry of 6(six) month’s time for which bed rest was prescribed in the medical certificate. Therefore, if the medical certificate is to be believed w.e.f. 01.06.2016 he was advised bed-rest for 6 months. Hence, the appearance of the respondent in the trial Court on 23.11.2016 is admittedly 7 days prior to the expiry of the time prescribed by the Doctor for taking bed-rest. Therefore, it is apparent that the respondent has himself not adhered to the advise of the Doctor i.e. Superintendent of JSB Hospital, Kajolgaon. 15. Under the circumstances, this Court is of the considered view that the case cited by the respondent before the learned trial Court do not squarely apply on the facts of this case. 16. Having considered the fact that the respondent had produced a medical certificate before the learned trial Court, this Court is of the opinion that the respondent should get one more opportunity to establish his case by producing additional materials regarding the causes of delay. 17. Hence, by setting aside and quashing the order dated 17.02.2017 passed by the learned Chief Judicial Magistrate, Chirang, Kajolgaon, in Misc. Case No.39/2016, the proceeding of Misc. Case No.39/2016 is restored back to file. However, under the unique circumstances of the case, the petitioner is permitted to participate in the proceeding of Misc. Case No.39/2016 because in the application under section 5 of the Limitation Act, 1963, the petitioner has an inherent right to address the Court in the matter of condonation of delay, which in a relevant case may not be available if an application for condonation of delay was prayed for only under the proviso to section 142(b) of the NI Act. 18. This Court hastens to add that it is conscious of the fact that prior to taking of cognizance of a complaint case under section 202 and 204 of the Cr.P.C, the learned trial Court is not obliged to permit the accused to participate in the proceeding. However, in the present case as the provision of section 5 of the Limitation Act has been invoked, this Court is inclined to permit the petitioner herein to participate in the proceeding of Misc. Case No. 39/2016. However, in the present case as the provision of section 5 of the Limitation Act has been invoked, this Court is inclined to permit the petitioner herein to participate in the proceeding of Misc. Case No. 39/2016. However, it is made clear that this order has been passed under unique circumstances under the peculiar fact of the case and, as such, this order is not intended to be cited as a binding precedent. 19. After the dictation of this order had ended, Mr. M.H. Ahmed, the learned counsel for the respondent had appeared and explained that he was on legs in another Court for which he could not attend this matter on call. Accordingly, the learned counsel for the petitioner was heard on behalf of the respondent. The learned counsel for the respondent had made his submissions justifying the impugned order by submitting that the trial Court had a discretion to accept the medical certificate as a good ground for condoning the delay and he has submitted that prior to taking cognizance, the accused had no right to participate in the complaint proceedings. However, in view of the reasons already recorded herein before, no ground is made for sustaining the order impugned herein. 20. The interim stay in the proceeding of NICR Case No.2/2017 pending before the Court of learned Chief Judicial Magistrate, Chirang, Kajolgaon stands vacated. The petitioner shall appear before the learned Court of Chief Judicial Magistrate, Chirang, Kajolgaon on 07.01.2019 without any further notice of appearance and by producing a certified copy of this order, the petitioner shall seek further instruction from the said learned Court. 21. As a consequence, the proceedings of NICR Case No.2/2017, pending before the Court of learned Chief Judicial Magistrate, Chirang, Kajolgaon, shall remain stayed till the disposal of Misc. Case No.39/2016. 22. This revision, therefore stands allowed on terms as indicated herein below.