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2019 DIGILAW 238 (MP)

Supa v. State of Madhya Pradesh

2019-03-15

V.P.S.CHAUHAN

body2019
ORDER : The applicants have filed this revision under Section 397/401 of the Cr.P.C. being aggrieved by the order dated 21.12.2018 passed in Criminal Appeal No. (unregistered)/2018 by Sessions Judge, Burhanpur whereby the application filed by the applicants under Section 5 of the Limitation Act has been dismissed. 2. The facts giving rise to this revision, in short, are that in Criminal Case No. 2041/2012 all the applicants were arrayed as accused. The case was pending before the JMFC, Burhanpur. JMFC after concluding the trial vide judgment dated 21.02.2014 convicted all the applicants for the offence punishable under Sections 294 and 323/34 of the IPC and sentenced to fine of Rs.500/- for the offence under Section 294 and sentenced to undergo till rising of the Court along with fine of Rs.1000/- for the offence punishable under Section 323/34 to each of the applicants with default stipulations respectively. 3. The applicants being aggrieved by that conviction and sentence passed by the trial Court filed an appeal before the Sessions Judge, Burhanpur under Section 374(2) of the Cr.P.C. on 15.11.2018. The appeal was not filed within the stipulated period of time, hence, the applicants filed an application under Section 5 of the Limitation Act along with appeal memo stating therein that on the date of judgment i.e. on 21.02.2014, advocate informed the applicants that their case has been disposed of, therefore, there is no need to appear further, as the learned Court did not convict the applicants for imprisonment. The applicants in happy mood went their home, but, at the time of election of Panchayat, when the applicant No. 2, for contesting the election collecting the documents, then someone told them that a criminal case was initiated against him. Copy of that judgment is needed for inspection in this regard. The applicants collected the certified copy of the judgment. On receiving certified copy of the judgment, he came to know that he was sentenced for imprisonment till rising of the Court. Then he along with other applicants decided to file an appeal before the Session Court. Thereafter, the applicants filed a memo of appeal along with application under Section 5 of the Limitation Act before the Appellate Court. Learned Appellate Court vide judgment dated 21.12.2018 has dismissed the application filed under Section 5 of the Limitation Act and in consequence to which also dismissed the appeal. 4. Thereafter, the applicants filed a memo of appeal along with application under Section 5 of the Limitation Act before the Appellate Court. Learned Appellate Court vide judgment dated 21.12.2018 has dismissed the application filed under Section 5 of the Limitation Act and in consequence to which also dismissed the appeal. 4. Being aggrieved by that order, the applicants have filed this revision on the ground that the Appellate Court has failed to appreciate that the limitation are not meant to destroy the rights of the parties, the delay occurred was bonafide. The applicants being illiterate trust on the counsel that the counsel would furnish the correct information, then they went their home with impression that only fine amount has been imposed upon them. The applicants when receiving certified copy of the judgment came to know that they were sentenced for imprisonment till rising of the Court. The delay caused is based on mala fide ground, therefore, prays for setting aside of the impugned order. 5. Learned Government Advocate has opposed the above prayer and submitted that the Court executed the sentence till rising of the Court. Accused was set free after closing of Court hours, it means that the applicants well within the knowledge that they had been sentenced till rising of the Court. When objection raised during the election, the applicants concocted the grounds and has filed application before the Appellate Court on mala fide ground. The appellate Court has rightly dismissed the application and not committed any illegality, irregularity or perversity in passing the impugned order, therefore, prays for dismissal of the revision. 6. Heard learned counsel for the parties and perused the record. 7. In this case, it is to be looked into whether the order passed by the trial Court is illegal, irregular or perverse. It is undisputed that the applicants were convicted on 21.02.2014 and sentenced till rising of the Court and fine of Rs.1,000/- for the offence punishable under Section 323/34 of the IPC. It is also clear from the record that at the time of imposing sentence, the applicants were present in the Court. 8. The applicants blamed on his counsel, who was engaged for conducting the case on their behalf before the trial Court, that advocate had not properly informed that they have been convicted for the imprisonment till rising of the Court. 8. The applicants blamed on his counsel, who was engaged for conducting the case on their behalf before the trial Court, that advocate had not properly informed that they have been convicted for the imprisonment till rising of the Court. The appeal was delayed by 4 years and 9 months. The limitation period for filing the appeal, as per Section 121 of the Limitation Act, is only 30 days. The appeal was badly barred by limitation. The Applicants filed application under Section 5 of the Limitation Act, in which the only cause shows by the applicants for delay is that they are innocent, they are under impression that only fine had been imposed upon them as the advocate did not inform them that they had been sentenced till rising of the Court. 9. Learned counsel for the applicants placed reliance on the judgment passed by this Court in the case of Om Puri Vs. State of M.P., 2005 (1) MPLJ 192 . In this case the appeal was time barred by only 2 months and in the present case, there was delay of more than 4 years. Learned counsel for the applicants also placed reliance on the judgment passed by the Hon’ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 Supreme Court Cases 123. In that case a civil suit was filed beyond limitation and application under Section 5 of the Limitation Act has been filed for condonation of delay, the appeal was barred by 883 days. In that situation, the Hon’ble Apex Court has held that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is only criterion. Sometimes, delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. The Hon’ble Apex Court in the case of Ram Nath Sao Alias Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, (2002) 3 Supreme Court Cases 195 has opined that sufficient cause can be decided only on the facts of a particular case. The Hon’ble Apex Court in the case of Ram Nath Sao Alias Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, (2002) 3 Supreme Court Cases 195 has opined that sufficient cause can be decided only on the facts of a particular case. Acceptance of explanation given should be the rule and refusal of exception. In both cases there was a civil dispute, the Hon’ble Apex Court explaining the sufficient cause as contemplated under Section 5 of the Limitation Act. 10. It is pertinent to note hear that if any conviction and sentence passed by the trial Court, the concerning Court is duty bound to provide copy of the judgment to the convicted person and if any one is sentenced till rising of the Court, he has to stand inside the Court or at any place where the Court directs. This fact is not acceptable that the advocate has not informed the applicants that they had been sentenced till rising of the Court. The applicants should have clearly been mentioned the name of the engaging advocate, so that the appellate Court may inquire that fact from that advocate. 11. On perusal of the application filed under Section 5 of the Limitation Act, the applicants nowhere mentioned the name of the advocate. They simply mentioned that on asking by them, the advocate stated that they had not been sentenced for any imprisonment. If this is the position, the affidavit of the counsel should have been filed along with the application under Section 5 of the Limitation Act or the name of the advocate should have been mentioned clearly in the application so that the Appellate Court may inquire into the matter with the advocate. 12. The cause of delay shows in the application filed under Section 5 of the Limitation Act before the Appellate Court were not sufficient. The appeal was filed after 4 years 9 months from passing of the judgment by the trial Court. This Court is not find any acceptable cause that can be categorized in the bona fide delay. Learned Appellate Court has not committed any error in dismissing the application filed under Section 5 of the Limitation Act for condoning the delay of 4 years and 9 months. 13. This revision devoid of merits and the same is hereby dismissed.