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2024 DIGILAW 252 (CAL)

Md. Nizamuddin v. Om Prakash Shaw

2024-02-05

BIBHAS RANJAN DE

body2024
JUDGMENT 1. Petitioner claiming to be a senior citizen invoked provision of Section 378 (4) of the Code of Criminal Procedure (for short CrPC) by filing a special leave petition to file appeal against the order of discharge of the opposite party (for short O.P) herein passed by Learned Additional Sessions Judge, 6th Court, Alipore on 30.03.2023. 2. Petitioner initiated a criminal proceeding on complaint against O.P herein who is a Public Officer before the Court of Learned Additional Chief Judicial Magistrate, Alipore who, in turn, transferred the same to the Ld. 6th Judicial Magistrate, Alipore where O.P filed one application for discharge on the ground of non –compliance of the provision of Section 197 of CrPC. Ld. Magistrate rejected the same and opposite party assailed the order of rejection before the court of Ld. Session Judge, Alipore by filing a criminal motion being no. 259 of 2022 which was then transferred to the Ld. Additional Sessions Judge, 6th Court, Alipore. 3. The said criminal motion was disposed of by an order of discharge of the O.P from the criminal proceeding being AC case no 1505 of 2020 and as a sequel order of Ld. Magistrate was set aside. 4. Being aggrieved by the said order passed in criminal motion no. 259 of 2022 the instant petition seeking special leave to appeal has been preferred invoking the provision of Section 378 (4) but along with an application for condonation of delay of 20 days in filing special leave to appeal. 5. In paragraphs 4 and 5 of the application (CRAN 1 of 2023) cause of delay in filing leave has been explained. 6. In the petition it was pleaded that the appellant being a senior citizen, was suffering from fever, cough and cold due to infection and the doctor advised him to take rest. As a result, the appellant did not contact his advocate and hence there was a delay of 20 days for filing special leave to appeal. 7. Further by filing an affidavit in reply to the affidavit in opposition submitted by the respondents/opposite party, petitioner pleaded that he was suffering from high diabetes with secondary infection and pus and for that very reason he could not contact his advocate during his period of illness. The petitioner in support of his pleading also annexed a medical certificate dated 30.06.2023 which is marked as annexure “A?. Argument Advanced:- 8. The petitioner in support of his pleading also annexed a medical certificate dated 30.06.2023 which is marked as annexure “A?. Argument Advanced:- 8. Ld. Counsel, Mr. Subir Banerjee, appearing on behalf of the petitioner has submitted that the delay explained in both the applications with a prayer for condonation of delay as well as affidavit in reply are the same and there was no deliberate act on the part of the petitioner as he was restrained to file leave petition within the statutory period by an unavoidable circumstances. 9. Before parting with it is submitted that the Court should pry into the track of liberal approach in condoning delay to advance substantial justice. 10. In support of his contention, Mr. Banerjee relied on the following cases:- * Collector, Land Acquisition, Anantnag and another Vs. MST. Katiji and others reported in (1987) 2 Supreme Court Cases 107 * Balwant Singh Vs. Jagdish Singh and others reported in (2010) 8 Supreme Court Cases 685 * Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and another reported in (2010) 5 Supreme Court Cases 450 * Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 Supreme Court Cases 649 11. In opposition to that, Mr. Dipanjan Dutta appearing on behalf of the opposite party has confronted the explanation made in the petition for condonation of delay on the following ground:- * The statement made by the petitioner in the petition for the condonation of delay was not substantiated by any medical prescription which in accordance to law of limitation cannot be said to be a sufficient cause. Whereas the cause of delay stated by the petitioner in the affidavit in reply to the affidavit in opposition filed by the O.P are absolutely different to that of the CRAN application which clearly indicates the statement made by the petitioner as to the cause of delay is a false statement. Thereby, Mr. Dutta has tried to create a dent of inconsistency between the explanation of delay in CRAN application and that of the affidavit in reply, suggesting malafideness on the part of the petitioner. Mr. Dutta concluded his argument by submitting that there was no sufficient cause shown for delay in filing leave petition. To substantiate his argument Mr. Dutta has relied on the following cases:- * Ramlal, Motilal and Chhotelal Vs. Mr. Dutta concluded his argument by submitting that there was no sufficient cause shown for delay in filing leave petition. To substantiate his argument Mr. Dutta has relied on the following cases:- * Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd. reported in (1962) 2 SCR 762 * Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project and another reported in (2008) 17 Supreme Court Cases 448 * Government of Maharashtra (Water Resources Department) represented by Executive Engineer Vs. Borse brothers Engineers and Contractors Private Limited reported in (2021) 6 Supreme Court Cases 460 * Sheo Raj Singh (deceased) through Legal Representatives and others Vs. Union of India and another reported in (2023) 10 Supreme Court Cases 531 Judgment laws relied on behalf of the parties:- 12. In Mst. Katiji (supra) it was held that legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on “merits?. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life-purpose for the existence of the institution of courts. 13. In Balwant Singh (supra) observation of Hon’ble Apex Court is quoted below:- “ 25. We may state 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 concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.” 14. In Oriental Aroma Chemical Industries Limited (supra) it was observed as under:- “15. The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. In Oriental Aroma Chemical Industries Limited (supra) it was observed as under:- “15. The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate—Collector (L.A.) v. Katiji [ (1987) 2 SCC 107 : AIR 1987 SC 1353 ] , N. Balakrishnan v. M. Krishnamurthy [ (1998) 7 SCC 123 : JT (1998) 6 SC 242] and Vedabai v. Shantaram Baburao Patil [ (2001) 9 SCC 106 ] .” 15. Esha Bhattacharjee (supra) laid down the following principle:- “10. It was stressed that there should not be a pedantic approach but the doctrine that is to be kept in mind is that the matter has to be dealt with in a rational commonsense pragmatic manner and cause of substantial justice deserves to be preferred over the technical considerations. It was also ruled that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and that the courts are not supposed to legalise injustice on technical grounds as it is the duty of the court to remove injustice.” 16. In Ram Lal (supra) the Hon’ble Apex Court laid down two relevant considerations while construing Section 5. First consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. This legal right which has accrued to the decree holder by lapse of time should not be disturbed light heartedly. The other consideration which can be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone the delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. 17. The other consideration which can be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone the delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. 17. In Pundlik Jalam Patil (supra) Hon’ble Apex Court was of the firm opinion that a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on its part by condoning delay. 18. In Borse brothers (supra) the Hon’ble Apex Court observed that the main object to be achieved is a speedy resolution of disputes, the expression “sufficient cause?is not itself a loose panacea for the ill of pressing negligent and stale claims. 19. In Sheo Raj Singh (supra) the main ratio as enunciated by the Hon’ble Supreme Court is that exercise of discretion must necessarily depend upon sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. 20. From a conspectus consideration of the above decisions, while dealing with an application under Section 5 of the Limitation Act, I feel that the following principles will have to be borne in mind by the Courts:- * Sufficiency of cause explained in the petition for condonation of delay. * The issue has to be dealt with in a rational common sense in pragmatic manner so as to advance the cause of substantial justice. * False statement cannot be a part of “sufficient cause?enumerated in Section 5 of the Limitation. * Condonation of delay does not depend upon the range of delay rather on satisfactory and acceptable explanation. Analysis:- 21. In the case at hand, careful perusal of the petition relating to condonation of delay, in particular paragraphs 4 & 5, it appears that the main cause of delay asserted on behalf of the petitioner is fever, cough and cold due to infection along with allied diseases. Analysis:- 21. In the case at hand, careful perusal of the petition relating to condonation of delay, in particular paragraphs 4 & 5, it appears that the main cause of delay asserted on behalf of the petitioner is fever, cough and cold due to infection along with allied diseases. Whereas in the affidavit in reply of the petitioner to the affidavit in opposition filed by the O.P the cause of delay was depicted due to high diabetes with secondary infection and pus which is duly supported by a medical certificate dated 30.06.2023 annexed and marked as “A?wherein the doctor advised him to take rest from 31.05.2023 till 29.06.2023. 22. Manifestation of cough and cold with fever in case of a patient suffering from high diabetes and secondary infection is not unlikely or improbable as people with diabetes are prone to frequent illnesses like respiratory tract infections, flu, Pneumonia, Urinary tract infections, and skin infections. 23. Therefore, I am not agreeable with Mr. Dutta who tried to persuade this Court that the cause of delay depicted in the petition for condonation of delay is different from that of affidavit in reply of the petitioner to the affidavit in opposition filed by the O.P. 24. In the aforesaid view of the matter I am not inclined to refuse the prayer for condonation of delay of 20 days in filing special leave to appeal within the meaning of Section 378(4) of CrPC. 25. Delay is condoned. 26. CRAN 1 of 2023 stands allowed. 27. All parties to this criminal appeal shall act on the server copy of this order downloaded from the official website of this Court. 28. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. In Re: CRMSPL 33 of 2023 29. Let the matter appear in the list on 27.02.2024.