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Wahengbam Iboton Singh Vs. Thokchom Amutombi Singh and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantWahengbam Iboton Singh
RespondentThokchom Amutombi Singh and anr.
Excerpt:
.....this court should condone the delay, i hereby condone the same following the decision of the patna high' court in the case of sakhichand sahu (supra). further, i also feel satisfied on going through the material on the record that palpable injustice having been done by the trial court in the matter of discharge of amutombi singh, this court should interfere suo motu in exercise of its right given by sections 435 and 439, criminal p. that statement also clearly brings out that according to t. gopal singh, i have therefore no misgivings that the order of the trial court, which though endorsed by the sessions judge, is manifestly unjust, nay, perverse......nabin singh to request him for repayment of the debt, he was surprised to learn that achou singh accused had cheated him on 9-4-1968 by representing himself to be nabin singh, the owner of the paddy field. the matter came to light when the owner nabin singh told iboton singh in the village that he had never mortgaged his paddy field with any one. having felt frustrated, iboton singh filed a complaint on 30th september 1968 in the court of shri l. rabindra singh charging achou singh with offences punishable under sections 419 and 420, ipc and accused amutombi singh and babu singh with those offences read with section 109, ipc3. after recording the statement of the complainant on 30th september 1968 the court summoned all the three accused under section 420, ipc babu singh was.....
Judgment:

R.S. Bindra, J.C.

1. This criminal revision by W. Iboton Singh is directed against the order dated 13-3-1970 by which Shri L Rabindra Singh, Magistrate First Class, Imphal, discharged Th. Amutombi Singh, one of the three accused who were prosecuted on the charge of cheating by impersonation. A revision petition filed by the complainant W. Iboton Singh against that discharge order having proved abortive in the Court of the Sessions Judge, Manipur. he has come up in revision to this Court.

2. The allegations set out in the complaint were that in the month of March 1968 the accused Amutombi Singh approached the complainant for lending some money to his friend S. Babu Singh against the security of a paddy field. The complainant having agreed to do so, detailed talks followed between him, Amutombi Singh and Babu Singh when he (the complainant) was apprised that the paddy field proposed to be mortgaged' is situate in Iram Siphai and that it stands in the name of S. Nabin Singh a younger brother of Babu Singh. The amount of the loan was settled at Rs. 3,000/- and it was agreed that before executing the mortgage deed the paddy field shall be inspected by the complainant and he shall also have talks with the owner Nabin Singh. On 9th April 1968. the complainant and the accused Amutombi Singh and Babu Singh, besides some persons connected with the complainant, left for the paddy field in a jeep hired by Amutombi Singh. When the party reached the field, they saw one person (who ultimately turned out to be the accused Achou Singh) on the land and he was introduced to the complainant by the accused Amutombi Singh as Nabin Singh, the owner of the field. The complainant exchanged talks with Achou Singh respecting the mortgage transaction and when the visiting party was about to leave the paddy field, the accused Achou Singh delivered kacha patta of the paddy field to the accused Babu with the direction that it should be appended to the mortgage deed. At the instance of Achou Singh, it was stated further, the complainant fixed 10-4-1968 as the date for execution and registration of the mortgage deed, and the deed was scribed on that date by Shri Charugopal Singh, Advocate, Imphal, in his chamber in the presence of all the three accused, Amutombi Singh. Achou Singh and Babu Singh. That done, the party proceeded to the Registry at Imphal where the deed was registered against cash payment of Rs. 3,000/- by the complainant to Achou Singh. The period for repayment of the mortgage-loan was fixed at five months. On 22-9-1968 when W. Iboton Singh, the complainant, went to Iram Siphai to contact the mortgagor Nabin Singh to request him for repayment of the debt, he was surprised to learn that Achou Singh accused had cheated him on 9-4-1968 by representing himself to be Nabin Singh, the owner of the paddy field. The matter came to light when the owner Nabin Singh told Iboton Singh in the village that he had never mortgaged his paddy field with any one. Having felt frustrated, Iboton Singh filed a complaint on 30th September 1968 in the Court of Shri L. Rabindra Singh charging Achou Singh with offences punishable Under Sections 419 and 420, IPC and accused Amutombi Singh and Babu Singh with those offences read with Section 109, IPC

3. After recording the statement of the complainant on 30th September 1968 the Court summoned all the three accused Under Section 420, IPC Babu Singh was reported to have absconded and so the case proceeded only against the other two accused. After examining three witnesses including the complainant the trial Court discharged Amutombi Singh on the finding that no such case against him had been made out which, if unrebutted, would warrant his conviction. The Court however charged the accused Achou Singh Under Sections 466 and 420, IPC and the trial ended in his conviction which was also upheld in appeal.

4. The Sessions Judge, Manipur, rejected the revision petition of the complainant against the order discharging Amutombi Singh on holding that the scribe Shri Charugopal Singh of the mortgage deed as P.W. 3 and T. Gopal Singh (P.W. 2). an attesting witness thereof, had not implicated the accused Amutombi Singh.

5. Shri Nandakumar Singh, representing Amutombi Singh, raised at the very outset of the arguments in this Court a preliminary objection to the effect that the revision petition is barred by time. The discharge order by the trial Court, he urged, haying been made on 13-3-1970 it was obligatory on the complainant to file a revision petition in this Court within ninety days of that order. In support of that contention he invited the Court's attention to Article 131 of the Limitation Act, 1963, which prescribes a period of ninety days from 'The date of the decree or order or sentence sought to be revised' for an application to any Court for the exercise of its powers of revision under the Code of Criminal Procedure. 1898. He also cited three cases of the Patna High Court reported in : AIR1967Pat223 , Sahdev Mandal v. Honga Murmu : AIR1967Pat270 , Kamla Prasad v. State and : AIR1967Pat351 , Sakhichand Sahu v. Ishwar Dayal Sahu, to buttress that contention. Shri Nandakumar Singh vigorously contested the proposition that the period of limitation for the present petition would commence from 23-6-1970, on which date the learned Sessions Judge had rejected the revision of the complainant in limine. He argued that the discharge order passed by the trial Court does not merge in the order of the Sessions Judge and that since the complainant wants the reversal of the order of the trial Court, the period of limitation for the present revision petition started, as provided in column 3 of Article 131, from the date of the order of the trial Court.

6. Shri Homendrajit Singh, the learned Counsel for the complainant, submitted, on the other hand, that it being the settled practice of this Court, as well as of all the other High Courts in India, that an aggrieved party must first so in revision to the Court of Session before coming up to the High Court, and that since it is practically impossible for an aggrieved party to file a revision petition in the High Court after making a vain attempt in the Court of Session, the interpretation placed by Shri Nandakumar Singh on Article 131 would amount to denying that party its statutory right of approaching the High Court for redress. He submitted in the alternative that the delay, if any, in filing the present petition be condoned Under Section 5 of the Limitation Act inasmuch as the present is the first case in this territory where the objection of the nature canvassed by Shri Nandakumar Singh has been adopted. Shri Nandakumar Singh agreed with the latter assertion of petitioner's counsel, though he denied that a case for condonation of delay is made out.

7. The legal point raised by Shri Nandakumar Singh is l obviously of great importance as it is likely to crop up in this Court quite often. The rival views expressed by the parties' counsel have persuasive merits. Shri Nandakumar Singh was very much right in stating that there is no way of getting out of Article 131 of the Limitation Act which provides in unequivocal terms that the period of limitation for a revision petition shall be 90 days, counted from the date ' of the order or sentence sought to be revised. He was on equally firm footing in submitting that the order which the present petitioner wants to be revised is that of the trial Court, dated 13-3-1970, and not of the Sessions Judge passed on 23-6-1970. Shri Homendrajit Singh. I believe, was also not wrong in contending that if the practice of this Court that the aggrieved party must first try his hand in the Court of Session is unalterable, then, speaking normally, that party will invariably be denied the privilege of recourse to the High Court in cases where it fails to get relief from the Court of Session. Despite the irreconcilable nature of the respective stands taken by the two counsel and vexing nature of the problem thereby thrown up, the conflict, as I- see it, admits of easy solution. The practice adopted by this Court, and the other High Courts in India, it cannot be gainsaid, has no sanction of law. It has held field for the obvious reason that the highest of the three Courts having concurrent jurisdiction in the matter of criminal revisions has, practically speak-ing, the final authority and say in the matter and the practising Advocates and the litigants have regard and respect for its view. Section 435, Criminal P.C. provides that the High Court or any Sessions Judge or District Magistrate may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality of propriety of any finding, sentence ,or order recorded or passed, and as to the regularity of any proceedings of such inferior Court.

8. The High Courts, in India developed the aforementioned practice despite absence of any. legislative indication in the phraseology of Section 438, or, for that matter, in any other provision of the Criminal P.C., for the double reason that the time of the High Court is more precious as compared to that of either the Sessions Judge or -the District Magistrate and that it (High Court) may have the benefit of the opinion of a senior Judicial Officer like that of a Sessions Judge or District Magistrate in regard to the merits of the point involved in the revision petition. This practice of the High Courts could be adhered to. and that too without preju- dice to the rights of the aggrieved party, before the Indian Limitation Act, 1963, came into force, because no period of limitation was provided by the Limitation Act of 1908. However, since for the first time in India a period of limitation for revision, both on the criminal and civil side, has been prescribed by Article 131, therefore, a fresh look has to be given to the prevalent practice with a view to determine whether there is any justification in sticking to it in the changed circumstances. As stated already, Sections 435 to 439, Cr.PC do not either expressly or impliedly provide that recourse to the Court of Session or the District Magistrate must first be had before an aggrieved party can come up in revision to the High Court. And since Article 131 statutorily provides a limitation of 90 days computed from the date of the order or sentence sought to be revised, and Section 3 of the Limitation Act peremptorily enacts, inter alia, that any application made after the prescribed period shall be dismissed although limitation has not been set up as a defence, it looks manifest that the practice aforementioned has to be abrogated if only to permit the aggrieved litigant exercise the right which the legislature has given him by the relevant provisions of the Criminal P.C. and which right has, at the same time, been somewhat abridged, in the matter of period within which it can be exercised, by Article 131 of the Limitation Act. There appears to be no alternative approach, in my opinion, to the matter at anvil. Therefore. I hold that an aggrieved party has to file a revision petition in the High Court within a period of 90 days from the date of the impugned order, subject, of course, to such exclusion of time as may be permitted by any provision of law, e. g.. Section 12 of the Limitation Act.

9. The three reported judgments of the Patna High Court relied upon by Shri Nandakumar Singh lend weight to the view taken by me. In the case of Sahdev Mandal, the Patna High Court held that in face of Article 131 the procedure that the petitioner must approach the Sessions Judge in the first instance is impracticable since the order sought to be revised is not the order of the Sessions Judge refusing to make a reference to the High Court but that of the trial Court, and that the latter order can be challenged in the High Court only within ninety days from the date it was made. The High Court consequently held further that an aggrieved party is not bound to approach the Sessions Court before coming to the High Court. Identical view was taken by that Court in the second case of Kamla Prasad, while in the third case of Sakhichand Sahu the Court expressed the opinion that in view of its long standing practice that a party can come to the High Court in revision after it has moved the Sessions Judge and failed, the High Court should somewhat liberally exercise its powers Under Section 5 of the Limitation Act in the matter of condoning the delay in filing the petition before it where the aggrieved party had first moved the Sessions Judge and failed. I share this last observation of the Patna High Court but subject to the proviso that after the practice so far prevalent in the High Courts is put an end to, Section 5 of the Limitation Act will have to be applied in accordance with its true import and in the manner it has been interpreted by the Supreme Court. Once the practice is departed from, the revision petitioner can commit delay in coming to the High Court at his own peril.

10. I feel inclined to refer to another aspect of the matter. It is that the period of limitation prescribed by Article 131 comes into play if an application is made in the High Court by an aggrieved party and not when the High Court wants to act suo motu in the matter of criminal proceedings pending before or disposed of by the Courts subordinate to it. Section 439 (1), Criminal P.C. enacts that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428, or on a Court by Section 338. The revisional jurisdiction vested in the High Court is in the nature of supervisory jurisdiction with the avowed object of correcting irregularities and illegalities committed by the subordinate Courts in their day to day working. Hence, if a case of palpable injustice perpetrated by a subordinate Criminal Court is brought to the notice of the High Court by the aggrieved party, or some one else, even belatedly, the High Court can take cognizance of the matter and redress the wrong done. This is one sure way in which the High Court can interfere, much to the relief of the party who has suffered at the hands of a subordinate Criminal Court, even after the period of 90 days prescribed by Article 131 has run out. The only infirmity this method suffers from is that none has vested right, to approach the High Court to exercise its revisional powers, very much unlike the appellate powers conferred on the High Court, and so the High Court may conceivably refuse to interfere, though such contingency is not likely to. occur when some palpable injustice has| been done in a case.

11. As a result of the above discussion. I hold that since the present petitioner had come to this Court more than 90 days after the trial Court had discharged Amutombi Singh, his revision petition filed in this Court on 5-9-1970 is obviously barred by time. However, since Shri Homendrajit Singh made an oral application Under Section 5 of the Limitation Act, during the course of arguments, praying that this Court should condone the delay, I hereby condone the same following the decision of the Patna High' Court in the case of Sakhichand Sahu (supra). Further, I also feel satisfied on going through the material on the record that palpable injustice having been done by the trial Court in the matter of discharge of Amutombi Singh, this Court should interfere suo motu in exercise of its right given by Sections 435 and 439, Criminal P.C.

12. The trial Court discharged Amutombi Singh on the sole ground that P.W. 2 T. Gopal Singh, an attesting witness of the mortgage deed, and P.W. 3 Shri Charugopal Singh, the scribe thereof, had not implicated Amutombi Singh. It is correct that Shri Charugopal Singh did not attribute any role to Amutombi Singh at the time he scribed the document in his chamber. However, the trial Court gravely erred, may be inadvertently, when it observed in para 8 of its order that T. Gopal Singh did not affirm in his Court statement that accused Amutombi Singh had accompanied the party which visited the paddy field on 8-4-1968. In the beginning of that statement T. Gopal Singh testified that 'on 8-4-1968, the complainant and the accused Amutombi Singh and Babu Singh, himself, and an unknown man went in a jeep to Iram Siphai to see paddy land.' I am surprised that the learned trial Court did not care to go through the evidence recorded by itself before proceeding to prepare the order dated 13-3-1970. During his cross-examination T. Gopal Singh stated further that at Iram Siphai accused Achou Singh was called out from his house by accused Amutombi Singh and Babu Singh. That statement also clearly brings out that according to T. Gopal Singh, the accused Amutombi Singh had accompanied them to the field on the date accused Achou Singh impersonated as Nobin Singh, the real owner of the paddy field. In face of these averments of T, Gopal Singh, the learned trial Court went completely wrong in observing that the statement of the complainant W. Iboton Singh, which is on line with the allegations made in the plaint, does not gather cor-roboration from the testimony of T. Gopal Singh, I have therefore no misgivings that the order of the trial Court, which though endorsed by the Sessions Judge, is manifestly unjust, nay, perverse. Consequently, on quashing the same, I remand the case to the trial Court for further inquiry against Th. Amutombi Singh.


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