Skip to content


A. Subash Chandra Bose Vs. the Court of Judicial First Class Magistrate, Anantapur and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberS.C. Civil Misc. Petn. No. 476 of 1973, S.C.L.P.S.R. No. 5182 , W.A.M.P. No. 52 of 1973, S.C.C.M.P.
Judge
Reported inAIR1974AP173
ActsLimitation Act, 1963 - Sections 5; Constitution of India - Articles 132, 133, 226; Code of Civil Procedure (CPC), 1908 - Sections 109 and 110; Code of Criminal Procedure (CrPC) , 1898 - Sections 197
AppellantA. Subash Chandra Bose
RespondentThe Court of Judicial First Class Magistrate, Anantapur and ors.
Appellant AdvocateP. Lingaiah Choudary and ;A.V. Koteswara Rao, Advs.
Respondent AdvocateV.R. Reddy, 3rd Govt. Pleader and C. Obulpathy Choudary, 1st Addl. Public Prosecutor
Excerpt:
.....for condonation of delay - sufficient cause for condoning delay in filing application not made - held, application for condonation of delay rightly dismissed. - - 19/71. the application for review as well as this crl. we fail to see how the government can be said to be a party aggrieved by the dismissal of the writ petition or the writ appeal. it is argued by the government pleader that inasmuch as the effect of the judgment in the writ petition as well as in the writ appeal is to hold that he sanction of the government is not required, the right of the government to grant or withhold the sanction for the prosecution is the subject-matter of adjudication and hence the government is an aggrieved party......petition was filed on 18-2-1972 and was dismissed on 1-12-1972. as the order of dismissal of the writ appeal was passed on 23-11-1971 , a period of 45 days elapsed before the review petition was filed. after the review petition was dismissed also, there was an interval of 59 days before this application was filed. therefore, even excluding the period during which the review petition was pending, the application is filed beyond time.5. it was then argued that at any rate as the petitioner filed the review petition bona fide there was sufficient cause for condoning the delay in filing this application after the dismissal of the review petition. even assuming that the petitioner was advised that the petitioner was advised that the application for review was a proper remedy, no reasons.....
Judgment:

Alladi Kuppuswami, J.

1. The petitioner in S.C.C.M.P. No. 476 of 1973 filed W.P. No. 4241/71 praying interalia that this Court may quash the proceedings in P.R.C. 19/71 and the complaint dated 15-10-1971 and also to issue a writ of prohibition restraining the Magistrate from proceeding further in the matter. The main contention of the petitioner was that the sanction of the Government under Section 197, Cr. P.C. ought to have been obtained and the Magistrate could not take cognizance of the complaint in the absence of such sanction. The Writ Petition was dismissed and the petitioner preferred W.A. No. 440/71. A Bench of this Court dismissed the appeal observing that it was open to the appellant to raise the question relating to sanction before the Magistrate when the petitioner appeared before the Magistrate and it is for the Magistrate to decide when adequate material is placed before him. This judgment was delivered on 23-11-1971. The petitioner filed Crl. M.P. No. 480/71 before the Magistrate stating that the petition was filed in pursuance of the directions of the High Court. It was contended that the order taking cognizance was non est. The Magistrate dismissed it by his order dated 13-1-1972 holding that it has not been shown that no offence is made out on the allegations in the complaint and the sworn-statement. The petitioner preferred Crl. R. C. 58/72 against the said order. He also filed a W.A.M.P. No. 190/72 under Order 47, Rule 1 , C.P.C. read with Section 151, C.P.C. to review the order dated 23-11-1971 dismissing W.A. No. 440/71 Crl. R.C. 58/72 was dismissed as withdrawn on 25-7-72. The petitioner filed Crl. M.P. No. 1627.72 under Section 561A, Crl. P. C. to quash the proceedings in Crl. M.P. No. 480/71 in P.R.C. 19/71. The application for review as well as this Crl. M.P. 1627/72 were heard together by one of us (Alladi Kuppuswami, J.) and they were dismissed by a common judgment dated 1-12-1972. It may be stated that the review petition as against the order of dismissal by a Division Bench was heard by a single Judge , as the other Judge (K. V. L. Narasimham, the then Chief Justice) had retired in the meanwhile.

2. The appellant has filed a petition for leave to appeal to the Supreme Court against the order of dismissal in W.A. No. 440/71 and S.C.C.M.P. No. 476/73 he prays that the delay in filing the application for leave to appeal to the Supreme Court may be condoned.

3. The reason for the delay is that the delay of 308 days is due to the fact that a review petition was against the order sought to be appealed against and the review petition was dismissed only on 1-12-1972.

4. It is first argued on the strength of a decision of the Privy Council in Indar Singh v. Kanshi Ram, AIR 1917 PC 156 that the time during which the review petition was pending in this Court ought to be excluded in computing the period of limitation prescribed for filing application for leave to the Supreme Court. The decision has no application to the facts of the present case and it does not support the proposition that the petitioner is entitled to claim exclusion of the period during which review petition was pending. Even if that period is excluded , it is seen that the review petition was filed on 18-2-1972 and was dismissed on 1-12-1972. As the order of dismissal of the Writ Appeal was passed on 23-11-1971 , a period of 45 days elapsed before the review petition was filed. After the review petition was dismissed also, there was an interval of 59 days before this application was filed. Therefore, even excluding the period during which the review petition was pending, the application is filed beyond time.

5. It was then argued that at any rate as the petitioner filed the review petition bona fide there was sufficient cause for condoning the delay in filing this application after the dismissal of the review petition. Even assuming that the petitioner was advised that the petitioner was advised that the application for review was a proper remedy, no reasons were given for the delay of nearly 59 days in filing the petition after the dismissal of the review petition. The petitioner has been trying to pursue a number of remedies simultaneously. As stated earlier he filed Crl. R. C. 58/72. Again, he filed Crl. M. P. No. 1416/72 to quash the complaint and this was dismissed on 29-8-1972. Meanwhile, he filed Crl. M. P. No. 1627/72 to quash the proceedings. Having regard to all the circumstances we cannot say that the filing of the review petition would constitute a sufficient cause for condoning the delay in filing this application. In the result, the petition is dismissed, but in the circumstances without costs.

6. As the petition to condone the delay has been dismissed S. C. L. P. S. R. No. 5186/73 for leave to appeal to the Supreme Court is also dismissing.

7. The State of Andhra Pradesh who was not a party to the Writ Appeal has filed C. M. P. No. 52 of 1973 to implead themselves either as second appellant in W. A. No. 52 of 1973 to implead themselves either as second appellant in W. A. No. 440/71 or as the fourth respondent therein. They also sought leave to appeal to the Supreme Court against the order dismissing? W. A. No. 440/71 in S. C. L. P. S. R. No. 85980 of 1972 and filed petitions, S. C. C. M. P. 3378/72 and S. C. C. M. P. 12098/72 to condone the delay in filing that application.

8. It is seen that the writ petition, out of which the writ appeal arose was filed by a Police Officer seeking an order quashing the complaint and proceedings on the ground that the sanction of the Government had not been obtained. We fail to see how the Government can be said to be a party aggrieved by the dismissal of the Writ Petition or the Writ appeal. It is argued by the Government Pleader that inasmuch as the effect of the judgment in the writ petition as well as in the writ appeal is to hold that he sanction of the Government is not required, the right of the Government to grant or withhold the sanction for the prosecution is the subject-matter of adjudication and hence the Government is an aggrieved party. At any rate the Government is interested in the result of the Writ Appeal and hence they are proper parties to the Writ Appeal. We do not agree. The mere fact that the law requires sanction of the Government to be obtained before a public servant is prosecuted in certain cases, does not mean that the Government should be made a party to such proceedings. The Government is acting in the capacity of a Tribunal which is entrusted with the duty under law to grant sanction in certain circumstances. If that sanction is certain circumstances. If that sanction is necessary and is not obtained the proceedings are illegal. If, on the other hand, the sanction is not necessary, the proceedings are properly initiated; they have to go on. We do not agree with the learned Government Pleader that the Government must be enabled to come on record as a party in those proceedings, simply because one of the contentions or even the main contention urged is that their sanction is required. Further, the Writ Petition was filed on 26-10-1971 and was dismissed on 16-11-1971. No steps were taken by the State of Andhra Pradesh to come on record as a respondent. If it was a aggrieved by the cognizance of the case by the Magistrate in the absence of the sanction by them, nothing prevented them from filing a writ to quash the said proceedings, but they did not choose to do so. Even after the writ appeal was filed they did not take any steps to make themselves parties to the writ appeal. After a lapse of more than one year after the disposal of writ appeal and after the review petition was dismissed the State of Andhra Pradesh has now filed this application to come on record as appellant or respondent in the writ appeal that has already been disposed of. We have no hesitation in holding that no case is made out by the State for impleading themselves as a party to this writ appeal at this stage, especially after it was disposed of. The petition C. M. P. No. 52/73 is therefore dismissed.

9. It was then contended that even if it is not a party to the writ appeal, the State of Andhra Pradesh is interested in the subject-matter of the writ appeal and hence it is entitled to prefer an appeal to the Supreme Court against the order of dismissal of the writ appeal. For the reasons we have already given in connection with the application for impleading themselves as a party to the writ appeal, we are of the view that the state of andhra Pradesh is not a person aggrieved by the order so as to enable them to appeal to the Supreme Court. Hence, the application for leave to appeal to the Supreme Court, S. C. L. P. S. R. 85980/72 dismissed as not maintainable.

10. As we have held that the application for leave to appeal to the Supreme Court is not maintainable at the instance of the State, the question of condoning the delay in filing the application does not arise and hence S. C. C. M. P. No. 12098/72 and S. C. C. M. P. S. R. 3378/72 are dismissed. Apart from that we have already noticed that the Writ Appeal was disposed of on 23-11-1971 and no reason at all is given for filing the application after a delay of more than a year. The mere fact that the officer concerned filed a review petition is not a ground for the Government not taking any steps, if they consider themselves aggrieved by the order. Hence, in our view there is also no sufficient cause for condoning the delay in filing the petition.

11. Application dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //