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Ghimiray Bhutia Vs. Wangey Lepcha and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1983CriLJ625
AppellantGhimiray Bhutia
RespondentWangey Lepcha and anr.
Cases ReferredState of Karnataka v. L. Muniswamy
Excerpt:
.....court under article 226 and article 227 of the constitution but has been pressed and argued as a criminal revisional application as well. 7. relying on the observations of the supreme court in a number of cases under article 226 and article 227 of the constitution and also on some decisions of this court in similar such cases, mr, moulik has urged that the accused-petitioner, notwithstanding his failure to enter the revisional jurisdiction of this court, should be allowed to invoke the jurisdiction under article 226 and/or article 227 as. ' but it is by now well-settled that even though delay, by itself may not be fatal requiring peremptory rejection of an application if there is laches, acquiescence or the like or involvement of injury t0 the rights of the third parties accrued as a..........court under article 226 and article 227 of the constitution but has been pressed and argued as a criminal revisional application as well.2. the accused-applicant has filed this application challenging the order passed by the court of session in exercise of its revisional powers under section 436 of the cri. p. c. 1898 and there can be no doubt that under that code, which is still the law in force in sikkim relating t0 criminal procedure, a revisional application against such an order to the high court is permissible. under the new code of criminal procedure of 1973, which has not vet been extended to this state of sikkim, any further revision to the high court against any order passed by the court of session in revision is barred under section 397 (3), which has made such an order by.....
Judgment:
ORDER

A.M. Bhattacharjee, J.

1. This application seeks to invoke the jurisdiction of this Court under Article 226 and Article 227 of the Constitution but has been pressed and argued as a criminal revisional application as well.

2. The accused-applicant has filed this application challenging the order passed by the Court of Session in exercise of its revisional powers under Section 436 of the Cri. P. C. 1898 and there can be no doubt that under that Code, which is still the law in force in Sikkim relating t0 Criminal Procedure, a revisional application against such an order to the High Court is permissible. Under the new Code of Criminal Procedure of 1973, which has not vet been extended to this State of Sikkim, any further revision to the High Court against any order passed by the Court of Session in revision is barred under Section 397 (3), which has made such an order by the Court of Session final and no longer assailable by any further revisional application to the High Court. And in such a case, a party dissatisfied with any such revisional order of the Court of Session can move the High Court only by invoking its jurisdiction under Article 226 or Article 227. as no statutory provision can take away or affect the right of a party to invoke the constitutional jurisdictions of this Court. When the Code of Criminal Procedure, 1898 was the law in force in the whole of India, the powers and the constitutional jurisdictions of the High Court under these Articles were not generally invoked because the revisional power under Section 439 of the Code was sufficiently wide and comprehensive for all practical purposes. And since that Code is still the law in force in Sikkim, vesting this High Court with wide and comprehensive powers to entertain revisional applications against revisional orders passed by the Court Of Session, then ordinarily there can be no reason as to why the constitutional jurisdiction of the High Court under Article 226 or Article 227 shall be allowed t0 be invoked without exhausting the ordinary remedy available by way of revision to this very Court under the ordinary procedural law, even though the existence of an alternative remedy may not, per se. be a bar to the exercise of the constitutional jurisdictions.

3. But Mr. A. Moulik. the learned Advocate appearing for the accused-petitioner, has franklv submitted that the reason for the petitioner not pursuing the usual and ordinary remedy by way of revision and for resorting to the constitutional remedy under Article 226 is that the remedy by way of revision was barred by time on the date when this application was filed in this Court, the same having been filed on 11-3-82 while the impugned order of the Court of Session was passed on 1-7-81. In Sikkim. the Limitation Act of 1963, which provides in Article 131 for a period of limitation for civil and criminal revisions, has not yet been extended and it has been observed by this Court in Kinzang Dahdul v. Ransul Kharga 1978 Cri. L.J. 1569 at 1572-73 as hereunder:

By a Notification No, 3112-80/AC, dt 6th May, 1950 the period of limitation for filing Appeals, Reviews and Second Reviews has been fixed as two months from the date of delivery of the judgment. In Sikkim there is n0 period of limitation fixed for filing Criminal Re-visional Application as was the position in the other States in India under the Limitation Act of 1908 which has now been repealed and replaced by the Limitation Act of 1963. It may be noted that neither the Act of 1903 nor the Act of 1963 is extended to or adopted in Sikkim. By the Limitation Act of 1963, under Article 131 thereof a period of ninety days has now been fixed for application to any Court for the exercise of its powers of revision under the Codes of Civil and Criminal Procedure; but, as already noted, no such period was fixed under the Limitation Act. 1908. But even then it became the usual practice of several High Courts not to entertain Criminal Revisional Application made after the period fixed for filing appeals including the time taken for obtaining the copy of judgment and also the time, if any, occupied in prosecuting with due diligence any application to the Court of Session for a reference to the High Court and obtaining such decision.

So far as this High Court is concerned there is as yet, no rule of practice that Criminal Revisions, which are filed after the expiry of the period allowed for appeals, are to be rejected simply on the ground of delay or laches. The admission or non-admission of applications for revision is entirely discretionary and we do not think that it is necessary for us t0 prescribe any hard and fast rule for the purpose. We may. however, observe that where the law prescribes a period of limitation for any action, a party may come to the Court at the last moment before the expiry of the period allowed under the law and need not be diligent or show his diligence during the period so allowed Or prescribed But where the law allows an action but does not prescribe any period for initiating such action, a party must initiate such action, with all due diligence and reasonable promptitude. It is, therefore, trite to say that a revisional application is to be filed within a reasonable period and ordinarily the period allowed for filing appeals may be regarded as the standard for reasonable time within which applications for revision should ordinarily be filed. In our opinion, when an application for revision has been made after the expiry of the period allowed for an appeal the court should ask the applicant to give reasons for and to explain the delay and not to entertain the revisional applications if the reasons and explanation are not found to be satisfactory or sufficient.

4. This decision in Kinzang Dahdul 1978 Cri LJ 1569 (Sikkim) (supra) has been followed by this Court in O. P. Singh v State 1978 Cri LJ 1650. in Jasman Rai v. Sonamaya Pai 1980 cri LJ 500 and in other cases,

5. The accused-petitioner in this case has given no reasons for and has not explained the delay in any manner and, therefore, according to the ratio of these decisions, this application cannot be entertained as a revisional application.

6. It has been sought to be urged that once this application has been admitted and has now been fixed for hearing it cannot and, at least, it should not, be thrown out on the ground of limitation but should be heard on merits. A similar contention put forward in Jasman Rai's case 1980 Cri LJ 500 at 501-503 (supra) was however repelled by this Court and, dissenting from a chain of decisions of the Patna High Court, it was held that even if a time barred criminal revisional application is admitted, whether inadvertently or after condoning the delay and such admission or condonation is made in the absence of and without notice to the respondent, the principles of natural justice would obviously require that the respondent, on receipt Of the notice of revision, must be allowed t0 urge that the revision should not have been admitted and the delay should not have been condoned. It was pointed out that such a view would not only be in accordance with the dictum of the Privy Council in Krishnasami v. Ramasami AIR 1917 PC 179 at p. 180 but would also make the procedural law in consonance with ,the principle of natural justice of audi alteram partem, according to which, as directed by the Supreme Court in Sangram Singh v. Election Tribunal : [1955]2SCR1 , we must, wherever possible; construe our procedural laws Mr. N. K. P. Saraf, the learned Advocate appearing for the complainant-respondent and Mr. N. B. Kharga, the learned Public Prosecutor having urged to that effect and the accused-petitioner having furnished no explanation for the long delay, this application as a, criminal revision, must be rejected.

7. Relying on the observations of the Supreme Court in a number of cases under Article 226 and Article 227 of the Constitution and also on some decisions of this Court in similar such cases, Mr, Moulik has urged that the accused-petitioner, notwithstanding his failure to enter the revisional jurisdiction of this Court, should be allowed to invoke the jurisdiction under Article 226 and/or Article 227 as. according to the observations and the decisions as aforesaid, there is no prescribed period of limitation for the invocation of such jurisdiction and delay, even though long, is, by itself, not fatal. It is true that as pointed out by Hidayajullah. C. J., in Tilokchand Motichand v. H. B. Munshi : [1969]2SCR824 . 'there is no lower limit and there is no upper limit' relating to the period within which the jurisdiction under these Articles is to be invoked and 'the question is one of discretion for this Court from case to case' and, as pointed out by Bhagwati J. in R.S. Deodhar v. State of Maharashtra : (1974)ILLJ221SC . 'the rule which says that the Court may not inquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that wherever there is delay, the Court must refuse to entertain the petition' and, therefore, 'each case must depend on its facts.' But it is by now well-settled that even though delay, by itself may not be fatal requiring peremptory rejection of an application if there is laches, acquiescence or the like or involvement of injury t0 the rights of the third parties accrued as a result of the delay, an application under Article 226 or Article 227 .shall not be entertained. I think that there should be no doubt that after an application has been admitted and heard on merits and is found to have good grounds which would otherwise merit intervention under Article 226 or Article 227. an application should not be rejected merely on the ground of delay, however long, unless the petitioner is guilty of laches, acquiescence or the like or unless there is involvement of injury to the rights of third parties accruing as a result of the delay. Mr Kharga has, therefore, invited me to consider as to whether there is otherwise any merit in this application and to dismiss it as without merits without going into the question as to whether the delay made by the petitioner or the non-exhaustion of the remedy by way of revision would disentitle the petitioner from any relief. It is true that if the merits of the case do not merit any interference in any view of the matter, the question of delay or existence of an alternative remedy need not be pursued at all.

8. The facts necessary for the disposal of this case, shorn of unnecessary details, are that the respondent filed a complaint against the accused-petitioner alleging that the latter trespassed into the cardamom field of the former and plucked away cardamoms. The learned Magistrate on receipt of the complaint and after examining the complainant and his witnesses issued process against the accused-petitioner under Sections 447/379 of the penal Code. After the accused appeared and the case was fixed for evidence, the learned Magistrate examined three witnesses and also considered some documents produced on behalf of the accused and held the case 'to be of a civil nature' and finding that ''there are no materials for framing of charge,' discharged the accused by his order dated 10-9-1980. The complainant assailed the order in revision before the learned Sessions Judge who held that the evidence adduced by the complainant contains 'sufficient materials to make out a prima facie case for the offences under Sections 447/379 against the accused,' set aside the order of discharge passed by the learned Magistrate and directed further inquiry and trial according to law in exercise of his powers under the provisions of Section 436. Code of Criminal Procedure, 1898. The accused-petitioner now seeks to assail the aforesaid order in this Court.

9. Process having been issued also under Section 379 of the Penal Code, the case is a Warrant Case and the same having been instituted otherwise than on a police report, the Procedure laid down in Section 252 and the succeeding Sections of Chapter XXI of the Code of Criminal Procedure, 1898 was to be followed and, therefore, the order of discharge by the learned Magistrate was obviously under the provisions of Section 253 of the Code. By that Section of 253 a Magistrate can and, in fact, shall discharge the accused if, upon taking the evidence produced by the prosecution and making such examination (if any) of the accused as the Magistrate thinks necessary, 'he finds that no case against the accused has been made out which, if unrebutted. would warrant his conviction,' In other words, if no conviction is reasonably possible on the evidence remaining as it is, considered in the light of the examination, if any, of the accused by the Magistrate, the accused must be discharged. But such a conclusion can be arrived at only on the evidence then on record and at that stage before framing of charge, such evidence would mean the evidence adduced by the prosecution, because, though we have held in the State v. pemba Sherpa 1981 Cri LJ 856 (Sikkim) that the accused has a right to cross-examine prosecution witnesses before the framing of charge also, the accused does not have any right and cannot get any opportunity to adduce evidence on his behalf at that stage.

10. But the learned Magistrate, however, appears t0 have relied mainly on three documents, being 'a copy of the Survey Map, Khatiun and a Partition Deed', without those being duly proved and without making them part of the evidence on record and thus without giving the complainant any opportunity to meet them and to make his comments thereon. And from those documents alone the learned Magistrate concluded that the claim of the accused-petitioner to the land and the cardamoms grown thereon was genuine and discharged the accused. This is a course which not only infringes the provisions of Section 253 and Chapter XXI of the Code of Criminal Procedure, but also violates the principles of natural justice. And the order of discharge passed by the learned Magistrate was, therefore, rightly quashed by the learned Sessions Judge,

11. The learned Sessions Judge has referred to and discussed the evidence on record and has held the evidence to be sufficient to make out a case for framing of charge and I have found no reason t0 think, nor Mr. Moulik has been able to satisfy me, that the learned Sessions Judge has misread, misunderstood or misappreciated the evidence, it would, as pointed out by the Supreme Court in Mahant Abhey Dass v. Gurdial Singh : 1971CriLJ691 be entirely a different matter if the allegations made in evidence are ultimately proved to be untrue or unreliable at the trial. But the learned Sessions Judge cannot be said to have committed any error by holding that the evidence as it now stands, far from justifying an order of discharge, sufficiently warrants a framing of charge.

12. It has been contended that the learned Sessions Judge has examined and scrutinised the evidence rather closely to find out a case for framing of charge and that such a close scrutiny or examination is not to be made at that plage. I do not think that the learned Sessions Judge has made any unnecessary scrutiny or scanning of the evidence. But that apart, it is difficult to accept the contention that there should be no scrutiny or scanning of the evidence before the framing of the charge and that evidence is to be only read superficially while considering the question of framing of charge. As pointed out by this Court in Puspa Kumar v. State 1978 Cri LJ 1379 at 1384, relying on the decision of the Supreme Court in State of Karnataka v. L. Muniswamy : 1977CriLJ1125 . the consideration of a charge is a very serious matter and while an unjustified charge would unjustifiably affect the fundamental right to personal liberty of the accused, an improper discharge would illegally deprive the prosecution or the State of its right to justice and, therefore, a Court, far from going wrong, really does its paramount duty in considering as thoroughly and as seriously as it can be the question as to whether a charge or discharge would promote the cause of justice. I accordingly find nothing to justify any interference with the order passed by the learned Sessions Judge. In the circumstances the application is rejected.


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