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Daitari Sahu Vs. Lokanath Baral and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 170 of 1966
Judge
Reported inAIR1969Ori6; 34(1968)CLT401; 1969CriLJ229
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 193(3), 195(3), 476, 476A and 476B
AppellantDaitari Sahu
RespondentLokanath Baral and ors.
Appellant AdvocateR. Mohanty, ;R.K. Kar and ;S.N. Kar, Advs.
Respondent AdvocateA.S. Khan, Adv.
DispositionRevision dismissed
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........in the present case as admittedly the application under section 476 cr. p.c. was rejected by the learned magistrate concerned in relation to whose court the offence was committed, i do not think the a. d. m. (judicial) could have taken any action under section 476-a. apart from this, section 476-b is another hurdle in the way of the petitioner. it provides that where the subordinate court has made a complaint or rejected an application to make a complaint under section 476 cr. p.c., the remedy is by way of appeal under section 476-b. section 195(3) indicates the superior appellate court. an appeal from the court of the learned magistrate concerned was competent to the court of session. the petitioner did not avail of this remedy, but approached the a. d. m. (judicial) who had no.....
Judgment:
ORDER

A. Misra, J.

1. This application in revision has been filed against an order of the A. D. M. (Judicial), Cuttack, rejecting the application of the petitioner to restore Misc. Case No. 70 of 1965. In short, the facts are that the petitioner filed a petition under Section 476 Cr. P.C. before the trying magistrate in a disposed of case for proceeding against the accused who had been acquitted in a case on theground that they had produced a forgeddocument in support of their defence. That application was rejected. Thereafter the petitioner filed a similar petition under Section 476-A, Cr. P.C. before the A. D. M (Judicial), Cuttack. Thesaid petition was registered as Criminal Misc. Case No. 70 of 1965, but the same was also dismissed on 1-2-66 as the petitioner was absent when it was called. The petitioner filed a petition for restoration of the Misc. case and the present revision is against the order of the A. D. M. (Judicial), rejecting the same.

2. The learned Counsel appearing for the petitioner contends that though there is no express provision in the Code providing for restoration of petitions comparable to the provisions contained in theCivil Procedure Code and though there is no provision comparable to Section 151 C. P.C., still there is judicial authority for the view that where the court finds that a final order has been passed without jurisdiction the court has inherentpower to restore the same. For the present purpose it is not necessary to go into this question or consider how far such a contention is sustainable, and if sustainable to what extent and in what circumstances such power can be exercised by the court. The application under Section 476-A was filed before the A. D. M. (Judicial), Cuttack on the ground that it was a superior court to the court of the Magistrate in relation to proceeding in whose court the alleged offence is saidto have been committed. Section 476-A contains two limitations for the exercise of the power by the superior Court. The power under Section 476-A can be exercised only where a subordinate court hasneither made a complaint under Section 476 Cr. P.C. nor rejected an application for such a complaint. In the present case as admittedly the application under Section 476 Cr. P.C. was rejected by the learned magistrate concerned in relation to whose court the offence was committed, I do not think the A. D. M. (Judicial) could have taken any action under Section 476-A. Apart from this, Section 476-B is another hurdle in the way of the petitioner. It provides that where the subordinate court has made a complaint or rejected an application to make a complaint under Section 476 Cr. P.C., the remedy is by way of appeal under Section 476-B. Section 195(3) indicates the superior appellate court. An appeal from the court of the learned Magistrate concerned was competent to the court of session. The petitioner did not avail of this remedy, but approached the A. D. M. (Judicial) who had no jurisdiction to entertain the application. In any view of the matter there is no merit in the application. The revision is accordingly dismissed.


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