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Vali Mahomed Adam and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR138
AppellantVali Mahomed Adam and ors.
RespondentThe State
Cases ReferredUnion of India v. Ram Kanwar
Excerpt:
- - applications for the exercise of the revisional jurisdiction in criminal matters to a sessions judge or a district magistrate shall be made within 30 days from the date of the decision complained of exclusive of the time required for obtaining the necessary certified copies: strong reliance was placed on this decision by mr......and with the previous approval of the governor the high court has framed the following rule:applications for the exercise of the revisional jurisdiction in criminal matters to a sessions judge or a district magistrate shall be made within 30 days from the date of the decision complained of exclusive of the time required for obtaining the necessary certified copies:provided that such an application may be admitted after the said period if the applicant satisfies the court that he had sufficient cause for not making the application within such period.2. it is therefore clear that if the rule of limitation prescribed by this paragraph has the force of law the revision application before the learned sessions judge should have been filed within thirty days of the order of.....
Judgment:

P.N. Bhagwati, J.

1. The accused in this case were charge-sheeted in the Court of the Judicial Magistrate First Class Broach for offence under Sections 447, 426 and 504 of the Indian Penal Code. The learned Magistrate convicted the accused of the offence under Sections 447 and 426 of the Indian Penal Code and sentenced each of them to pay a fine of Rs. 25/or in default to suffer rigorous imprisonment for fifteen days for the offence under Section 447 of the Indian Penal Code. No separate sentence was passed for the offence under Section 426 of the Indian Penal Code. So far as the offence under Section 504 was concerned the accused were acquitted of that offence. The accused being aggrieved by the order of conviction and sentence passed against them filed a Revision Application against the same in the Court of the Sessions Judge Broach. The Revision Application was filed more than thirty days after the date of the order of conviction and sentence even after excluding the time required for obtaining certified copies. The learned Sessions Judge therefore following paragraph 6 of Chapter XIII of the Criminal Manual issued by the High Court of Bombay rejected the Revision Application as time-barred. The accused thereupon preferred the present Revision Application in this Court.

The only question which arises on this Revision Application is whether the learned Sessions Judge was right in rejecting the Revision Application before him as time-barred on the ground that it was filed more than thirty days after the date of the order of conviction and sentence after excluding the time required for obtaining the necessary certified copies. Now paragraph 6 of Chapter XIII of the Criminal Manual issued by the High Court of Bombay provides a period of limitation for Revision Applications before Courts other than the High Court in the following terms:

6 Limitation for Revision Applications: In exercise of the powers under Article 227 of the Constitution and with the previous approval of the Governor the High Court has framed the following rule:

Applications for the exercise of the revisional jurisdiction in criminal matters to a Sessions Judge or a District Magistrate shall be made within 30 days from the date of the decision complained of exclusive of the time required for obtaining the necessary certified copies:

Provided that such an application may be admitted after the said period if the applicant satisfies the Court that he had sufficient cause for not making the application within such period.

2. It is therefore clear that if the rule of limitation prescribed by this paragraph has the force of law the Revision Application before the learned Sessions Judge should have been filed within thirty days of the order of conviction and sentence excluding the time required for obtaining the necessary certified copies and since the Revision Application was admittedly made beyond such period the learned Sessions Judge was right in rejecting the Revision Application as time-barred. It was however contended by Mr. N.V. Karlekar learned advocate appearing on behalf of the accused that this paragraph contained merely a working rule issued for the guidance of Criminal Courts subordinate to the High Court and did not lay down any law on the subject of limitation and that even if the Revision Application was filed beyond the period of thirty days from the date of the order of conviction and sentence exclusive of the time required for obtaining the necessary certified copies the Revision Application was not liable to be rejected as time-barred Mr. N.V. Karlekar relied on a decision of a Division Bench of the High Court of Bombay in State v. Ramniklal Joshi (LIII Bom. Law Reporter 545) in support of this contention. The facts of that case were that a Revision Application was made by the Government in the Court of the Sessions Judge Surat on 29th May 1950 against an order of discharge passed by the First Class Magistrate Surat on 9th January 1950. The Revision Application was admittedly filed beyond the period prescribed by Rule 119 of the Criminal Manual issued by the High Court of Bombay which was then in force. Rule 119 of the Criminal Manual then in force corresponded to paragraph 6 of the present Criminal Manual. The learned Sessions Judge Surat relying on Rule 119 rejected the Revision Application before him as time-barred. The matter was taken in revision before the High Court and a Division Bench of the High Court consisting of Rajadhyaksha and Vyas JJ. held that Rule 119 was merely a working rule issued for the guidance of Criminal Courts subordinate to the High Court and did not lay down any law on the subject of limitation and that the Revision Application could not therefore be rejected by the learned Sessions Judge as time-barred. Strong reliance was placed on this decision by Mr. N.V. Karlekar learned advocate on behalf of the accused and the learned advocate contended that paragraph 6 of the present Criminal Manual stood on the same footing as Rule 119 of the Criminal Manual in force at the time when the Revision Application in that case was rejected by the learned Sessions Judge and that if Rule 119 contained merely a working rule issued for the guidance of Criminal Courts subordinate to the High Court and did not lay down any period of limitation equally must paragraph 6 of the present Criminal Manual be read as containing a working rule issued for the guidance of Criminal Courts subordinate to the High Court and as not laying down any law on the subject of limitation. The learned government Pleader on the other hand contended that the rule in paragraph 6 of the present Criminal Manual having been made by the High Court in exercise of the powers under Article 227 of the Constitution of India had the force of law and that any Revision Application filed beyond the period prescribed by that rule was therefore liable to be rejected as time-barred. The answer given to this contention by Mr. N.V. Karlekar was that Rule 119 of the Criminal Manual which was considered in the decision of the Bombay High Court was also made under Section 224 of the Government of India Act 1935 which corresponded to Article 227 of the Constitution of India and that if the Bombay High Court in this decision held that which 119 had not the force of law it must on the authority of this decision be held that the rule in paragraph 6 also did not have the force of law. I must mention in this connection that the Criminal Manual in which Rule 119 occurred did not state that that rule was made by the High Court in exercise of the powers under Section 224 of the Government of India Act 1935 unlike paragraph 6 of the present Criminal Manual which in terms states that the rule in that paragraph is made by the High Court in exercise of the powers under Article 227 of the Constitution of India. But that could not make any difference to the argument because it was clear that a rule prescribing a period of limitation could be laid down by the High Court only in exercise of its powers under Section 224 of the Government of India Act 1935 and if that was so the ratio of the decision of the Bombay High Court would have certainly compelled me to take the view that just as Rule 119 was merely a working rule issued for the guidance of Criminal Courts subordinate to the High Court and did not lay down any law on the subject of limitation the rule contained in paragraph 6 was also merely a working rule and did not lay down any law on the subject of limitation. My attention was however drawn to a decision of the Supreme Court reported in Union of India v. Ram Kanwar : [1962]3SCR313 where the Supreme Court while dealing with Rule 4 of Chapter I of the Punjab High Court Rules and Orders Volume V framed by the High Court of Punjab in exercise of its powers under Clause 27 of the Letters Patent held that the rule of limitation therein contained was a law of limitation made in respect of special cases covered by it and was a special law within the meaning of Section 29(2) of the Limitation Act. Now Clause 27 of the Letters Patent of the High Court of Punjab empowers the High Court from time to time to make rules and orders for regulating the practice of the Court and it was in exercise of this power that the High Court of Punjab framed Rule 4 prescribing a period of thirty days as the period of limitation for Letters Patent appeals against order made by a single Judge of the High Court in exercise of its original jurisdiction.

3. The question arose as to whether such Letters Patent appeals were governed for the purposes of limitation by Rule 4 framed by the High Court or by Article 151 of the Limitation Act. If Rule 4 could be said to be a special law within the meaning of Section 29(2) of the Limitation Act then obviously by virtue of the provision enacted in that section such Letters Patent appeals would be governed by the period of limitation prescribed in Rule 4 and not by the period of limitation prescribed in Article 151 of the Limitation Act. The Supreme Court held that under Clause 27 of the Letters Patent the High Court had the power to make a rule prescribing a period of limitation in respect of appeals from orders made by a single Judge of that High Court in exercise of its original jurisdiction to a Division Bench of that High Court and that Rule 4 framed by the High Court in exercise of the power under Clause 27 of the Letters Patent was therefore a special law within the meaning of Section 29(2) of the Limitation Act. It was thus held by the Supreme Court that the rule of limitation contained in Rule 4 made by the High Court in exercise of the power under Clause 27 of the Letters Patent had the force of law and that it governed for the purposes of limitation Letters Patent appeals from orders of a single Judge made in exercise of the original jurisdiction of the High Court. Of course in the present case I am concerned not with Clause 27 of the Letters Patent of the High Court of Punjab but with Article 227 of the Constitution of India but the principle enunciated by the Supreme Court in this decision must apply with equal if not greater force in the case of rules made by the High Court in exercise of the powers under Article '227 of the Constitution. Article 227 of the Constitution by Clause 2 provides that the High Court may inter alia make and issue general rules and prescribe forms for regulating the practice and proceedings of the subordinate Court. If a rule of limitation made by the High Court of Punjab under Clause 27 of the Letters Patent which authorized the High Court to make rules and orders for regulating its own practice was held by the Supreme Court to be special law within the meaning of Section 29(2) of the Limitation Act a rule of limitation such as the one in paragraph 6 of the present Criminal Manual made by the High Court in exercise of the powers under Article 227 of the Constitution which empowers the High Court to make and issue general rules for regulating the practice and proceedings of the subordinate Courts must equally be held to have the force of law. The reasoning of the Supreme Court in this decision must apply in the case of the present rule of limitation contained in paragraph 6 of the Criminal Manual and following this decision I must hold notwithstanding the decision of the High Court of Bombay mentioned above that paragraph 6 of the present Criminal Manual contains a rule of limitation which has the force of law and which can be considered special law within the meaning of Section 29(2) of the Limitation Act. The learned Sessions Judge was therefore in my opinion right in rejecting the Revision Application before him as time-barred on the ground that it was filed beyond the period prescribed by the rule of limitation contained in paragraph 6 of the present Criminal Manual.

4. Before I part with this case I must mention that paragraph 6 of the present Criminal Manual contains a proviso that a Revision Application may be admitted even after the period of thirty days prescribed by the main part of the paragraph if the applicant satisfies the Court that he had sufficient cause for not making the Revision Application within such period. It would therefore be open to the applicant in an appropriate case to make an application to the Court for condoning the delay in filing the Revision Application and if the applicant satisfies the Court that he had sufficient cause for not making the Revision Application within the prescribed period the Court would certainly be bound to exercise the discretion in favour of the applicant and admit the Revision Application notwithstanding the expiration of the prescribed period. Mr. N.V. Karlekar in this view of the matter applied to me that the delay in filing the Revision Application should be condoned. Mr. N.V. Karlekar pointed out that the accused were misled by the decision, of the Bombay High Court mentioned above and that they bona fide believed on the strength of that decision that the Rule of limitation prescribed by paragraph 6 of the Criminal Manual was merely a working rule for the guidance of Criminal Courts subordinate to the High Court and that there was no legally enforceable period of limitation for filing the Revision Application and that the Revision Application could not therefore be treated as time-barred. I am inclined to agree with this submission of Mr. N.V. Karlekar. The law as laid down by the decision of the Bombay High Court was certainly that the rule of limitation prescribed in the Criminal Manual for a Revision Application to the Sessions Judge was a mere working rule and did not contain any law on the subject of limitation and if the accused relying on this decision did not prefer the Revision Application in time they should not in fairness be penalised. I am therefore of the opinion that the delay in filing the Revision Application should de-condoned and that the Revision Application should be heard and disposed of by the learned Sessions Judge on merits.

In the result I allow the Revision Application set aside the order of dismissal passed by the learned Sessions Judge and send the matter back to the learned Sessions Judge with a direction to hear and dispose of the Revision Application on merits.


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