Buddhinath Choubey vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. with the prayer to quash the order dated 15.02.2017 passed by the learned Sessions Judge, Godda in Criminal Revision No. 09 of 2015 as the learned  Sessions  Judge,  Godda  has  condoned  the  delay  in  filing the said application, though a  written application under Section 5 of  the  Limitation  Act  was  filed  by  the  opposite  party  nos.2  to  18 herein, yet without issuing notice to the petitioner herein, who was the opposite party in the said criminal revision; before condoning the delay.

Relying upon the judgment of the Hon’ble Supreme Court of India in the case of State of Maharashtra vs. Sharadchandra Vinayak Dongre & Ors. reported in (1995) 1 SCC 42, it is submitted by the learned Senior Advocate appearing for the petitioner that  in  paragraph  no.  5 thereof,  the  Hon’ble  Supreme Court of India has justified the order of the High Court in holding that the delay, if any, for launching the prosecution could not have been condoned without notice to the respondents and behind their back and without recording any reason for condonation of delay.

Learned Senior Advocate appearing for the petitioner next relies upon the judgment of the Division Bench of this Court in the case of The State of Jharkhand & Ors. vs. Ashok Kumar Chokhani & Ors. reported in 2012 0 Supreme (Jhk) 1008 wherein, the Division Bench of this Court reiterated the settled legal position that the appellate court cannot decide the appeal on merits without condoning the delay in filingthe appeal, if it is filed after period of limitation and went on to observe that in case of filing the appeal after a delay of few days only, the Court cannot allow the application for condonation of delay without giving notice to the other party. It is further submitted by the learned Senior Advocate appearing for the petitioner that since the petitioner has not been given  any  opportunity  of  being  heard  in  the  matter  of  limitation though a valuable right has accrued to the petitioner, after the period of limitation  for filing revision was over, in respect of the impugned order, therefore dislodging the said valuable right accrued to the petitioner by condonation of delay behind the back of the petitioner; amounts to grave illegality. Hence, it is submitted that the impugned order be set aside.

The learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer and submits that the petitioner participated in the criminal revision without demur knowing pretty well that the delay has been condoned withoutnotice to the petitioner and having participated in the entire criminal proceeding and having not specifically challenged the said order, the final order cannot be challenged by the petitioner. Hence, it is submitted that this criminal miscellaneous petition being withoutany merit be dismissed.

Having  heard  the  submissions  made  at  the  Bar  and  after  going through the materials in the record, it is pertinent to mention here that  when  the  limitation  period  to  file  a revision  expires,  a legal right accrues in favour of the opposite party and to take away this right  by  condoning  the  delay,  the  principles  of  natural  justice  is required to be followed and such principles of nature justice includes that the opposite party be given an opportunity of being heard, in the matter of limitationalso.

Perusal of the record reveals that vide order dated 26.02.2015 the learned Sessions Judge, Godda in Criminal Revision No. 09 of 2015 has mentioned that “Heard on the point of admission along with u/s 5  of the limitation Act. Perused the case record. Delay is condoned”.

The order dated 26.02.2015 is certainly not a  reasoned order nor the petitioner herein who was the opposite party in the said revision was given any opportunity of being heard by the learned Sessions Judge, Godda, in the matter of limitation. As already indicated  above,  certainly  with  the  expiry  of  period  of  limitation to file criminal revision, a  legal right has  accrued to the opposite party and by condonation of the delay, the petitioner has been deprived of the said right accrued to him.

It is a settled principle of law that principle of waiver, acquiescence or estoppel is not applicable to any criminal proceeding.  Since,  the  entire  revisional  order  is  under  challenge, this  includes  the  challenge  to  the  order  by  which  the  delay  was condoned  and  without  that,  the  final  order  could  not  have  been passed against the petitioner.

Under such circumstances, since the learned Sessions Judge, Godda has condoned the delay in filing the criminal revision without a  reasoned order and without giving any opportunity of being  heard  to  the  petitioner  herein  who  was  the  opposite  party before the revisional court,  this Court is of  the considered view that  the  subsequent  final  order  passed  in  the  said  revision  dated 15.02.2017 in CriminalRevision No. 09 of 2015 is not sustainable in law. Accordingly,the same is quashed and set aside.

The Criminal Revision No. 09 of 2015 is remitted to the court of learned Sessions Judge, Godda to pass a  fresh order in the matter of  the  application  under  Section  5 of  the  Limitation  Act,  filed  in that criminal revision, after giving notice and opportunityof being heard to all the opposite parties of that criminal revision.

In the result, this criminal miscellaneous petition is allowed to the aforesaid extent only.