Pappu vs State of M.P.

M.K. Mudgal, J.—The petitioner/accused has filed this Criminal Revision u/s 397/401 of Code of Criminal Procedure against the judgment dated 8.6.2005 passed by the Court of II ASJ, Guna in Cr. Appeal No. 627 of 2002 confirming the judgment dated 2.2.2002 passed by the Court of JMFC, Guna in Cr. Case No. 6 of 2002 convicting the accused u/s 325 and 323 of IPC and sentencing him to undergone Six months RI with fine of Rs. 100/- and one month''s RI respectively with the default stipulation.

In brief, the facts of the case are that, on the date of incident, when complainant and his cousin Gopal were sitting in front of their house, petitioner and co-accused Angoori came and started abusing them claiming that they will do the work of sweeping in village Bamori. The complainant tried to persuade them on the ground that he had been doing the work of sweeping in the said village since the time of his birth. The applicant and co-accused started beating him by means of lathi due to which, he suffered injury in his left leg. When Gopal tried to intervene, petitioner Pappu also caused him injury with lathi blow on his left hand''s wrist and head. The report of the incident was lodged by complainant at PS Bamori on the basis of which, offence u/s 323, 325 and 294 was registered at Crime No. 42 of 1998. The matter was taken under investigation. During investigation, the statements of witnesses were recorded. After completion of investigation, charge sheet was filed against the petitioner and co-accused. On the basis of material collected during investigation, charges were framed against the accused u/s 323, 325 and 294 of IPC and after trial, the trial Court convicted the accused-petitioner for the offence as indicated herein above.

On filing appeal by the petitioner-accused the same was dismissed by learned appellate Court confirming the judgment of conviction and sentence awarded by learned trial Court.

That, now, challenging the judgments passed by both the learned courts below, present revision petition has been filed with the delay of 8 years and 10 months along with application I.A. No. 3186 of 2014 for condonation of delay.

Learned counsel for the petitioner submits that the petitioner was a patient of tuberculosis and on the date of judgment he was absent before the court due to illness, hence, he could not come to know about the passing of the impugned judgment against him by the appellate Court. He being a poor man was busy in taking deshi treatment, hence, he could not come to learn about the judgment by the appellate court. When on 10.4.2014 he was arrested by the police and produced before the learned trial court, he came to know about passing of the impugned judgment. Immediately thereafter, he obtained certified copy of the order and arranged for payment of fee and filed this petition. Hence, the delay caused in filing the revision is based on bonafides and there was no malafide intention on the part of the petitioner in filing the revision late. Therefore, in the backdrop of submissions made above, it was prayed that the delay so caused in filing of the revision may be condoned.

Denying the averments made in the application, the respondent-state has filed reply submitting therein that no documentary evidence pertaining to his ailment of Tuberculosis is produced on record. Even otherwise, mere submission made in the application about suffering from serious disease is not sufficient and cannot be treated to be a sufficient explanation for condoning the inordinate delay of more than 8 years. Hence, the revision deserves to be dismissed as being barred by limitation.

Heard the arguments of learned counsel for the petitioner and perused the documents brought on record.

Interpreting Section 5 of the Limitation Act, the Hon''ble Apex Court in the case of M.K. Prasad Vs. P. Arumogam, has observed in para 7 as under:

In construing S. 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of S. 5 of the Limitation Act, this Court in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., held (paras 6 and 7):

Section 5 of the Limitation Act provides for extension of period of certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period" ? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last days for filing the appeal and the date on which the appeal was actually filed" he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous.

In construing S. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan (1889) ILR 13 Mad 269.

Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ''sufficient cause'' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.

Limitation law is a procedural law and approach for consideration of delay should be liberal and sympathetic. Generally, the delay may be condoned unless and until it is found inordinate and malafide. Opportunity of hearing on merit should be given to a party. The purpose of limitation Act is no way to defeat the justice on account of technicalities unless the motive is found to be malafide.

In the instant case, the delay is of 8 years and 10 months.

The impugned order was passed way back on 8.6.2005 and for this long period, it is difficult to believe that the petitioner could not know about dismissal of the appeal. No documentary evidence in support of his ailment has been filed by the petitioner for claiming condonation of such a drastic and inordinate delay. The reasons for delay in filing the revision stated by the petitioner are totally imaginary and concocted and in this way, appear to be malafide.

The delay is of 8 years and 10 months I.e. about nine years which can be said as fairly inordinate in the said circumstances. Since the reasons stated by the petitioner are not only improper but also unjust. The delay being inordinate as well as malafide, does not deserve to be condoned.

Therefore, the application (I.A. No. 3186 of 2014) for condonation of delay is hereby dismissed. Consequently, the revision being not maintainable, is hereby also dismissed.