P.V. Mammu Haji vs C.H. Jayaprakash and Others

S. Manikumar, J.—Criminal Revision Case is directed against the order in Cr.M.P. No. 605 of 2012 in an unnumbered Crl.Appeal No. -- of 2012 dated 10.04.2013, on the file of the learned Principal Sessions Judge, Puducherry, The order reads as follows:

"This is a petition filed under Section 5 of the Limitation Act to condone the delay of 30 days in representing the appeal.

Petitioner called absent. Batta not paid. Hence, petition is dismissed for default."

Earlier, at the stage of condone delay, in filing the Criminal Revision Case in M.P. No. 1 of 2015 in Crl.RC.SR.No. 3250 of 2015, by inviting the attention of this Court to the receipt dated 01.08.2013, Mr.R.Natarajan, learned counsel for the petitioner submitted that a sum of Rs. 1,50,000/- representing the cheque amount, subject matter in C.C. No. 111 of 2002, on the file of the learned Judicial Magistrate, Mahe, Puducherry, has been paid to respondent/complainant. Receipt stated to have been filed before the learned learned Principal Sessions Judge, Puducherry, is extracted hereunder.

"RECEIPT

I, C.H. Jayaprakash, S/o. Late Raghavan, Complainant in C.C. No. 111 of 2002 on the file of Hon''ble Judicial Magistrate Court, Mahe, have received the cheque amount of Rs. 1,50,000/- (Rupees One Lakh fifty thousand only) from P.V. Mammu Haji, S/o. Abdu, Accused in the abovesaid case in terms of the settlement of the case."

Earlier when M.P. No. 1 of 2015 in Crl.R.C.SR.No. 3250 of 2015, came up for hearing, notice was ordered in the condonation petition. Private notice was also permitted. Upon service of the notice, name of the 1st respondent was shown in the cause list. Respondent No. 2 therein, was represented by the learned Additional Public Prosecutor, Puducherry.

Thus, having regard to the right of an accused to challenge conviction and taking note of the receipt dated 01.08.2013, said to have been issued by the respondent/complainant, this Court, in M.P. No. 1 of 2015, condoned the delay of 551 days in filing the Criminal Revision Case.

Now the order impugned in this revision is the dismissal of Criminal Cr.M.P. No. 605 of 2012 in an unnumbered Crl.Appeal No. -- of 2012 dated 10.04.2013, filed to condone the delay of 30 days in representing the appeal.

Considering the limited scope, this Court deems it fit to consider a decision made in the The General Manager Heavy Vehicles Factory and Another Vs. T. Shedrak, (1979) ILR (Mad) 55 , this Court held as follows:

"8. I may point out in this context the difference between the condonation of delay in the proper presentation of a particular proceeding pursuant to S.5 of the Limitation Act and the condonation of delay in the representation of a particular proceeding obviously under the inherent powers of the Court under S. 151, C.P.C. In the former case, there is a specific provision in the statute, namely, the Limitation Act, which imposes an obligation on the court itself suo motu to reject a proceeding if it is barred by limitation. That strictness is not available or applicable to a case of a delay in the representation of the proceeding in question. Consequently, the provisions and considerations applicable to excusing the delay under S.5 of the Limitation Act will not apply to the question of excusing the delay in re-presenting the papers and therefore, the considerations relevant to excusing the delay with reference to petitions, disposable under the Limitation Act, will bear no analogy to those relevant to a decision of the question in the present controversy. When Mr.K.N. Balasubramanian relied on S.148, C.P.C., I asked him to bring to my notice any decision of any court holding that when delay in the re-presentation of papers is excused by a court, that power is exercised only under S.148, C.P.C. so as to justify the party who opposed the condonation of the delay taking up the matter in revision. The learned counsel frankly conceded that he is not able to put his finger on any such decision. Under these circumstances, I have proceeded on broad considerations, and in particular with reference to the distinction between the delay in the presentation of a proceeding and the delay in the representation of the papers with reference thereto. In view of the basic difference between the two, I am of the opinion that the considerations relevant to the former will not apply to the delay in re-presenting the papers in any proceeding, whether it be a suit, a civil revision petition, a first appeal or a second appeal in any court, notice to the respondent in the main case is not necessary, and even if such notice is given to the respondent and he is heard, and overruling his objection the delay is condoned, he cannot be said to have been aggrieved in the sense of there being a judicial determination against him so as to entitle him to approach the High Court under S.115 C.P.C. In view of this, I hold that this petition is not maintainable and reject the same."

On the facts and circumstances of this case, it could also be noticed that it was only a delay of 30 days in representing the appeal, filed against conviction and sentence imposed on the petitioner and the learned Principal Sessions Judge, Puducherry, himself could have condoned by exercising his discretion, considering the fact that the petitioner has been convicted in C.C. No. 111 of 2002 on the file of the learned Judicial Magistrate, Mahe. Right to file an appeal against conviction is statutory. With due respect, the learned Principal Sessions Judge, Puducherry, ought not to have been too technical in dismissing the petition, filed under Section 5 of the Limitation Act to condone the delay of 30 days in representing the appeal.

In the light of the decision in T.Shadrak''s case and for the reasons stated supra, order impugned in Cr.M.P. No. 605 of 2012 in an unnumbered Crl.Appeal No. -- of 2012 dated 10.04.2013 on the file of the learned Principal Sessions Judge, Puducherry, is set aside. Unnumbered appeal has to be processed and posted for hearing. Learned Principal Sessions Judge, Puducherry, is directed to fix a date for hearing of the appeal.

With the above directions, the criminal revision case is allowed.