Vinod Ramgopalji Maheshwari vs Shobha and Others

I.K. Jain, J—This application under Section 482 of the Code of Criminal Procedure is filed for setting aside the order passed by learned Sessions Judge, Wardha on 23.12.2009 in Other Misc. Criminal Application No. 27/2009. By the said order, learned Sessions Judge rejected the application filed by applicant/accused No. 4 for condonation of delay in filing revision application under Section 397 of the Code of Criminal Procedure.

Facts giving rise to the present application may be stated in brief as under:-

Respondent No. 1 filed Summary Criminal Case No. 3659/2003 for the offences under Sections 499 and 500 read with Section 34 of the Indian Penal Code before the learned Chief Judicial Magistrate, Wardha. Applicant was arrayed as accused No. 4 in the complaint. On 19.8.2003, learned Chief Judicial Magistrate, Wardha issued process under Sections 499, 500 and 34 of the Indian Penal Code against the accused persons including the present applicant.

Being aggrieved by the said order, applicant wanted to file revision. As there was delay of 150 days in filing revision for recalling process, he moved Other Misc. Criminal Application No. 27/2009 for condonation of delay. It was rejected vide order dated 23.12.2009. Hence instant application is preferred under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned order and to allow application for condonation of delay filed by the applicant before the Revisional Court.

Heard extensively Mr. S.S. Ghate, Mr. A.L. Deshpande and Mr. N. Rao, learned counsel and learned APP for the applicant, respondent No. 1 and respondent No. 4 respectively. The learned counsel for the applicant submitted that delay occurred in preferring revision was not deliberate or intentional. He submitted that the learned Sessions Judge has not recorded cogent and convincing reasons and impugned order is perverse and unsustainable in law. The learned counsel further submitted that applicant is not at all interested in protracting the litigation and revision application ought to have been decided on merit by condoning the delay. The learned counsel submitted that similarly placed accused was already discharged from the proceedings and the said order of discharge has attained finality. According to him, revisional court has lost sight of this important fact and committed grave error in passing the order.

Per contra, learned counsel for respondent No. 1 vehemently contended that the application is nothing but an abuse of process of law. The learned counsel submits that applicant had made a categorical statement in the application for condonation of delay that on the date of passing of order of issuance of process he was not a party to the proceedings filed by respondent No. 1. He submitted that this statement was contrary to the record and on the basis of glaring incorrect statement, present application deserves to be dismissed in limine.

On merits, it is submitted by learned counsel for respondent No. 1 that 5 years inordinate delay was not at all explained by the applicant and application for condonation of delay was rightly rejected by the learned Sessions Judge. Learned counsel submitted that from the facts and circumstances it can be seen that since beginning conduct of applicant was to protract the trial and delay the proceedings by making various incorrect statements on oath. The learned counsel submitted that applicant cannot be permitted to utilize the judicial process and file the proceedings as per his whims and convenience de-hors law of Limitation.

In support thereof, learned counsel for respondent No. 1 placed reliance on Balwant Singh (Dead) Vs. Jagdish Singh and Others, AIR 2010 SC 3043 : (2010) 7 JT 398 : (2010) 8 SCC 685 : (2010) 8 SCR 597 : (2010) AIRSCW 4848 . In this case, the Hon''ble Supreme Court held that "sufficient cause" means presence of legal and adequate reason. It was observed that it is difficult to state any straight jacket formula which can unilaterally be applied to all cases without reference to the peculiar facts and circumstances of a given case.

Needless to mention here that the statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale.

It is a settled legal proposition of Law of Limitation that where a case has been presented in the court beyond limitation, applicant has to explain as to what was the "sufficient cause" means an adequate and enough reason which prevented him to approach the court within limitation. In case there was no sufficient cause to prevent applicant to approach the court on time, condoning the delay would amount to passing an order in violation of statutory provisions.

At the same time it is also settled that the words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance a substantial justice when delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of applicant. These principles are required to be adhered to and applied appropriately depending upon the facts and circumstances of a given case.

In the case on hand, as stated by the applicant there was delay of 150 days in preferring revision against the order of issuance of process passed by the learned Chief Judicial Magistrate, Wardha. Copy of the application shows the contention raised by the applicant that on the date of passing of order of issuance of process he was not a party to the complaint filed by respondent No. 1. It can be seen from complaint filed by respondent No. 1 that applicant was arrayed as accused No. 4. Thus, averments in the application for condonation of delay to that effect are not in consonance with the record.

Further the order of issuance of process was passed by the learned Chief Judicial Magistrate, Wardha on 19.8.2003. In pursuance to the said order applicant was served on 26.2.2004. As he did not appear, bailable warrants were issued against him from time to time. On one of the occasions, Manager (Personnel) of Nav Bharat, Nagpur informed the court in writing that applicant was not able to attend the court on 8.8.2008. On 2.9.2008 applicant moved application for grant of permanent exemption from personal appearance. On 24.9.2008 application for cancellation of non-bailable warrant was filed by the applicant. He was released on cash security. Thereafter again applicant consistently remained absent on various occasions and filed applications for exemption from personal appearance.

Considering these facts, the learned Sessions Judge observed that since five years applicant is trying to protract the matter and rejected the application for condonation of delay as it was found without any justifiable ground. The above chronological events have not been disputed by the applicant. So the legal maxim "dura lex sed lex" (the law is hard but it is the law) stands attracted in such a situation. The glaring facts and circumstances clearly indicate that applicant was not diligent and remained inactive for long years. He utterly failed to show sufficient cause for condonation of delay. According to applicant, he was the Chief Editor and being loaded with heavy work could not contact his counsel. This ipso-facto cannot be a sufficient cause to condone delay.

In this view of the matter, no interference is required with the impugned order passed by the learned Sessions Judge, Wardha. The application lacks merits and is accordingly dismissed. No order as to costs. Rule is discharged.

At this stage prayer is made by the learned counsel for applicant for staying the effect and operation of this judgment for a period of eight weeks. In the facts of the case prayer is rejected.