Updesh Singh v. State Of Punjab & ORS

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of Decision: August 5, 2016 Updesh Singh ...Applicant/appellant

Versus

Jagan Nath and others

...Respondents

CORAM:

HON'BLE MR. JUSTICE A.B. CHAUDHARI

Present:

Mr. Parminder Singh Kanwar, Advocate, for the applicant/appellant.

A.B. CHAUDHARI, J. (Oral) Heard learned counsel for the applicant/appellant. The applicant-Updesh Singh has filed an application under Section 378(4), Cr.P.C., seeking special leave of this Court to file an appeal against the judgment of acquittal, dated 4.1.2012, passed by learned SubDivisional Judicial Magistrate, Mukerian, District Hoshiarpur, in a complaint case, filed by the applicant under Sections 148, 426, 427, 447 read with Section 149, IPC, against the non-applicant/respondents. Another application has been filed seeking condonation of delay of 815 days in filing the application seeking special leave to appeal and the appeal. Learned counsel for the applicant/appellant submits that the delay of 815 days in filing the application for grant of special leave and appeal has occurred because the applicant has chosen a wrong forum. In this

regard, he has invited my attention to the order, dated 20.11.2013, passed by learned Additional Sessions Judge, Hoshiarpur, allowing the applicant to withdraw the appeal filed by him against the judgment of acquittal and to file appeal in this Court.

The provision for filing an appeal against acquittal arising in a complaint case exists on the statute book from the beginning. There was no justification for the applicant/appellant to file an appeal before Sessions Court, Hoshiarpur, when the law clearly provided for filing of such appeal before the High Court out of a private complaint case Section 5 read with Section 14 of the Limitation Act speaks about the bona fide of the applicant in prosecuting a particular appeal before the Court which is not of competent jurisdiction. The applicant/appellant is presumed to know that the appeal would be maintainable before the High Court and not before the Sessions Court.

In view of the matter, I find that the applicant/appellant did not have bona fide as required in law and presented the appeal before Sessions Court, whereas as a matter of fact the appeal by virtue of Section 378(4), Cr.P.C., lay before the High Court. When the bona fide does not exist, the power under Section 5 read with Section 14 of the Limitation Act cannot be exercised.

Even otherwise, the alleged incident was of the year 2005. According to the applicant/appellant, the order, dated 13.6.2005, passed by the Sub Divisional Magistrate, Mukerain, has been relied upon by the Trial

Court, which was not dealing with the land of the applicant and the subject matter was mischievously being dealt with by the officers and villagers. In any case, the findings and acquittal recorded by learned Court below does not affect the applicant/appellant.

In the result, both the applications, i.e. for condonation of delay and grant of special leave to appeal, are dismissed. (A.B. CHAUDHARI) JUDGE August 5, 2016 Pkapoor Whether Speaking/Reasoned:

YES / NO Whether Reportable:

YES / NO