Smti. Kadambini Biswas v. The State (Through Public Prosecutor
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
CRR/39/2024 Smti. Kadambini Biswas ...Petitioner Vs.
The State & Anr. ... Opposite Parties Mr. K.M.B. Jayapal ... for the Petitioner Mr. Sumit Karmakar ...for the Opposite Party no.1 Mr. Deep Chaim Kabir ...for the Opposite Party no.2 November 13, 2024 [M.A.Mobin] Item No.1
1. The legality, propriety and correctness of the Order No.7 dated 29.2.2024 as passed in Criminal Revision no.09 of 2023 by the learned Sessions Judge, Andaman & Nicobar Islands, Port Blair is the subject matter of the instant revisional application.
2. By the impugned order learned 1st Revisional Court allowed the revisionist's application under Section 5 of the Limitation Act subject to payment of cost of Rs.2000/-.
3. The Private Respondent of the said the criminal revision case who is the petitioner before this Court and the complainant before the learned Trial Court in a proceeding under Section 138 of the N.I. Act felt aggrieved and preferred the instant Revisional application.
4. In course of hearing learned Counsel appearing on behalf of the Revisionist/Complainant submits before this Court
that while passing the impugned order learned Trial Court has failed to visualize that no explanation has been offered by the Private Respondent herein for delayed filing of Criminal Revision no.9 of 2023. It is submitted that from the order sheet of the learned Trial Court it would reveal that the Private Respondent who is the accused before the Trial Court appeared on September 23, 2021 and prayed for bail whereas in his application under Section 5 of the Limitation Act it has been mentioned that the accused who is the Private Respondent herein applied for the Certified Copy of the entire order sheet of the Trial Court on 26.7.2023 after coming to know regarding some alleged illegality while issuing process and without taking cognizance.
5. It is submitted further that within the four corners of the application for condonation of delay no plausible extension has been given by the Private Respondent herein regarding such delay and therefore learned 1st Revisional Court ought to have considered that the delay in filing the said Revisional application has not been properly explained.
6. Learned Counsel appearing on behalf of the Revisionist/Complainant in course of his argument placed his reliance upon the reported decision of Esha Bhattacharjee Vs.
Managing Committee of Raghunathpur Nafar Academy and Others reported in (2013) 12 Supreme Court Cases 649. It is submitted
that the proposition of law as enshrined in the reported decision of Esha Bhattacharjee (Supra) has not been followed by the learned 1st Revisional Court and thus the order impugned is required to be interfered with.
7. Per contra the learned Counsel appearing on behalf of the Private Respondent submits before this Court that no interference is required since the order impugned is an interlocutory order.
8. On perusal of the entire materials as placed before this Court and after consideration of the rival submissions of the learned Advocate for the contesting parties it appears to this Court that admittedly there occurred some delay on the part of the Private Respondent/Accused in applying the Certified Copy of the Trial Court's orders especially when he made his appearance before the learned Trial Court on 23.9.2021.
9. However, considering the fact that a relevant question of law is the subject matter of the Revisional application before the first Revisional Court and also considering the fact that the delay in filing the said Revisional Application is 154 days this Court considers that the learned 1st Revisional Court committed no mistake and/or error of law in condoning the delay especially when the period of delay is not excessive and the condonation of which causes no much prejudice to the revisionist before this Court.
10.
In considered view of this Court the reported decision of Esha Bhattacharjee(Supra) as cited from the revisionist herein practically supports the finding of the learned 1st Revisional Court since in Paragraph 18 of the said reported decision the Hon'ble Apex Court held as under:- "18. Recently in Maniben Devraj Shah v. Municipal Corpn. O Brihan Mumbai, [(2012) 5 SCC 157] the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil [(2001) 9 SCC 106] wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.
Thereafter, the two-Judge Bench ruled thus: (Maniben Devraj Shah case, SCC pp. 168-69, paras 23-24)" "23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can enither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgement under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
24. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay."
11.
Coming to the factual backdrop of this case it appears to this Court that since serious question of law is agitated before the 1st Revisional Court at the instance of the Private Respondent herein which may be unknown to the Private Respondent who is a layman and also considering the fact that 154 days delay is not so long causing much prejudice to the revisionist/complainant herein, this
Court is of considered view that the order impugned requires no interference from this Court.
12.
Accordingly, CRR no.39 of 2024 is dismissed on contest.
13.
Interim order as passed earlier stands hereby vacated. 14.
There shall be however no order as to costs.
15.
Before parting with this Court directs the learned Sessions Judge, A & N Islands to dispose of the Criminal Revision Case no.9 of 2023 positively within a month from the date of communication of this order.
16.
It is made clear that the time limit as made hereinabove is mandatory and peremptory.
17.
Learned Advocate for the Revisionist herein is at liberty to communicate the Server Copy of this order to the learned Sessions Judge, A & N Islands. Learned Sessions Judge, A & N Islands, is hereby requested to act on the Server Copy of this order.
18.
Urgent Photostat certified copy of this order be supplied to the parties after compliance of all required formalities.
(Partha Sarathi Sen, J.)