Allahabad High Court
Ram Kishor Sharma vs State Of U.P. And 2 Others on 1 March, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 52 Case :- APPLICATION U/S 378 DEFECTIVE No. - 5 of 2016 Applicant :- Ram Kishor Sharma Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Abhitab Kumar Tiwari Counsel for Opposite Party :- G.A.,Anand Mani Tripathi Hon'ble Harsh Kumar,J.
Heard Shri Abhitab Kumar Tiwari, learned counsel for applicant, Shri Anand Mani Tripathi learned counsel for respondent nos. 2 and 3, learned A.G.A. for the State.
No counter affidavit has been filed to the application under section 5 of Limitation Act, despite repeated opportunity has been given vide order dated 15.09.2016.
Learned counsel for the applicant contended that the complaint case filed by the applicant was dismissed acquitting the respondent nos. 2 and 3 vide impugned judgment and order dated 11.09.2009 passed by Special Judicial Magistrate (C.B.I.) Ghaziabad in Case No. 6199 of 2004 Ram Kishore Sharma Vs. Ram Nagina and another; that the cross case being Case Crime No. 659 of 1997 was registered on the F.I.R. lodged by respondent no. 2; that both the cases were cross case of each other and the complaint case and criminal case on the F.I.R. lodged by respondent no. 2 proceeded and decided together; that parties had come to out of court, compromise in the two cases and both cases were decided after evidence in acquittal; that respondent no. 2 cleverly got the appeal filed against acquittal order through the State in which Criminal Appeal No. 139 of 2009, the applicant-appellant and others were convicted vide judgment and order dated 28.09.2012 passed by Additional Sessions Judge, Court No. 4 Ghaziabad; that upon getting knowledge of the conviction order passed against applicant and others, the applicant and other co-accused persons preferred Criminal Revision No. 3546 of 2012 before this Hon'ble Court; that the applicant and other upon obtaining bail, after a period of seven months of filing the revision preferred appeal against the impugned judgment and order dated 11.09.2009 before the Sessions Judge with an application for condonation of delay under section 5 of Limitation Act Misc. Case No. 131 of 2013; that vide order dated 14.03.2014 at Annexure-3, the delay in filing of the appeal was condoned by the Additional Sessions Judge, Ghaziabad and subsequently vide order dated 22.12.2015 at A-4, the appeal was dismissed on technical ground of being not maintainable under section 372 Cr.P.C. before the Sessions Judge, as in view of the provisions of section 378(4), the appeal lies before the High Court; that upon dismissal of appeal by the Additional Sessions Judge, Court No. 5 Ghaziabad on technical ground, the applicant obtained copies of the impugned orders which were made available to him on 15.01.2016 and without any further deliberate delay, he preferred this appeal on 04.03.2016; that the applicant has not committed any intentional or deliberate delay in filing of the appeal and the delay, if any, is bona fide and has been caused due to wrong legal advice, on account of which instead of filing appeal before this Court, the appeal was filed by his counsel before the Sessions Judge and appellant prosecuted that appeal in good faith; that the appellant is a poor villager having no knowledge of legal matters; that the delay has been caused for bonafide reasons without any ill will; that the applicant has every hope of success in appeal and if the delay is not condoned, the applicant will suffer irreparable and by condonation of delay, the accused respondent nos. 2 and 3 are not likely to suffer whatsoever.
Learned A.G.A vehemently opposed the prayer of condonation of delay.
Learned counsel for respondent nos. 2 and 3 relying on the case law given by the Apex Court in the case of Kaushalya Rani Vs Gopal Singh AIR 1964 SC 260, contended that since section 378(5) Cr.P.C. specifically provides that no application for leave to appeal under subsection 4 for grant of special leave to appeal from an order of acquittal, shall be entertained by the High Court, after expiry of six months where the complainant is public servant and sixty days in every other case, computed from the date of that order of acquittal and since the above provision relates to special law the provisions of section 5 of Limitation Act are not applicable to the case and whatsoever may be the ground, the application under section 5 of Limitation Act is legally not maintainable and delay in filing appeal can not be condoned; that in the alternative if the applicability of section 5 of Limitation Act is found to be there, the applicant has deliberately delayed the filing of appeal before this Court and intentionally filed appeal before Sessions Judge in wrong forum to harm and harass the respondents, so delay condonation application is liable to be rejected.
In reply, the learned counsel for the applicant has relied on the case law laid down by the Apex Court in the case of Mangu Ram Vs. Municipal Corporation of Delhi 1976 AIR 105 or 1976 SCR (2) 260 or 1976 SCC (1) 392 wherein it was held that provisions of section 5 Limitation Act do apply to these matters.
Upon hearing the learned counsel for the parties and perusal of record, before proceedings further, I feel it expedient in the interest of justice to reproduce the provisions of section 5 of Limitation Act as under:
Section 5. Extension of prescribed period in certain cases.
"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 ( 5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
It is pertinent to mention that in the matters of filing of civil suits the provisions of section 5 of Limitation Act do not apply and if a suit has become barred by time and limitation to institute suit has passed even with the help of section 5 a time barred suit may not be filed and brought within limitation after lapse of the period of the limitation and once a suit is barred by time, it may not be brought within limitation or treated to be within time, with the help of provisions of section 5 of Limitation Act. It is pertinent to mention that the legislature has made a provision in section 14 of the Limitation Act, where an exclusion of time of the period of bona fide proceedings in court without jurisdiction, has been provided and the above provision is as under :--
Section 14. Exclusion of time of proceeding bona fide in court without jurisdiction.
"(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
That the contention of learned counsel for respondents that there is no explanation for the delay from 2009 to 2013, has been made only to be rejected as undisputably the applicant filed appeal before the Sessions Judge with application of condonation of delay Misc. Case No. 131 of 2013 which was allowed vide order dated 14.03.2014 at Annexure-3 and appeal was treated to be within time. In the circumstances when the cause shown for the delay for the period from 2009 to 2013 has previously found to be sufficient, the applicant may not be require to explain it again and the application for condonation of delay may not be dismissed on that score of not explaining the delay for above period.
I find that the matter of the condonation of delay in the matter of filing of suit is more tough and strict in comparison to condonation of delay in moving applications or appeals etc. It may not be disputed that the appeal before Sessions Judge against the impugned order was filed by applicant due to incorrect legal advise. It cannot be considered under any imagination that the applicant deliberately and malafide, filed appeal before the Sessions Judge so that after a long period when appeal be dismissed on technical ground, he will file appeal before the High Court with the help of application under section 5 of Limitation Act.
It is settled principle of law that court must be extremely liberal in the matters of condonation of delay and if a person has acted in bona fide manner and has not committed and default and has not acted and mala fide and unfair manner his application for condonation of delay may be allowed.
In view of the discussions made above, I have come to the conclusion that the appellant has not committed any wilful delay in filing of appeal and he may not be made to suffer for the wrong legal advice and persuing appeal before Sessions Judge in wrong forum.
The cause shows for delay in filing the appeal is sufficient and there is sufficient ground in condonation the delay.
Hence, application under section 5 of Limitation Act is allowed and delay is condoned. The appeal will be treated to be within time.
Office is directed to allot the regular number.
Order Date :- 1.3.2017 Sharad/-