Calcutta High Court (Appellete Side)
State Of West Bengal vs Munwar Ali Khan on 28 July, 2010
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Appellate / Revisional /Criminal Jurisdiction
Present :
THE HON'BLE MR. JUSTICE AMIT TALUKDAR
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
GOVERNMENT APPEAL NO. 1 OF 1990
With
CRAN No. 1063 of 2010
State of West Bengal..... Appellant
Vs
Munwar Ali Khan ....Respondent (In Jail)
For the Appellant / State : Mr. A. Goswami, Ld. P.P.
Mr. K.J. Ahmed
For the Respondent : Mr. Prabir Mitra
Mr. S. Mukherjee
Judgment on : 28.07.2010
RAGHUNATH RAY, J. :
This appeal is directed against the judgement and order of acquittal passed by the learned Additional Sessions Judge Purulia in Sessions Trial No. 24 of 1989 whereby the sole respondent hereinabove was acquitted of the charge in respect of 395 IPC.
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2. The aforementioned order of acquittal dated 25.07.89 is under challenge at the instance of the State of West Bengal mainly on the ground that the learned trial Court failed to appreciate the general tenor of evidence adduced by eye- witnesses including PW 1 Panchanan Mondal, Khalasi of the goods van, who proved the decoity on the van and also identified the accused respondent in T.I. Parade held before the learned Magistrate P.W. 16 as the person who snatched his belongings i.e. the full shirt and the torch bearing proper identification mark. Furthermore, the learned court below also failed to take into consideration the other relevant corroborative evidence, materials and circumstances on record coupled with extra judicial confession of the accused before the PWs pointing unerringly to the inference of guilt against the accused beyond all reasonable doubts. The impugned judgement and order of acquittal has thus occasioned a failure of justice.
3. The relevant facts leading to filing of this appeal by the government may be capsulised as under ;-
An FIR was lodged by one Anwar Mondal, a security guard in the armed constabulary of Government of West Bengal attached to the Escort party of the then Minister Sri Ambarish Mukherjee on the allegation that on 28.02.1984 while a van No. 2223 carrying Panchanan Mondal, Khalasi (PW 1) was approaching towards Samukgaria on its way to Hura from Bishnupur after releasing its goods, was made to stop due to road blockade by boulders while several persons including the present respondent emerging out of the jungle pounced upon the 3 vehicle and robbed the said Khalasi of his full shirt with a tailoring mark (LY) and torch light with identification mark 'repairing' etc. The driver of the vehicle was also robbed of general currency notes of sum of Rs. 152/- only which was paid by the consignee of the goods to the driver to make over the same for payment to the owner. At that material point of time the car carrying the minister with his pilot van reached the spot and found the road blockade. The escort fired on the air from his service revolver, untied the khalasi (PW1) and the driver who narrated the aforementioned occurrence to the informant.
4. On the basis of the said FIR, Hura PS. Case No. 7 dated 28.02.1984 u/s 395 was registered for investigation and immediately thereafter the then Officer - in - charge, Hura PS who took up the investigation himself rushed to the place of occurrence and tracked down two miscreants including this respondent in a pre- dawn swoop (i.e. on 29.02.1984). The respondent was detained with the possession of a stolen full shirt and a torch light which was being carried in a side bag while co-accused Taher Ali since deceased was intercepted with the possession of the general currency notes of Rs. 152/-.
5. On completion of investigation the charge-sheet under section 395 IPC was submitted against the respondent. The relevant G.R. Case No. 346 of 1984 was subsequently committed to the court of sessions by the then ld. SDJM Purulia on 09.12.1985. Accused respondent Manowar Ali was charged under section 395 IPC and accordingly on his pleading not guilty to the charge, he was put on trial. 4
6. During trial, the prosecution examined as many as 17 witnesses and also relied upon several exhibits (Ext 1, 2 series, 3 series, 4 series and 5) in support of its case while the case of the defence was that of innocence denial and false implication. The defence has, however, sought to rely upon Exhibits A & B. On conclusion of trial an order of acquittal was recorded by the ld. trial Judge after consideration of the entire evidence and circumstances on record both oral and documentary.
7. Feeling aggrieved with the aforementioned order of acquittal the State of West Bengal filed a Special Leave to Appeal under section 378(4) Cr. P.C. against the said order acquitting the respondent in the Sessions case No. 63 of 1986 under section 395 IPC. The Division Bench of this court granted Special Leave to Appeal under section 378 (4) Cr. P.C. vide order dated 20.12.89. After obtaining such Special Leave an application for admission of appeal was filed on behalf of the state on 07.12.1989. Such appeal against the aforementioned order of acquittal was admitted vide order dated 15.01.1990 passed by a Division Bench of this court. Accordingly records were called for, usual notices were issued and the respondent was re-arrested and released by the ld. CJM Purulia in terms of the afore-mentioned order of the Division Bench.
8. Even through the present appeal was made ready for hearing in the year 2006, it could not be heard out because of abscondance of the respondents. After a hot and persistent pursuit by law-enforcing agencies, the respondent could be nabbed on 01.02.2010. Subsequently, in the early part of March, 2010, CRAN 5 No. 1063/10 was filed with a prayer for the respondent's enlargement on bail. Thus, the appeal is now contested on behalf of the Respondent. Both the CRAN and Appeal are taken up together for hearing as directed earlier.
9. At the outset of his argument Mr. Mitra, the learned counsel for the respondent invited our attention to a situation which reflects that the instant appeal preferred by the Government was barred by limitation. He, therefore, proposes to argue on the preliminary point of maintainability of the appeal at the first instance without entering into the merit of the appeal. Accordingly, he confined his argument on the preliminary point of maintainability of this appeal. It is pointed out by him that the judgment and order of acquittal impugned was passed by the ld. Additional Sessions Judge, Purulia on 25.07.1989. But the instant appeal was preferred by the State on 07.12.1989. In this connection he refers to Article 114(a) of The Limitation Act 1963, (in short the said Act)which stipulates that the appeal has to be filed by the State within 90 days. According to him, this appeal was filed on behalf of the State beyond the statutory period of time. Furthermore, no notice was also given to the respondent by way of filing any application under section 5 of the said Act with a prayer for condonation of delay in preferring this appeal.
10. In support of his contention Mr. Mitra, has placed much reliance on the following rulings of the of the Hon'ble Apex Court ;-
(i) 2003 Supreme Court Cases (Cri) 1012 [State (Delhi Administration), Appellant v. Dharampal , respondent]. :: AIR 2001 Supreme Court 2924. 6
(ii) 2003 Supreme Court Cases (Cri) [264 Dwarka Dass and Others, appellants, v.
State of Haryana, respondent].
(iii) AIR 1999 Supreme Court 738 [Calcutta Municipal Corporation, Petitioner v.
Pawan Kumar Saraf and another, Respondents].
(iv) (2008) 3 Supreme Court Cases (Cri) 793 [State of Maharashtra, Appellant v.
Sujay Mangesh Poyarekar, Respondent].
11. Fortified with those rulings it is forcefully argued by him that the appeal by the State Government against an order of acquittal in terms of Section 378 Cr. P.C. would be governed by Article 114(a) of the said Act and as such the appeal in question ought to have been filed within 90 days from the date of order under appeal In the instant case such an essential statutory requirement was not complied with. Therefore, it is submitted by him that the instant appeal being barred by limitation is liable to be dismissed.
12. The learned Public Prosecutor in his usual fairness conceded to such submission as advanced on behalf of the respondent. It is frankly admitted by Mr. Goswami that in view of non-filing of any application under section 5 of the said Act with a prayer for condonation of delay, such delayed filing of appeal by the Government has become fatal. Such being the factual position, it would be a futile exercise on his part to argue on the merit of the appeal since it is apparent on the face of record that the appeal was preferred beyond the prescribed period.
13. We have very meticulously scrutinized the case record pertaining to this Govt. Appeal. It appears therefrom that the impugned judgment and order was passed by the ld. trial court on 25.071989 and after the lapse of more than four months, the appeal was filed on 07.12.1989. The filing of such appeal was, however, not preceded by any application under section 5 of the said Act seeking 7 condonation of delay in preferring this appeal by the State Government beyond the prescribed period of time. Against such factual scenario we would now proceed to take into consideration the argument of the learned counsel for the respondent on the question of maintainability of the present Gov. Appeal in the light of afore-cited judicial pronouncements of the Apex Court.
14. A bare perusal of section 378 Cr. P.C, makes it clear that the section itself draws a distinction between the appeal filed by the State Govt. or the Central Govt. who only need to obtain leave, and an appeal by a complainant who needs to obtain special leave. The limitation provided in sub-section (5) is only in respect of applications under sub-sections (4) i.e. application for Special Leave to Appeal by a complainant. If the complainant is a public servant, then the period of limitation for an application for Special Leave is six months. But whenever the complainant is a private party, the period of limitation for filing an application for Special Leave is sixty days. The period of six months as and / or sixty days do not apply to appeal by the State Govt. or the Central Govt.
15. Even though, no Special Leave is required to be obtained by the Govt., such Special Leave, instead of only leave was granted pursuant to a petition under section 378(4) Cr. P.C filed at the instance of the State Govt. on 02.12.1989. At any rate, after obtaining such 'Special Leave', an application under section 378(2) Cr. P.C. for admission of the Appeal against an original 8 order of acquittal was filed on behalf of the State through Additional Public Prosecutor on 07.12.1989.
16. Now, the short question for determination arises what would be the period of limitation for preferring an appeal against an order of acquittal by the Govt. In this context Article 114(a) of the said Act may be referred to and reliance can be placed upon a ruling of the Hon'ble Apex Court reported in 2003 Supreme Court Cases (Cri) 1012 [State (Delhi Administration), Appellant v. Dharampal , respondent]. ::
AIR 2001 Supreme Court 2924.
17. In paragraph 25 of the afore-quoted decision it is ruled as under ;-
"Appeals by the State Govt. or the Central Government continue to be governed by Article 114(a) of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the order appealed from. Needless to state, if there is a delay in filing an appeal by the State Government or Central Government it would be open to them to file an application under Section 5 of the Limitation Act for condonation of such delay. That period can be extended if the court is satisfied that there was sufficient cause for not preferring the appeal within the period of 90 days".
18. As already indicated earlier since the order of acquittal impugned was passed on 25.07.1989, the appeal was to be preferred within ninety days i.e, on or before within 23.10.1989. However, as per section 12 (3) of the said Act the time requisite for obtaining the copy of the judgment shall be excluded. Keeping in view the applicability of the said section it is pointed out that the petition for 9 obtaining a certified copy of the said judgement and order on behalf of the Government was filed on 08.08.1989 and such certified copy was made ready for delivery on 11.09.1989. Therefore, in computing the period of limitation, the time requisite for obtaining a copy of the judgement has been excluded as per the relevant provision of the said Act and after such exclusion it appears that the appeal was required to be filed by 27th November 1989. But the present appeal was filed on 07.12.1989. Admittedly, such appeal was not accompanied by any petition under section 5 of the said Act seeking condonation of delay. In such circumstances, it is quite evident that the appeal was filed beyond the prescribed period and as such the same was barred by limitation for 10 days.
19. In this context it is pertinent to mention that a close scrutiny of case record pertaining to G.A. No. 1/90 reveals that there was an office report dated 11.01.1990 which may be reproduced below :-
" An application for admission of appeal is put up below. The application is in time and in form."
Therefore, it seems, on consideration of such report, the instant appeal was admitted for hearing vide this Court's order dated 15.01.1990. In such view of the matter there is no scope to argue that in view of admission of the appeal in question it can be inferred that the Division Bench by implication after condonation of delay admitted the present appeal for hearing. On the contrary, it 10 is deducible from the materials on record that basing on an erroneous office report this appeal has been admitted. Perhaps, taking that aspect of the matter into account, no argument was advanced from the side of the state on that score. In such a situation, we are unable to accept the presumption that by implication the appeal has been admitted after condonation of 10 days' delay.
20. In view of foregoing discussion we feel constrained to hold that on the basis of a wrong calculation of the period of limitation an erroneous report was submitted by the office on 11.01.1990 and pursuant to such report the Division Bench took it for granted that the appeal was within the prescribed period and accordingly the same was admitted. However, at the same time we are not oblivion of the legal position that a solemn duty is also cast upon the appellant. State Government to file an application under section 5 of the said Act with a prayer for condonation of 10 days' delay on proper computation of the period of limitation. There is no doubt that the right of appeal stands conferred upon the State Government and such right is to be exercised within a certain period of time and even after the State Government fails to exercise such right within the stipulated period of 90 days, the government has option to pray for extension of 'prescribed period' in terms of section 5 of the said Act. If the Appellate Court is satisfied that there was sufficient cause for not preferring the appeal or making the application within the statutory period, the appeal may be admitted after the 'prescribed period'.
21. Since the Government Appellant failed to file any such application under section 5 of the said Act, in our considered view, this Court is not in a position to 11 condone 10 days' delay in preferring the appeal at the stage of hearing of the appeal itself by exercising its discretionary power since it is well-settled position of law that even "discretionary powers shall have to be exercised in a manner in consonance with the kown-principles of law and not other wise....."
22. In this connection reliance can be placed upon a ruling of the Hon'ble Apex Court reported in 2003 SCC (Cri) 264 [Dwarka Dass and Others, Appellants v. State of Haryana, Respondent] wherein it is held that "when appeal is barred by limitation, it results in extinguishment of right to appeal and conferment of a benefit on the accused which High Court has no jurisdiction to take away."
23. Against such legal and factual backdrop, it is held that the discretionary power vested in the Appellate Court and Revisional court cannot be exercised legally for extending the 'prescribed period' suo moto at the stage of final hearing of the appeal and revision if such appeal or revision is preferred beyond the 'prescribed period' as stipulated under the relevant provisions of the said Act.
24. Relying upon the principles of law enunciated in the afore-quoted ruling we are of the definite view that there is hardly any scope to proceed with the hearing of the appeal after condonation of delay suo moto by exercising discretionary power. Therefore, the present appeal being barred by limitation, is liable to be dismissed on that score alone.
25. In such view of the matter, we find that it would be a mere academic exercise, if we proceed to dissect evidence and circumstances on record for the purpose of deciding this appeal on merit. Accordingly, we do not feel it necessary 12 to enter into the merit of the present appeal especially when such appeal is preferred against an order of acquittal.
26. In such a fact situation the CRAN 1063/10 stands infructuous and no order need be passed on the prayer for enlargement of the appellant on bail.
27. Accordingly the instant appeal being barred by limitation stands dismissed. The CRAN No. 1063/10 is also thus disposed of. The appellant who is in jail be released forthwith and also be discharged from bail bond unless wanted in any other case.
Let a copy of this order together with LCR be sent down and the ld. trial court is to ensure necessary compliance.
A copy of the judgement and order also be sent to the Superintendent, Purulia District Correctional Home for information and necessary action.
Photostat certified copy of this order, if applied for, be supplied on priority basis.
(Raghunath Ray, J.) I Agree.
(Amit Talukdar, J. )