Delhi District Court
In Re vs M/S. Josan Diagnostic Centre on 9 October, 2019
Crl. Revision No.264/2019
IN THE COURT OF GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE 09,
TIS HAZARI COURTS, DELHI.
Crl. Revision No.264/2016
CNR No.DLWT010066672019
In re:
District Magistrate/District Appropriate Authority,
(PC&PNDT Act), West District,
Plot No.3, Shivaji Place, Rajouri Garden,
New Delhi. .......Petitioner
Versus
1. M/s. Josan Diagnostic Centre,
MBlock Mehta Chowk, Gurudwara Shivaji Enclave,
Rajouri Garden, Delhi.
2. Dr. Jasveer Singh,
S/o Sh. Amar Singh,
R/o A2/57, Rajouri Garden, Delhi.
3. Sh. Ramesh,
S/o Sh. Jati Ram,
R/o A32, Kawar Singh Nagar,
Nangloi, Delhi110032.
4. Sh. Sunil,
S/o Sh. Mahavir,
R/o Chopra Colony, Goohana,
District Sonipat, Haryana. .......Respondents
District Magistrate/District Appropriate Authority
Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 1/11
Crl. Revision No.264/2019
Date of filing of revision petition : 26.08.2019
Date on which arguments were heard : 23.09.2019
Date of pronouncement of judgment : 09.10.2019
Decision : Dismissed
JUDGMENT:
1. This revision petition under Section 397 read with Section 399 of Code of Criminal Procedure, 1973 is filed against the order dated 15.04.2019 passed by Ld. M. M. (West), Tis Hazari Courts, Delhi in Crl. Complaint Case No.1505/18 filed under Section 28 of the PCPNDT Act against the respondents/accused.
2. The brief background relevant for the disposal of the petition is that on the basis of the complaint against the respondent no.1, a raid was conducted at his clinic on 02.03.2016 vide FIR No.132/2016. The charge sheet was filed against the respondents and the respondents were summoned. On 22.02.2018, a complaint was also filed under Section 28 and 23/25/27 of PC & PNDT Act read with Section 200 Cr.P.C. registered vide complaint no.1505/18 before the court. The District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 2/11 Crl. Revision No.264/2019 proceedings in both the cases were not clubbed together and the complaint case was dismissed vide impugned order and hence the present petition.
3. The counsel for the petitioner has assailed the impugned order by contending that the impugned order has passed without application of judicial mind and consideration of relevant record and the fact that the prosecution of the respondents on the basis of the FIR registered in the case has been dismissed. In view of the submissions made, the Ld. counsel for the petitioner prays for setting aside the impugned order.
4. Alongwith the revision petition, an application has been filed by the petitioner for condonation of delay of 28 days in filing the present petition on the ground of illness of the counsel of the petitioner.
5. The notice of the revision petition was issued to the respondents. The respondents put the appearance through their counsel and strongly opposed the grounds of revision petition. They submitted that the impugned order does not suffer from any illegality and therefore, no interference is called for. It is further argued that there is no plausible District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 3/11 Crl. Revision No.264/2019 reason for not filing the petition within time and the reasons mentioned in the application for condonation of delay is false, do not inspire confidence and is a ploy to get the petition proceeded on false grounds. It is further submitted that the prescription dated 02.08.2019 relied by the counsel for the petitioner does not prescribe for any rest. It is further submitted that the petitioner can not be granted opportunity and is not entitled for any leniency on the ground of being a govt. agency. The counsel for the respondents further prayed to dismiss the revision petition as the same being barred by limitation as no sufficient reason has been explained for not filing the criminal revision within prescribed time.
Counter affidavit/reply on behalf of respondents no.l and 2 has been filed alongwith written submissions in support of contention. The respondents no.1 and 2 also relied upon the below mentioned judgments in support of contention:
(i) State of Odisha (Vigilance) v. Purna Chandra Kandi passed by Hon'ble Supreme Court in SLP No.(Criminal) Diary No.29657/2019;
(ii) Dr. Smt. Kiran Agrawal v. State of Chhattisgarh & Ors. passed by Hon'ble High Court of Chhattisgarh, Bilaspur in W.P.C. No.1494/2018;
(iii) Dr. Mitu Khurana v. State of NCT of Delhi & Ors.
dated 27.01.2018 passed by Sh. Ashutosh Kumar, Special Judge 02 (P.C. Act), CBI, NorthWest District, Delhi.
(iv) Gangadhar Janardan Mhatre v. State of Maharashtra & Ors. dated 28.09.2004 passed by Hon'ble District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 4/11 Crl. Revision No.264/2019 Supreme Court in Appeal (Crl.) NO.639/1999 and
(v) Nishu Wadhwa v. Siddharth Wadhwa & Anr.
passed by Hon'ble High Court of Delhi in W.P. (Crl.) 1253/16 dated 10.07.2017.
6. I have heard the counsel for both the parties. The trial court record has also been perused.
7. Before disposing off revision petition, I propose to adjudicate upon the application of the petitioner U/s 5 of the Limitation Act for condonation of delay in filing the revision petition. Ld. counsel for the respondents denied the contentions and prayed to dismiss the revision petition being barred by limitation and without any merit.
8. Section 5 of the Limitation Act, 1963 contained the provision regarding the condonation of delay in filing the revision petition which is reproduced herein for reference: Section5 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.
Explanation The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 5/11 Crl. Revision No.264/2019 computing the prescribed period may be sufficient cause within the meaning of this section.
9. The prescribed period of Limitation for filing the criminal revision is 90 days from the date of decree or order or sentence sought to be revised in view of provisions of Limitation Act, the delay in filing the criminal revision petition may be condoned and a criminal revision petition may be admitted after the prescribed period of the limitation if the petitioner satisfies the court that he had sufficient cause for not preferring the revision petition within such period.
10. It is well settled principle of law that while dealing an application for condonation of delay in filing revision petition, the court shall adopt liberal approach and the expression "sufficient cause" is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the live purpose for existence of the institution of the courts and in this regard the judgment of Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag vs. Mst. Katiji AIR 1987 SUPREME COURT 1353 can be referred to and para 3 of the judgment reads as District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 6/11 Crl. Revision No.264/2019 under: "The legislature has conferred the power to condone delay by enacting Section 5 "Any appeal or any application,other than an application under any of the provisions of Order XXI of the Civil Procedure Code,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." of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause"employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other,cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 7/11 Crl. Revision No.264/2019 capable of removing injustice and is expected to do so."
11. In this regard another judgment of the Hon'ble Supreme Court in State of Haryana vs. Chandra Mani AIR 1996 1623 is also relevant for reference and para no. 6 & 7 of the judgment read as under:
6. In O.P Kathpalia v. Lakhmir Singh (dead), (1984) 4 SCC 66:
(AIR 1984 SC 1744), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 : (AIR 1987 SC 1353), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of the justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
Judiciary is not respected on account of its power to legalise justice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 8/11 Crl. Revision No.264/2019 this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before the law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned.
Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, filepushing, and passingonthebuck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigantnongrata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Smt. Prabha v. Ram Parkash Kalra, (1987) Supp SCC 338 : (AIR 1987SC1726), this Court had held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law."
12. This court is required to apply the law in a meaningful manner which subserves the ends of justice, which is the life purpose for existence of the court. I have gone through the trial court records. On District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 9/11 Crl. Revision No.264/2019 the day, the impugned order was passed, none appeared on behalf of the complainant. At the outset, it is noted that in the application for condonation of delay, the illness of the counsel of the petitioner is taken as a ground but the medical prescription of the counsel does not support the contention. The limitation period for filing the petition after counting from the date of impugned order already expired on 15.07.2019 whereas the medical prescription relied is dated 02.08.2019 i.e. after the date of expiry of limitation period of more than 15 days. Merely being a govt. agency does not mean that lenient view is taken against the petitioner who is also to follow the law in later and spirit. The matter would have been pursued by the petitioner more diligently than an ordinary man. The ratio of the judgment of Hon'ble Supreme Court relied by the respondents in case titled State of Odisha (Vigilance) vs. Purna Chandra Kandi in SLP (Crl.) diary no.29657/2019 decided on 02.09.2019 is squarely applicable in the facts of this case. It was held by Supreme Court that mere govt. efficiency can not be a ground for condoning the delay and it is for the petitioner to put in its own house in order. In the facts and circumstances of the case, the court is of the considered view that the petitioner has failed to show the sufficient cause explaining the delay for not filing the revision petition within time which is barred and is liable to dismissed. The application for condonation of delay in filing District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 10/11 Crl. Revision No.264/2019 the revision petition is accordingly dismissed. The revision petition filed by the petitioner appears to be without any basis and barred by limitation. Consequently, the revision petition is dismissed.
13. Trial court record be sent back alongwith the copy of the judgment. File of revision petition be consigned to record room.
Digitally signed by Gorakh Nath Gorakh Nath Pandey
Pandey Date: 2019.10.14
17:27:11 +0530
Announced in the open court (Gorakh Nath Pandey)
on 09.10.2019 Addl. Sessions Judge 09 (West)
Tis Hazari Courts, Delhi.
District Magistrate/District Appropriate Authority Vs. M/s. Josan Diagnostic Centre & Ors. Page No. 11/11