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TMI Blog2024 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... fide belief that the remedy against impugned order was before the Sessions Court by filing a revision - Effect of filing the proceedings before the wrong Forum - HELD THAT:- The explanation given in the application would clearly go to show that the revision was filed with a bona fide belief that the same is maintainable. Secondly, when the objections were raised, the Special Public Prosecutor intimated the Department and thereafter the documents were collected and the draft of the appeal along with delay application were prepared. Thus there is sufficient cause disclosed by the Applicant in approaching this Court beyond the period of limitation. Department would not be benefited by filing the proceedings before the wrong Forum deliberately. It is admitted fact that the complaint filed by the complainant was rejected only on the ground that the Applicant along with Counsel unable to remain present. The complaint was not decided on merits. Thirdly, action was taken when the Respondent raised objections to the tenability of the revision and by corrective measure, an appeal was filed before this Court even when the revision was pending before the Sessions Court. Such revision was late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the Applicant that he is entitled for the exclusion of such time litigating before the wrong Forum needs to be considered. In the present matter, the record shows that the Applicant has diligently prosecuted the matter by filing revision and that too within a period of limitation. Once an objection was taken, the matter was re-examined and accordingly a decision was taken to file an appeal even during the pendency of the revision proceedings. The learned Sessions Court was not called upon by the Respondents to decide on its own jurisdiction or the maintainability of revision. The documents and opinions were furnished and accordingly the appeal was drafted within 2 weeks from the date of receipt of all the records. Immediately on the next date of receipt of the draft of an appeal, it was filed before this Court. This clearly shows the bona fide attempt and the due diligence adopted by the Applicant in prosecuting the matter. Thus, the reasons disclosed in the application and that too on affidavit must be construed as sufficient cause to condone the delay. Application stands allowed. The delay in filing an application for leave to appeal along with a memo of appeal stands co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or condoning the delay for filing an application for special leave to appeal. 7. Ms Razaq would submit that revision was filed within time and once it was observed that revision is not maintainable steps were taken to file an appeal along with the delay application and only thereafter the revision file before the District Court was withdrawn. She would submit that the reasons for delay are disclosed in the application which are clearly disclosing sufficient cause and exercise of due diligence. She submits that some time was consumed for the purpose of processing of the file and since the Applicant is the Department, the decision was required to be taken by the competent authority for the purpose of filing an appeal and withdrawal of the revision. The application is filed on affidavit of the concerned officer which clearly goes to show that revision was filed with a bona fide belief and on the instructions of the concerned Standing Counsel but since the objections were raised, the matter was re-examined and accordingly appeal is filed along with the present application. 8. Ms Razaq would submit that there is no deliberate attempt on the part of the Applicant to file the appeal after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submits that the application along with the appeal was presented before this Court on 01/04/2019 and there is absolutely no sufficient cause to condone such delay. He would submit that in criminal matters the Applicant ought to have shown seriousness in contesting the matter so also filing of the proceeding in case of adverse orders. He submits that a valuable right accrued in favour of the Respondent who was acquitted by the learned Magistrate and therefore such valuable right cannot be taken away lightly and casually. 14. Mr Nankani would submit that mere filing of the revision before the District Court is not a good ground as ignorance of law cannot be an excuse. Besides he would submit that there are no pleadings about wrong advice given by the Standing Counsel for the purpose of filing a revision. 15. Mr Nankani placed reliance on the following decisions: Set I Maqbul Ahmad vs Onkar Pratap Narain Singh [AIR 1935 PC 85], State of Maharashtra v. Vithu Kalya Govari [2008 (6) Mah. LJ 239], Lanka Venkateshwarlu vs State of Andhra Pradesh Ors. [(2011) 4 SCC 363], Postmaster General and Ors. vs Living Media India Ltd and Anr [(2012) 3 SCC 563], Amalendu Kumar Bera and Ors. vs State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the decisions would constitute sufficient cause for the purpose of condoning delay. It is also discretion of the Court which has to be exercised judiciously based upon the facts and circumstances of each case. Sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona fide is attributed to the party. Similarly the Courts do not have power to extend period of limitation based on equitable grounds. If the party is involved in negligence, lack of bona fide or in action then there cannot be any justified ground for condoning the delay. It is also held in most of the decisions that each application for condonation of delay will have to be decided within the framework as laid down by the Apex Court. The distinction between sufficient cause and good cause is explain in the case of Basawaraj (supra) wherein the Apex Court held that sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word sufficient is adequate or enough , inasmuch as may be necessary to answer the purpose intended. The word sufficient embraces no more than that which provides a platitude, which when the act done suffices to accomplish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter in hand would clearly go to show that the complaint filed under Section 200 CrPC by the Officer of the Income Tax Department for the offences punishable under Section 277 and 277A of the Income Tax Act came to be dismissed for non-appearance of the complainant and his Advocate and accordingly the order is that the respondent/accused is acquitted. 21. It is also admitted fact that while challenging the said order, a revision under Section 397 under CrPC was filed before the learned Sessions Court. 22. Mr Nankani heavily relied upon the provisions of Section 401 (4) of CrPC to buttress his submissions that where an appeal is provided but no such appeal is filed, the proceeding by way of revision shall not to entertained. 23. At this stage, it is necessary to note that revision under Section 397 of CRPC was filed before the Sessions Court wherein there is no mention of any provision as found in section 401 (4) of CrPC. Though the powers under section 397 of CrPC could be exercised by High Court as well as by the Sessions Court, such powers could be exercised only for the purpose of satisfying itself as to the correctness or illegality or propriety or for final sentence or order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option is to file an appeal under section 378 of CrPC. 30. The Applicant further discussed in the application that since objections were raised by the respondent, the special public prosecutor appearing for the Applicant intimated the Department about the objections raised and accordingly was requested to provide the copies of relevant records. It also shows that the special public prosecutor appearing for the Applicant furnished part of the copies of records to the Department on 04/01/2019 whereas the remaining copies of the records pertaining to the Court of JMFC were provided on 15/03/2019. Immediately thereafter the Standing Counsel for the Department was provided with records and was requested to draft an appeal together with an application for leave to appeal. 31. The application further disclosed that the Standing Counsel for the Department submitted the drafts by e-mail on 30/03/2019 and after due approval the present application along with the appeal and leave to appeal was filed on 01/04/2019. 32. The Applicant would then state in paragraph 5 that revision was filed before the Sessions Court with a bona fide belief and only after objection raised by the respondent, the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Public Prosecutor, the Department requested him to provide copies of relevant records. Part of the records was furnished to the Department on 04/01/2019 and the remaining record from the Court of JMFC was made available on 15/03/2019. The Standing Counsel of the Department was then provided with the records who drafted the appeal and the application within 2 weeks and forwarded it to the Department on 30/03/2019 and on the next day by obtaining approval, the present application along with appeal was filed. 35. Above explanation in paragraph Nos.2, 3 and 4 of the application would clearly reveal that first of all there was a bona fide belief that revision lies and when such a fact was objected, the Department was asked to verify it. On receiving the document, a draft for the appeal and application were prepared within a short time and then the same were presented to this Court. 36. The contention of Mr Nankani is that the averments in the application are vague and Applicant failed to explain as to who gave wrong advise. He also contended that the documents regarding the notes of the official of the Department are not produced to show the dates. He also submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al becomes barred by time because of negligence or default of one of the parties, valuable rights accrue to the others which normally are not being taken away in a routine manner and too liberalised exercise of discretionary power. (C) It is equally true that the period of limitation and object of prescribing periods is not intended to destroy rights but is founded on public policy fixing a life span for legal remedy for general welfare. (D) Length of delay per se may not be a ground for rejecting an application but if a satisfactory explanation has been furnished by the parties which can be accepted by the Court in consonance with the settled norms for exercise of such discretion. (E) The rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the plaintiff does not take dilatory tactics but seeks remedy promptly. (F) The laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizens under personal property and other laws. (G) The Courts have to adopt a justice oriented approach dictated by the upperm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor intimated the Department and thereafter the documents were collected and the draft of the appeal along with delay application were prepared. Thus there is sufficient cause disclosed by the Applicant in approaching this Court beyond the period of limitation. 41. It is a fact that the Department would not be benefited by filing the proceedings before the wrong Forum deliberately. It is admitted fact that the complaint filed by the complainant was rejected only on the ground that the Applicant along with Counsel unable to remain present. The complaint was not decided on merits. Thirdly, action was taken when the Respondent raised objections to the tenability of the revision and by corrective measure, an appeal was filed before this Court even when the revision was pending before the Sessions Court. Such revision was later on withdrawn, which again show bona fides on the part of the Applicant to prosecute the matter before the correct Forum. 42. The contention of the Respondents that from January till March, there is no explanation as to why the documents were not furnished or collected, will have to be answered on the ground that every day's delay cannot be explained. The Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation . For the purposes of this section, (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 45. A perusal of this provision would go to show that the party is entitled to seek exclusion of time of the proceeding bona fidely filed in a Court having no jurisdiction. 46. It is not the case of the Applicant that they were aware that the revision is not maintainable and that the appeal is required to be filed. The impugned order passed by the Magistrate would clearly go to show that the complaint was dismissed for non-appearance of the complainant and the Standing Counsel for the Department. Such a decision wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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