Jasman Rai Vs Smt. Sonamaya Rai and Another

@JUDGMENTTAG-ORDER

A.M. Bhattacharjee, Ag. C.J.

1. If this revisional application to be taken up for consideration in spite of its being filed seven days beyond the date on which it should have been filed, then the only question that would arise for consideration is that when a complaint is not made by a Court, or by a public servant acting or purporting to act in the discharge of his official duties, whether failure to examine the complainant after taking of cognizance and before issuing process would vitiate the trial. First, therefore, to the question as to the maintainability of this re-visional application in spite of the delay as aforesaid.

2. Mr. Sharma, the learned Advocate for the Accused-Petitioner, has submitted that this revisional application must be held to be maintainable for two reasons. Firstly, he has urged that once this revisional application has been admitted and has now been fixed for hearing, it can no longer be thrown out on the ground of limitation and must be heard on merits. Secondly, he has urged that the Accused Petitioner has filed an application, supported by affidavit, explanining sufficiently and satisfactorily the reason for the delay of seven days, the reason being his sudden and serious illness in a remote village where he resides and as such the delay made in filing the application is to be condoned.

3. I must regret my inability to agree with the proposition propounded by Mr. Sharma that once the revisional application is admitted, it must be proceeded with and carried through judgment on merits and cannot be rejected as time-barred even though filed long beyond the due date and without any explanation for the delay and I must respectfully dissent from the three decisions of the Patna High Court, relied on by Mr. Sharma, which, no doubt, support his contention. The three Patna decisions relied on by Mr. Sharma are Lalo Mahto v. Emperor AIR 1942 Pat 150, Zainab Bibi v. Anwar Khan AIR 1946 Pat 104 and The State of Bihar Vs. Bipat Gope and Others,

4. In Lalo Mahto and Another Vs. Emperor, it was observed (at p. 152) by Verma, J., sitting singly, that "when the petition has been admitted, the question of limitation is not of much importance in a criminal revision about which no limitation has been fixed by the statute". In Zainab Bibi v. Anwar Khan AIR 1946 Pat 104, it was observed (at p. 105) by Pande, J., sitting singly, relying on Lalo Mahto''s case, that "once the petition has been admitted by the Court, it has got to be considered on its merit and the plea of limitation does not apply particularly when there is no period prescribed by the statute for such application". In The State of Bihar Vs. Bipat Gope and Others, Chaudhury, J., sitting singly, relied on Lalo Mahto''s case and Bibi Zainab''s case and observed (at p. 251) that once a criminal revision, though filed after the due date, has been admitted, "it must be taken that...the delay has been condoned" and that after it has been once admitted "it has to be decided on merit and it cannot be thrown out simply on the ground that it was filed beyond sixty days".

5. In all the three Patna decisions, it was accepted that though there was no statutory period of limitation for a criminal revisional application yet such an application was, according to the practice of the High Court, settled by judicial decisions, to be filed within sixty days. It was also accepted, as will appear from The State of Bihar Vs. Bipat Gope and Others, that the Court could "condone the delay in proper cases". Now if it is accepted that a criminal revision has to be initiated within a certain period, and cannot be entertained if initiated beyond such period unless the delay is condoned by the Court, then it is obvious that the principle of natural justice would require that the other party to the proceeding is to be heard as to whether such delay is to be condoned or not, or if already condoned without notice to him and in his absence, whether it has been properly condoned. For otherwise, it would, as observed by the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar AIR 1917 PC 179 , "deprive him of a valuable right, for it put in peril the finality of the decision in his favour, so that to preclude him from questioning its propriety would amount to a denial of justice". In that Krishnasami''s case, a time-barred appeal was admitted by an express order condoning the delay when it was presented for admission and when, after receiving notice of the appeal, the respondent appeared and urged that the appeal was time-barred, it was argued that the "admission of the appeal was final" and the Court had "no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable". This contention was repelled by the Privy Council which took notice of the fact that such admission and condonation were made in the absence of the respondent and without notice to him and observed that "it must, therefore, in common fairness be regarded as a tacit term of an order like the present that though unqualified in expression, it should be open to reconsideration at the instance of the party prejudicially affected and this view is sanctioned by the practice of the Courts in India". The dictum of the Privy Council, therefore, is that even though a time-barred action has been admitted and even though the delay in initiating the action has been condoned by an order to that effect, if such admission and condonation have been made ex parte and without notice to the other party to the action, such other party has the right to have such admission and condonation reconsidered and to urge that the action was barred by time and the condonation was unjustified.

6. This dictum of the Privy Council in Krishnasami''s case has been expressly approved by the Supreme Court in Dinabandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411 where the Supreme Court has, after referring to Krishnasami''s case with approval, observed (at 414) that u/s 5 of the Limitation Act, "an order excusing the delay is not final and is liable to be questioned by the respondent at a later stage". It is true that the Supreme Court in laying down this proposition expressly referred to Section 5 of the Limitation Act, 1908, and the Privy Council case was also a case of condonation of delay under that Section while that Section 5 of the Limitation Act, 1908, could have no manner of application to criminal revisions as no time was prescribed by the provisions of the said Act for any revisional application, civil or criminal. But the rule laid down in the aforesaid decisions is grounded on the elementary principle of natural justice enshrined in the maxim "audi alteram partem" and should have universal application to all cases of extension of time by condonation of delay, unless its application is expressly or impliedly ruled out by any relevant law. As observed by the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, "there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs", that proceedings that affect them should not continue in their absence and they should not be precluded from participating in them and that "our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle".

(Underlining mine).

7. If the principle of natural justice requires that no one should be affected unheard and decisions affecting a person should not be reached behind his back without notice to him, then I have no doubt that it would be extremely repulsive to any such concept of natural justice to hold that though a criminal revision must be filed within a certain period and cannot be entertained thereafter unless the delay is condoned by the Court for sufficient reasons, yet once such a revision is admitted, whether inadvertently or after condoning the delay, expressly or by implication, in the absence of and without notice to the respondent, the respondent on receipt of notice of the revision cannot be heard to say that the revision could not be admitted and the delay could not be condoned. As already pointed out and as also held by the Supreme Court, the principle of natural justice must always be allowed to operate on and supplement our procedural laws unless there is anything in such laws to prohibit their application and as I find nothing in the law relating to Criminal Procedure in general and criminal revisions, in particular, to prohibit the application of the abovenoted principle of natural justice, I am inclined to hold that even if a time-barred criminal revisional application is admitted, whether inadvertently or after condoning the delay and such admission or condonation are made in the absence of and without notice to the respondent, the respondent, on receipt of the notice of revision, must be allowed to urge that the revision should not have been admitted and the delay should not have been condoned. These considerations will not obviously apply where the High Court proceeds to exercise its revisional jurisdiction suo motu for which no period has been prescribed either by statute or by the practice of Courts and I should not be taken to have meant that if a I time-barred revisional application has been admitted but it is found that there is no sufficient ground for condoning the delay, the High Court cannot in an exceptional case treat it as a revision initiated suo motu even if there appears to be a flagrant failure of justice. But except in such exceptional cases, which may justify the High Court''s invoking its revisional jurisdiction on its own even in the midst of a case initiated on application, a revisional application filed after the expiry of the due period should be dismissed unless the delay is condoned in the manner as stated above after hearing the other party to the proceeding.

8. Mr. Sharma has also referred to a Division Bench decision of the Calcutta High Court in Municipal Commissioners of Raniganj Vs. Kedar Kalwar, a decision which really goes against his contention. Though the question before me was not discussed in the said decision, it appears that the respondent in that case was allowed to urge at the hearing of the revision that the application was filed long after the usual period of sixty days and was to be dismissed as there was no sufficient ground for condonation of the delay. It also appears that the learned Judges of the Division Bench dismissed the revision application on the ground of delay and did not hold that once the application was admitted, it was to be decided on merits and could not be thrown out on the ground of being filed after the expiry of the due date. I must, therefore, allow the learned Public Prosecutor to urge that the delay in filing the application could not and cannot be condoned.

9. By a Notification No. 3112-80/AC dated 6th May, 1950, the period of limitation for filing Appeals, Reviews and Second Reviews in Sikkim has been fixed as two months from the date of delivery of the judgment. In Sikkim there is no period of limitation fixed for filing criminal revisional applications, as was the position in the other States in India under the Limitation Act of 1908, which has now been repealed and replaced by the Limitation Act of 1963. It may be noted that neither the Act of 1908 was nor the Act of 1963 is extended to or adopted in Sikkim., By the Limitation Act of 1963, under Article 131 thereof, a period of ninety days has now been fixed for application to any Court for the exercise of its powers of revision under the Codes of Civil and Criminal Procedure, but, as already noted, no such period was fixed under the Limitation Act of 1908. But even then, it became the usual practice of several High Courts not to entertain criminal revisional applications made after the period fixed for filing appeals including the time taken for obtaining the copy of judgment and also the time, if any, occupied in prosecuting with due diligence any application to the Court of Session for a reference to the High Court and obtaining its decision.

10. Dealing with this question of limitation it has been observed by this Court in Kinzang Dahdul Vs. Ransul Kharga and Another, at as hereunder:

So far as this High Court is concerned there is, as yet, no rule of practice that Criminal Revisions, which are filed after the expiry of the period allowed for appeals, are to be rejected simply on the ground of delay or laches. The admission or non-admission of applications for revision is entirely discretionary and we do not think that it is necessary for us to prescribe any hard and fast rule for the purpose. We may, however, observe that where the law prescribes a period of limitation for any action, a party may come to the Court at the last moment before the expiry of the period allowed under the law and need not be diligent or show his diligence during the period so allowed or prescribed- But where the law allows an action but does not prescribe any period for initiating such action, a party must initiate such action with all due diligence and reasonable promptitude. It is, therefore, trite to say that a re-visional application is to be filed within a reasonable period and ordinarily the period allowed for filing appeals may be regarded as the standard for reasonable time within which applications for revision should ordinarily be filed. In our opinion, when an application for revision has been made after the expiry of the period allowed for an appeal, the Court should ask the applicant to give reasons for and to explain the delay and not to entertain the revisional application if the reasons and explanations are not found to be satisfactory or sufficient". The decision in Kinzang Dahdul''s case has also been followed by this Court in another case in O.P. Singhi and Others Vs. State of Sikkim and Another,

11. The reason put forward by the petitioner for explaining the delay is that the petitioner seriously fell and remained ill in his remote village from 4-3-1979 to 11-3-1979 and could contact his lawyer with difficulty only on 11-3-1979 and could file this application on the next day on 12-3-1979. It is not disputed that the impugned order having been passed on 9-11-1978 and this Court having remained closed for the long Winter Vacation from 110-12-1978 to 4-3-1979 and having reopened on 5-3-1979, the application was to be filed on 5-3-1979, while it has in fact been filed on 12-3-1979. The learned Public Prosecutor, Mr. Deb, has contended that though there is some explanation for the period from 4-3-1979 to 11-3-1979, there is absolutely nothing to indicate that the petitioner was diligent throughout the period before the Court closed for the Winter Vacation on 10-12-1978 and there being nothing to show as to what prevented the petitioner from filing the petition before the Court closed for the Winter Vacation, the petitioner has not been able to show his diligence during the relevant period to justify the condonation of the delay. But as already held by this Court in Kinzang Dahdul Vs. Ransul Kharga and Another, where a period is fixed for the initiation of any action, a party may come to the Court at the last moment before the expiry of the period allowed by law and if he fails to do so, he is to give good reasons for and satisfactorily explain the period of delay but need not have been diligent or show his diligence during the whole of the period so allowed or prescribed. As the Supreme Court has also observed in Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., , consideration of the question of condonation of delay "cannot justify an enquiry as to why the party was sitting idle during all the time available to it". That being so, the delay in this case can be condoned if the petitioner has given sufficient reasons for the actual period of delay for seven days and there need not be any enquiry as to the conduct of the petitioner during the entire period which was available to him under the law. The State has not controverted the assertion made by the petitioner in his application and affidavit that he was lying seriously ill in his remote village from 4-3-1979" to 11-3-1979 and that such illness prevented him from filing the application on any day earlier than 12-3-1979, that is, the day on which the application was filed in this Court. Considering all the facts and circumstances including the fact that the petitioner is an illiterate village agriculturist residing in a distant village, I hold that the petitioner has given satisfactory explanations to show that he was prevented by sufficient cause from filing this application within the period allowed '' by law and I, therefore, condone the delay.

12. As stated at the outset, if this application is held to be maintainable in spite of its being filed seven days beyond the due date, the only question that would arise for my consideration would be whether non-examination of the complainant after taking of cognisance and before issuance of process has vitiated the trial. There is a strong divergence of opinion among the different High Courts on this point and even the same High Court has spoken with different voice on different occasions. There are in fact two lines of decisions, one laying down that the examination of the complainant before issuing process is not a mere formality and the failure thereof is fatal and renders subsequent proceedings invalid and the other line laying down that the failure to examine the complainant before issuing process is merely an irregularity and does not vitiate the trial unless there has been prejudice caused to the accused and consequential failure of justice. The large body of the case-laws clustering round this question has been collected by Raraasami, J., (as his Lordship then was) in re In Re: T. Subramania Achari, and I have generally and with respect agreed with the view of his Lordship (at 135) that "what has to be considered in each case is whether the illegality or irregularity complained of affected the competency of the Court or whether it has occasioned or must be taken to have occasional a failure of justice",

13. There can be no doubt that the failure to examine a complainant before issue of process, when the complaint is not made by a Court or by a public servant acting or purporting to act in the discharge of his official duties, is a clear and palpable breach of the express provision of Section 200 Cr. P. C. 1898, I have also no doubt that if such a breach is brought to the notice of the superior Court immediately or at an earlier stage, the superior Court should quash the issuance of process and may in proper cases direct the Magistrate to start afresh after examining the complainant. The decision of the Tripura Judicial Commissioner''s Court in Nalini Kumar Dey v. State AIR 1953 Tri 4, relied on by the learned Public Prosecutor in support of his contention that the omission to examine the complainant by itself shall not invalidate conviction, has also held, and, if I may say so with respect, rightly, that if such an objection is taken at an early stage, action should be taken to set right the defect and to proceed with the case after the examination of the complainant. But the question here is when such a breach is followed by a full-fledged trial in which the parties participated without objection or protest, whether such a breach can still then be regarded to be of such magnitude as to cut at the root of the trial and to make it no trial at all or is of lesser or much lesser magnitude. If it is the former, the breach is fatal and beyond cure; and if it is latter, the breach is curable provided there is no failure of justice.

14. I have tried to go through all the case-laws on the point referred to by Ramaswami, J., (as his Lordship then was) in re In Re: T. Subramania Achari, and also other reported decisions that are available and I may point out with respect that the decisions holding that the failure to examine the complainant before issuing process is fatal enough to invalidate all subsequent proceedings have exaggerated and unnecessarily magnified the importance and effect of such examination.

15. The framers of the Cr. P. C. 1898, realised very well that "breach of one or more of the very comprehensive provisions of the Code", (to borrow the expression from the Privy Council decision in Pulukuri Kotayya v. Emperor AIR 1947 PC 67 is usual, though may be undesirable, and took care to provide in details in Chapter XLV of the Code as to where and under what circumstances such breach is to be regarded as fatal or to have some material effect. The Law Commission in its 41st Report (Vol. I, page 350) has observed that "the Code recognises the principle that it is not every deviation from, or neglect of, procedural formalities and technicalities that would vitiate the proceedings of a Court" and that though "broadly speaking, only the irregularities that have caused substantial prejudice to the accused will render the proceedings invalid, while minor or inconsequential errors or omissions are considered curable", yet there are certain provisions of the Code which are considered so vital that their disregard must vitiate a fair and proper trial, and, therefore, destroy the validity of the proceedings. The various provisions of Chapter XLV of the Code, headed as "Of Irregular Proceedings" and dealing with various types of irregularities in criminal proceedings, may be classified under three broad categories:

(a) certain irregularities which do not vitiate proceedings - prejudice or no prejudice - and these are listed in Section 529;

(b) certain irregularities which at once and without more vitiate the proceedings - prejudice or no prejudice - and these are listed in Section 530;

(c) certain irregularities which do not vitiate proceedings - unless the error or the infraction of or the deviation from the law has caused prejudice to the accused or has occasioned failure of justice;

these are dealt with in the remaining Sections of Chapter XLV, being Sections 531, 532, 533, 535, 536, which deal with some specified types of irregularities and Section 537, which is the general and residuary provision regarding irregularities in complaints, summonses, warrants, orders, judgments and other proceedings.

16. Apart from the three categories noted above there is another category of irregularities which relate to infractions of those provisions of the Code which give the Courts jurisdiction to entertain proceeding and which regulate their competence. For example, as held by the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, Section 193 and Sections 195 to 199 of the Code of 1898, requiring complaint or sanction, etc. by proper person or authority, really "regulate the competence of the Court and bar its jurisdiction in certain cases except in compliance therewith". The infractions of these provisions, are, to use the words of the Supreme Court in Willie (William) Slaney Vs. The State of Madhya Pradesh, , "defects that strike at the very root of jurisdiction" and "stand on a separate footing and the proceedings taken in disregard or disobedience would be illegal".

17. The net result, therefore, is that unless the breach or irregularity complained of comes within those enlisted in Section 530, or amounts to be a breach of a provision regulating the jurisdiction and competency of the Courts and thus strikes at the very root of jurisdiction, the breach or irregularity shall not invalidate any proceeding unless it has caused prejudice to the parties and or has occasioned a failure of justice.

18. The failure to examine a complainant before issuing a process is not obviously an irregularity mentioned in Section 530 of the Code. Nor can the said provision providing for such examination before issuance of process be regarded to be one regulating the jurisdiction and competency of the Court to entertain a proceeding. Such a failure, therefore, is a breach which can be regarded to have affected the validity of the subsequent proceedings only if the accused can be said to have been prejudiced thereby and/or there has been a failure of justice as a result thereof. If no prejudice or no failure of justice, such breach by itself is not of any material effect and is cured by the comprehensive curative antidote provided in Section 537. Slightly to alter the language of the Privy Council in Pulukuri Kotayya v. Emperor AIR 1947 PC 67 at Pp. 69-70, approved by the Supreme Court in Willie (William) Slaney Vs. The State of Madhya Pradesh, and in Payare Lal Vs. State of Punjab, , it will be a case where the trial has been conducted substantially in the manner prescribed by the Code, but some irregularities have occurred in the course of such conduct and such irregularities can be cured u/s 537 and nonetheless so because the irregularity involves, as most nearly be always the case, the breach of one or more of the very comprehensive provisions of the Code.

19. In this case it is admitted and it is also apparent from the record that though the complainant was not examined before issuance of process, he was examined as a witness in the case and full opportunity was given to the accused to cross-examine the complainant both before and after charge. In that view of the matter, I fail to understand what prejudice or injustice has been caused to the accused because of the Magistrate omitting to examine the complainant when he took congnizance of the offence and before he issued process. I may mention here that in the Patna Full Bench case in Emperor Vs. Lachman Singh, and the Calcutta Division Bench case in Anil Krista Das Vs. Badam Santra, both of which held that non-examination of the complainant before issuing process against the accused is an irregularity which does not vitiate the trial in the absence of prejudice or injustice to the accused, further held that after such a complainant has been examined in the case as a witness in the presence of the accused with due opportunity for cross-examination, the accused cannot be heard to complain about any prejudice or injustice on the ground that the complainant was not examined before the issue of the process. I should also note that the aforesaid Calcutta Division Bench case has now been approved by a Special Bench of the Calcutta High Court in Tara Dutta v. State of West Bengal (1975) 79 CWN 996 . Agreeing respectfully with the aforesaid Patna and Calcutta decisions, I also take note of the fact that no grievance was made by the accused at the trial Court or at the first Appellate Court about the non-examination of the complainant before issuance of process. In view of the provisions contained in the Explanation to Section 537, it is now settled that the failure to raise such an objection at either stage goes to militate against the contention that prejudice or injustice has been caused. Reference in this connection may be made to the decision of the Supreme Court in K.C. Mathew and Others Vs. The State of Travancore-cochin, where it has been observed (at p. 244) that "the fact that the objection was not taken at an earlier stage, if it could and should have been taken, is a material circumstance that will necessarily weigh heavily against the accused particularly when he has been represented by Counsel throughout" and it may be noted that the accused-petitioner in this case was also represented by lawyer in the Court below.

20. In the result, the revisional application fails and is dismissed.