1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Application No. 65/2009 In Criminal Revision Application No. /2009 Dr. Smt. Jaishree w/o Avinash Banait, aged 48 years, Occ. Medical Practitioner, r/o Congress Nagar, Nagpur. .. APPLICANT .. Versus .. 1. State of Maharashtra, thr. Police Station Officer, Police Station, Sitabuldi, Nagpur. 2. Kaustubh s/o Vasudeorao Buty, aged about 43 years, Occ. Business, r/o Plot No. 275, Bajaj Nagar, West High Court Road, Nagpur. 3. Omkar s/o Jaiwantrao Buty, aged about 30 years, Occ. Business. 4. Subhash Ganpatrao Buty, aged about 62 years, Occ. Business. 5. Sou. Kalyani w/o Subhashrao Buty, aged about 53 years, Occ. Household. All nos. 3 to 5 r/o Buty Bungalow, Civil Lines, Nagpur. .. NON APPLICANTS --------------------------------------------------------------------------------- Mr. J. M. Gandhi, Advocate for applicant. Mr. A. C. Dharmadhikari, Advocate for non applicant nos. 2,4 & 5. Mr. S. V. Sirpurkar, Advocate for non applicant no.3. --------------------------------------------------------------------------------- 2 CORAM:- S. S. SHINDE, J. DATED :- 1 st December, 2009 P. C. 1. This application is filed under Section 5 of the Limitation Act, 1963 for condonation of delay in preferring revision against acquittal of non applicant nos. 2 to 5 by Judicial Magistrate First Class, Court No. 2, Nagpur on 09.03.2007 in Regular Criminal Case No. 118/2001. 2. Learned counsel appearing for the applicant submitted that the delay caused in filing the revision application was under misconception and bonafide mistake by the applicant that non applicant no.1 would take care of the matter and would prefer appeal within time, the applicant has not taken any steps to impugne the judgment of acquittal passed by the trial Court and as soon as she has received knowledge of dismissal of the application for condonation of delay, she has filed the instant application for condonation of delay. It is further submitted that there is no negligence or deliberate avoidance in preferring the revision. Learned counsel 3 further invited my attention to the contents of application and submitted that the delay in filing the revision deserves to be condoned. Learned counsel invited my attention to the reported judgment of the Hon’ble Supreme Court in N. Balakrishnan ..vs.. M. Krishnamurthy 1991 (1) Civil L J 378. According to the learned counsel, length of delay in filing the application is not important but the cause shown is required to be seen. In the light of facts of the present case, the learned counsel submitted that the application deserves to be allowed. 3. Learned counsel for non applicant nos. 2 to 5 submitted that there is inordinate delay of 838 days in filing the revision and no sufficient cause has been shown in the application. Therefore, the application for condonation of delay in filing the revision may be rejected. 4. I have heard leaned counsel for the applicant as well as A.P.P. for State and other respective counsel 4 appearing for non applicant nos. 2 to 5 and also perused the contents of the application. I am of the considered view that no sufficient cause has been shown in the application for condonation of delay. 5. Para 3 of the application is necessary to be looked into to decide the present application. Para 3 reads as under:- “3. That, the delay so caused is not at all deliberate or intentional but is caused under bonafide impression that the State i.e. the non-applicant No.1 has preferred the appeal for enhancement of sentence and the appeal against acquittal and therefore, no necessity to prefer independent proceeding is there and as such the period so spent deserves to be deducted from the computation of total period of delay as per the provisions of section 14 of the Limitation Act. Even otherwise also, for the mistake of the non-applicant No.1-State, the cause of justice cannot be ignored and the impugned judgment cannot be allowed to stand which suffers from serious defects of law as demonstrated in the Memo of Revision Application.” 5 Mere perusal of the averments in the application would show that the applicant was under bonafide impression that the State, who is non applicant no.1, has preferred appeal for enhancement of sentence and the appeal against acquittal and, therefore, found no necessity to prefer independent proceeding. 6. Further perusal of the averments in the application would show that the applicant has placed reliance on the provisions of Section 14 of the Limitation Act. The said Section reads as under:- “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 is 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. 6 (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall e excluded, where such proceeding 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. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the fresh 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 exercising 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; 7 (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.” 7. On perusal of language of Section 14 it is clear that the said section could have been made applicable only in case the present applicant himself was prosecuting with due diligence some other proceeding in connection with issue involved in the revision. However, in the present case, it is not the case of the applicant that the applicant was pursuing some other remedy before some other Forum and time lost for prosecuting the proceeding with due diligence, then only said Section will have application in the instant case. It is an admitted position that the applicant did not file any proceeding and directly filed the revision. The reason which is stated in the application is that the applicant was under impression that the non applicant-State has filed appeal and has 8 taken steps to challenge the acquittal of non applicant nos. 2 to 5. Therefore, the reliance placed on Section 14 of the Limitation Act by applicant is wholly misconceived and in the facts of the case the said Section cannot be made applicable. That apart it was open for the applicant to file revision and there was no any legal impediment that the applicant cannot file independently revision though the State has challenged the acquittal by filing the appeal. Therefore, if it was open for the applicant and permissible in law to file revision application within the limitation, grounds taken in the application cannot be said to be sufficient cause so as to condone the inordinate delay of 838 days in filing revision application. There is no dispute that the length of the delay is not material but the cause shown in the application is required to be taken into consideration. However, in the instant case, there is no sufficient cause disclosed for filing the revision belatedly. 8. Here, it will not be out of place to take note of the dictum of the Hon’ble Apex Court in Ajit Singh 9 Thakur Singh and another ..vs.. State of Gujarat; AIR 1981 Supreme Court 733. In para 6 of the judgment, the Their Lordships have observed as under:- “...Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances, subsequent to the expiry of limitation which may further delay the filing of appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation....” On careful perusal of the contents of the application, in the light of the above observations of the Hon’ble Supreme Court, I find that in the case in hand, there is no sufficient cause shown for condonation of 10 delay in filing the revision and the revision is hopelessly barred by limitation. In view of the above discussion, the Criminal Application is devoid of any substance. The same is, therefore, dismissed. JUDGE kahale