IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 151 of 2005(D) ----------------------------- ST.2354/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER(S): COMPLAINANT: --------------------------------- ASSISTANT CONTROLLER, LEGAL METROLOGY, FLYING SQUAD, KANNUR, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN. RESPONDENT(S): ACCUSED: ----------------------- 1. HYMAVATHI, M/S.INDIRA AUTO FUELS, I.O.C.DEALER, THANA, KANNUR. 2. M/S.INDIA AUTOFUELS, I.O.C.DEALER, THANA, KANNUR. ADV. SRI.N.NAGARESH FOR R1 & R2 SRI.K.BABU FOR R1 & R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON 29/09/2008 PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRL.Rev.P. NO. 151 OF 2005 = = = = = = = = = = = = = = = Dated this the 29th day of September, 2008. O R D E R This revision is preferred against the order of the Judl. First Class Magistrate, Kannur in CMP 3274/04 in S.T.C.2354/03. The case was initiated by the Assistant Controller, Legal Metrology against the accused for violation of S.39(2)(1) of Standards of weights and Measures (Enforcement) Act 1985. When it was initiated some associations approached the High Court and obtained a stay and there was a direction to submit the file for obtaining the sanction and so there is 86 days in filing the complaint. The learned Magistrate even without ordering notice took cognizance of the case. It is also seen that he did not pass any speaking order with regard to the condonation of delay. In the challenged order the learned Magistrate held that the delay in getting sanction is not sufficient and adequate to condone the delay and further the order without notice to the accused and non-speaking order has also led to the Cr.R.P. 151 OF 2005 -:2:- prosecution of the accused and therefore he decided to drop the proceedings against the accused so as to release it. It is against that decision the State as come up in revision. It is true that when an application for condoning the delay is filed before taking cognizance notice is issued on the delay condonation application and it be heard and thereafter only proceed with the case. For the mistake of the Magistrate a party should not suffer. The order of the learned Magistrate holding that delay in getting sanction is no ground to condone the delay may not be correct in all cases. The circumstances resulting in the delay including that of obtaining sanction is a matter that has to be considered and decided by the Court. A mere statement is not sufficient. Therefore I feel that the order passed by the learned Magistrate suffers from infirmity and illegality which requires to be corrected. Therefore I set aside the order and direct the learned Magistrate to receive the case to the file, issue notice on the delay condonation application first and permit the accused to file their objections, hear the matter Cr.R.P. 151 OF 2005 -:3:- on condonation of delay and thereafter decide to proceed with the case in accordance with law, in case the delay is condoned. If delay is not condoned it is needless to say that the case has only to be dropped. Learned Magistrate shall issue notice for fixing the date of appearance of the parties and then dispose of the matter as stated above. M.N. KRISHNAN, JUDGE. ul/-