SHANKAR ADAWAL Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The limited grievance of the petitioner is that inspite of accepting the contention of the petitioners that they have a right to be heard on the application under Section 473 Cr.P.C. filed by the respondent complainant seeking condonation of delay of four months, Shri P.K. Bhasin, learned ASJ vide impugned order dated 5th may, 2003 set upon to decide the said application which was beyond the revisional jurisdiction of the Court. The contention of the learned counsel for the petitioner that the matter be sent back to the learned CMM with the direction to give the petitioners an opportunity of being heard on the application under Section 473 Cr. P.C. filed by the respondent complainant regarding the condonation of delay has been fairly conceded by the learned counsel for the CBI. Even otherwise the following observations of the learned ASJ sufficiently make out a case for setting aside the impugned order and sending the parties back to the learned CMM for decision on the application under Section 473 CR.P.C. The observations are not only self-speaking but self-contradictory also. These are as under:-

(2.) In view of the aforesaid observations there was no other option left with the learned ASJ than to either set aside the order of CMM or send back to the learned CMM for hearing the parties and not to take up the matter in his own hands as a revisionary court. It is for the court empowered to take cognizance to decide such question at first instance and not for the revisionary court.

(3.) Once the learned ASJ had come to the conclusion that the petitioners had a right to be heard by the CMM on the application under Section 473 Cr. P.C. and that the CMM did not deal with the matter with the seriousness with which it should have been dealt with, it was no more open to the learned ASJ to decide the application for condonation of delay himself. More so when the learned ASJ found that the CMM in her order dated 5th April, 2002 by which she condoned the delay did not say a words as to how the complaint was time barred and simply accepting the contention of the complainant that the complaint was time barred and that the delay in the filing of the complaint was beyond the control of CBI and that the delay had been duly explained. Thus from any aspect we may examine the impugned order it is unsustainable being self-contradictory and self-defeating and, therefore, has to go.