SUBHASH VASANTLAL TANDON Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) By the application under Section 482 of the Code of Criminal Procedure, the applicant has prayed for quashing and setting aside the order 22nd July, 2011 passed by learned Additional Sessions judge - 15, Nagpur in Criminal Revision Application No. 393 of 2011 so also order dated 25/5/2011, passed by learned judicial Magistrate First Class, Nagpur in Regular Criminal Case No. 235 of 2008.

(3.) The facts stated are as under: On or about 21/12/1989, one Chindhuji Akatwar lodged F.I.R. against applicants and one Vasantlal Tondon giving rise to Criminal Case No.192 of 1990, under Section 324 of the Indian Penal Code. The charge-sheet in the case was filed on on 30/04/1990. The trial Court had framed charge on 19/1/1996, against the accused No.1 During the course of trial, on 17/09/1996, prosecution moved an application below Exh. 15 to summon additional accused Nos.2 and 3 namely the applicants herein, on the ground that their names appeared in the F.I.R. and they were required to be added in the proceedings. Accordingly, accused Nos. 2 and 3 were added on 17/09/1996. Learned trial Magistrate, on 05/09/1999, passed an order for de novo trial at the stage of recording statement under Section 313 of the Code of Criminal Procedure. The applicants had assailed the order passed by learned trial Magistrate by filing Criminal Revision No. 526 of 1999 before learned 4th Additional Sessions judge, Nagpur, who was pleased to set aside the order dated 05/06/ 1999. The learned Additional Sessions judge, Nagpur set aside the said order holding it to be barred by limitation and remanded the matter back to the Magistrate to consider the point of limitation and also to consider that there was any sufficient material to condone the delay under Section 473 of the Code of Criminal Procedure. The accused No.2 namely; Vasantlal expired on 28/3/2007. Prosecution, on 30/03/ 2011, moved an application under Section 473 of the Code of Criminal Procedure for condonation of delay. Learned judicial Magistrate First Class, Mouda, on 25/05/2011, proceeded to allow the said application by observing that the names of accused are not added in charge sheet due to mistake on the part of Investigating Officer and the accused cannot therefore take advantage of that and further in spite of order passed by Sessions judge, the accused have participated in trial. On 09/06/2011, applicants preferred Criminal Revision No. 393 of 2011 before Sessions Court, Nagpur contending that there was no sufficient grounds for condoning the delay and also contended that punishment for offence under Section 324 of IPC is three years and limitation for taking cognizance is also upto three years. Learned Sessions judge rejected the said application on 22/07/2011, on the ground that under Section 319(4)(b) of the Code of Criminal Procedure, there is no need to file an application for condonation of delay.