KASHIRAM WAMAN THOTAM Vs. SONU GANU THOTAM

JUDGEMENT

(1.) Some interesting questions of law have arises in this case though apparently the case itself is of little consequence. The petitioner was prosecuted in the Court of the Judicial Magistrate, First Class at Devgad in Criminal Case No. 46 of 1976 respondent No. 1 (hereinafter referred to as "the complainant") for offence punishable under sections 504, 506 and 509 of the Indian Penal Code. It has been mentioned that charge under section 506 was under the second part of that section and the case itself was tried as a warrant case. The learned trial Magistrate by his judgment and order dated 31st December, 1976 discharged the accused. Against this order of discharge, the complainant went in revision and the learned Sessions Judge of Ratnagiri heard his revision application, being Criminal Revision Application No. 7 of 1977, and allowed the same by his judgment and order dated 20th May, 1977. It must be mentioned that before the learned Sessions Judge both the parties were represented by Advocates who were seen to be present from the Rojnama of the appeal Court on the date on which the judgment was pronounced by the learned Sessions Judge.

(2.) The petitioner filed the present revision application on 14th November, 1977 and the application was circulated for urgent admission which took place on 17th November, 1977. On that day, Shimpi, J. issued rule and stayed further proceedings in the trial Court. When the revision application came up for hearing before me, Mr. Pandit, the learned Advocate appearing for the complainant took objection to its maintainability by pointing out that it was hopelessly barred by time and if due to inadvertence or otherwise, the delay in the filing of the criminal revision application has been condoned, that order is liable to be reconsidered at the time of final hearing. In support of this contention, Mr. Pandit relied upon (State v. Yeshwant Parashram Sawant) 79 Bom.L.R. 693. Wherein a Division Bench of this Court has pointed out that it is settled law that when a delay in filing is condoned ex parte that order is liable to be reviewed at the instance of the respondent who can appear at the hearing and contend, notwithstanding the order, that the appeal was barred by time. This judgment in fact follows the Privy Council judgment in (Krishnaswami Pandikondar v. Ramswami Chettiar)20 Bom.L.R. 541 and (Sunderbai v. Collector of Belgaum) 21 Bom.L.R. 1148. Mr. Pandit is undoubtedly on strong ground when he contends that if the delay has been codoned without notice to the other side, the other side is entitled to urge event at the time of the final hearing of the appeal or application that the delay had been wrongly condoned, because there was no sufficient cause within the meaning of section 5 of the Limitation Act.

(3.) There are, apart from the decision referred to above several decisions which support the contention of Mr. Pandit. Indeed in one case, namely (Municipal Councillors of Puri Municipality v. Madhusundhan Das Mahapatra) A.I.R. 1961 Orissa 133, it was held that an ex parte order condoning the delay in the appeal in the lower Court is subject to reconsideration and is liable to be disturbed even in second appeal in the High Court. Despite the protestation of Mr. Adik, appearing for the petitioner, who contends that in the instant case delay has been condoned twice and, therefore, the revision application must be heard on merits. I must uphold the contentions of Mr. Pandit and proceed to see whether there was sufficient cause for the petitioner for not preferring the revision application with the period prescribed by law. Under Article 131 of the Schedule to the Limitation Act, application to a Court for exercising the powers of revision under the Code of Criminal Procedure must be made within 90 days from the date of the order sought to be revised.