DUKHISHYAM BENUPANI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application under Section 397 read with S. 401 and Section 482 of the Code of Criminal Procedure is directed against the order dated 9-10-96 passed by the Metropolitan Magistrate, 4th Court, Calcutta in complaint case No. C/298 of 95. The relevant facts leading to the filing of this application may be summarised as follows :-

(2.) In this connection, the petitioner has made in the revision-petition a prayer for condonation of delay in the filing of this revisional application and by way of explanation of the delay he has stated that while the period of limitation of 90 (ninety) days was to expire on January 7, 1997, he on that day filed an application before the Court below for obtaining the certified copy of the impugned order and he could obtain this certified copy as late as on 8th April, 1997. He then handed over these certified copies along with other relevant documents to his Advocate Mr. D. Chakraborty Thakur for moving this revisional application before this High Court against the impugned order but the learned Advocate advised him that such a time barred revisional application should not be admitted unless the delay of 228 days was condoned on the basis of a separate application for condonation of delay accompanying the revisional application and in the process further delay of about a month took place and ultimately he filed the revisional application on 14th May, 1997 challenging the legality and propriety of the impugned order of the learned Metropolitan Magistrate dated 9th October, 1996 passed in Case No. 298/95. The grounds on which he has challenged the order of the learned Magistrate are that the Court below ought to have deferred the date for examination of prosecution witnesses suo motu when the complainant was found absent and that the impugned order became defective and it could not be cured even applying Section 465 of the Code. His further contention is that unless the delay of 228 days in filing of this application is condoned and the revisional application is admitted, heard and decided in favour of the petitioner, it would suffer irreparable prejudice.

(3.) Two issues in the main have been raised in this hearing. First, whether the delay in filing of this application can be condoned and if not whether the application being barred by limitation and being incapable of admission is liable to be dismissed in limine. The second point is whether the revisional application if not found time barred can succeed on merits.