P SENGUPTA Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) More than seven decades ago, Sir Lawrence Jenkins, speaking for the Judicial Committee in Krishnasami v. Ramaswami, AIR 1917 PC 179, observed that even when a proceeding is admitted by the court beyond the period prescribed after an ex parte order extending the period and condoning the delay without any notice to the opposite party, according to the practice then prevalent in the courts in India, it was to be regarded to be a tacit term of such an order, however unqualified in expression, that it would be open to reconsideration at any later stage at the instance of the party prejudically affected thereby. The Privy Council, however, deprecated this practice as "manifestly open to grave objection" and as leading to "a needless expenditure of money and an unprofitable waste of time", "creating elements of considerable embarrassment when the court finally comes to decide on the question of delay" finally. It may be noted that the decision in Krishnamsami, AIR 1917 PC 179, has been referred to with approval by the Supreme Court in Dinabandhu Saha v. Jadwnoni Mangaraj, AIR 1954 SC 411.

(2.) If we may add, with respect that such a practice is also violative of the fundamental priniciples of natural justice according to which, as pointed out by Vivian Bose J. in the decision of the Supreme Court in Sangram Singh v. Election Tribunal, no proceeding affecting the life, liberty or the property of a person must be allowed to be held behind his back without giving him an opportunity of participating therein. Though the Privy Council in Krishnasami, AIR 1917 PC 179, and the Supreme Court in Sangram Singh, were dealing with matters in the civil jurisdiction, the principle enunciated therein must a fortiori apply to criminal prosecution, where not only the resultant conviction but even its continuation puts the personal liberty of the person proceeded against in some peril. In all such cases, therefore, the party sought to be proceeded against must be allowed to participate at all stages of the proceeding, even if the relevant law does not expressjy provide therefor, unless such participation is ruled out by an express provision or irresistible implication. That is the mandate of the rules of natural justice on which our laws of procedure are and must be deemed to be grounded. That is the message in Sangram Singh, where it has been ruled that these principles must be allowed to supplement all our procedural laws, wherever possible. The much later decision in A K. Kraipak, has also reiterated that principle with this rider that these principles, which must supplement our procedural laws, cannot, however, supplant them.

(3.) A criminal prosecution may, and very often does, affect the liberties of the person prosecuted, not only when it ends in conviction, but even during the trial by putting the accused under the fetters of a bond to ensure his attendance. The person sought to be prosecuted, therefore, must be allowed to participate in that part of the criminal proceeding where the question of allowing a time-barred prosecution after condonation of the delay would be considered. The Division Bench decision of this court in Asiatic Oxygen v. Registrar of Companies [1978] 2 Cal HCN 412 appears to be a clear authority for this view where a number of decisions of the other High Courts have been referred to with approval. The Division Bench has placed strong reliance on the observations made in Bharat Hybrid Seeds v. State [1978] Crl LJ 61 to the effect that when the court extends that time, it means that it is interfering with the rights of the accused which have vested in him by virtue of the expiry of the period of "limitation" and, "therefore, even though there is no rule of law requiring the court to issue a notice to the proposed accused and to give him an opportunity for meeting the case of the complainant in regard to the extension of time, the interest of justice and the principles of natural justice require that the condonation of the delay and extension of time can be done only after giving reasonable opportunity to the proposed accused" and that "it would be violating the very principles of natural justice and, in fact, the very spirit of administration of justice, if a party is prosecuted in a court of law after the period prescribed for the launching of a prosecution is over and without giving him an opportunity to explain his case as to why the delay should not be condoned". The Division Bench in Asiatic Oxygen [1978] 2 Cal HCN 412, accordingly, quashed the ex parte order passed by the Magistrate in that case extending the time and condoning the delay and the order of taking cognisance on such extension and condonation. The Division Bench, however, ruled that the trial Magistrate would be at liberty to issue notice to the accused named in the petition of complaint and decide the question of extension/condonation after hearing the proposed accused on that score and to pass appropriate orders.