PHUSU KOIRI Vs. STATE OF ASSAM

JUDGEMENT

(1.) A lifer has challenged his conviction in this appeal preferred from jail raising a basic question. Can this Court put into his basket of rights, judicially secured to his tattered tribe, another vital and pivotal right? Indeed, the right claimed by him is vital and pivotal not only for his freedom from bondage, should this Court hold his confinement to be illegal, but for also other prisoners similarly situate.

(2.) We propose, therefore, to examine first the basic question which indeed has surfaced in this case in the form of a preliminary objection pressed by learned P. P., Assam, Mr. G. Sarma. He drew our attention to the order passed in this appeal on 15-5-82 by which the appeal was admitted "keeping the question of limitation open." This Court also ordered issue of notice on the question of limitation. Mr. Sarma submitted that the appellant has not responded to the notice and as such the appeal is not ripe for hearing. The main thrust of his contention was that unless there was an application by the appellant u/s. 5 of the Limitation Act for condoning the delay and unless this Court after hearing the State on that question had condoned the delay this appeal cannot be heard. We were not at all impressed by counsel's argument because since long before his conviction the appellant is undergoing the sentence and further curtailment, of his liberty, without hearing the case on merit, did not appear to us justified. From a perusal of the office report we found that the appeal was out of time by only 12 days. However, from the printed note (Form No. 129) dated 22-4-82 of the Superintendent, District Jail, Dibrugarh, accompanying the petition of appeal, we also found that the copy of the judgment was received in jail on 16-2-82 though the judgment in the instant case was delivered on 9-2-82 and on the same date an application for copy was filed. We may also note that the order-sheet of the Sessions Court bears an endorsement, under the order recorded on 9-2-82, by which free copy of the judgment was required to be furnished forthwith to the convict. Though this endorsement shows that the copy was delivered to the appellant on 9-2-82 we are not sure about the position. In any case whether the delay in filing the appeal was 12 days or 5 days was not, according to us, material for deciding the preliminary objection and therefore we decided to continue hearing of the appeal on merit and assured Mr. Sarma that we shall deal with the preliminary objection by reasoned order while disposing of the appeal.

(3.) What therefore is squarely in issue in deciding the preliminary objection is the object, scope and purport mainly of Ss. 3 and 5 of the Limitation Act, for short, the Act. According to S. 3, "every suit instituted, appeal preferred an application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence but this is subject to the provisions contained in Ss. 4 to 24". While, S. 5 provides that an appeal or application "may be admitted after the prescribed period if the appellant or the applicant satisfied the court that he had sufficient cause for not preferring the appeal or making the application within such period". The general object of the Act admittedly is not to extinguish a right but to bar a remedy so that stale claims are not agitated as the Act is in substance a statute of repose and fulfills that purpose. Right to personal liberty being a fundamental right it can be taken away only in accordance with the procedure prescribed by law conforming to the mandate of Art. 21. It will be futile to dispute today that such procedure must be reasonable and not arbitrary. We have no doubt that S. 3 places a duty on the Court not only to see what right is agitated or for what right the remedy is pursued in court but also to see who has pursued it. This position appears clear to us from the purport of the provisions of Ss. 4 to 24. Indeed, some provisions take notice of legal "disability" of a person while there are other provisions which take care of such situation where "exclusion of time" is allowed to override the bar of S. 9 which enjoins continuous running of time. That apart, the rigour of the duty enjoined on court u/s. 3 is toned down by S. 5 which has invested a discretion in the Court to admit for hearing any appeal or application even beyond the prescribed period in a case in which the Court is satisfied that the appellant or the applicant had "sufficient cause" to prevent him from coming to the court within time.