NATHU RAMJI TELANGA Vs. JAGANNATH HIRALAL MISHRA

JUDGEMENT

(1.) THIS is an application for revision by a private complainant who wants this Court to set aside the acquittal of the 18 non-applicants (accused) under Sections 447, 147, 149 and 325, I.P.C, and to remand the case for a fresh trial. A preliminary objection was taken on behalf of the non-applicants that the application was not preferred within the time allowed by rule of this High Court, viz., 60 days plus the period required for copying (nine days in this instance). Actually the non-applicants were acquitted on 14th June 1939, and the present revision application was filed on 31st August 1939 and was therefore late by 38 days. After this objection was raised the applicant put in an application for condonation of delay. He explains that he had on 14th June 1939 moved the District Magistrate to file an appeal against the acquittal of the non-applicants and the order of the District Magistrate was passed on 27th July 1939. He claims that these 43 days should be excluded according to the spirit of Section 14, Limitation Act,

(2.) I accept what is said in In the matter of Khetra Mohan Girl (1917) 4 AIR Cal 849 that the rule of 60 days is not an inflexible one and might be departed from in exceptional circumstances. In Gokaran v. Emperor (1932) 19 AIR Oudh 242 it was said that if the reasons given by the applicant for the delay are not sufficient the Court can dismiss the application. In Muthu Chettiar v. Narayanan Chettiar (1928) 15 AIR Mad 528 it was held that the petitioner was not guilty of any laches or negligence as he was throughout the period engaged in prosecuting or defending the proceedings which had for their object the very thing for which he had then filed that petition. There is however nothing in the practice or rules of this High Court which might lead the applicant to think that the time taken in proceedings before the District Magistrate could be added to the 60 days allowed by rule. For one thing, the District Magistrate was being moved to file an appeal while the present application is not an appeal but a revision. The proceedings were therefore distinct although the object was the same. In Kelu Patra v. Iswar Parida (1929) 16 AIR Pat 404 it was even held that the period of 60 days allowed for applying to the High Court in its criminal revisional jurisdiction covered also proceedings before a Sessions Judge under Section 438, Criminal P.C. In Criminal Revn. No. 87 of 1938 I had held that the proper procedure in such a case was for a complainant to file an application in revision before the High Court within time, and without waiting for a decision of his application to the District Magistrate to take steps for an appeal. I still think that that practice should be followed. Sixty days is quite a liberal allowance without further extension, and it is very desirable that if there is to be a retrial, it should take place as soon as possible.