LOBZANG BHUTIA Vs. RINCHEN DORJEE

JUDGEMENT

(1.) The accused-petitioner having been convicted under section 447 and section 379 of the Indian Penal Code in two criminal cases instituted on complaint, moved the Court of Session in revision under section. 435, Code of Criminal Procedure and the learned Sessions Judge has reported the cases to this Court under section 438 of the Code with his recommendation that the impugned orders of conviction passed therein be set aside. Having heard the learned counsel for the parties and the learned Advocate-General for the State. We have no doubt that we must accept the two revisions and set aside the impugned orders of conviction and sentence.

(2.) The learned Advocate-General appearing for the State has, however, contended that the revisional applications before the Court of Session were beyond time and, therefore, the learned Sessions Judge was wrong in reporting the cases to this Court in exercise of his revisional jurisdiction on such time-barred applications. The Limitation Act of 1963 having been extended to this State with effect from 1.9.1984 only and the revisional applications before the Sessions Judge, resulting in these proceedings before this Court, having been preferred on 11.5.1984, the revisions can not in view of section 31 of the Limitation Act, and even without it, be governed by the provisions of the said Act. The Sikkim Law of Limitation, like the law in the rest of India prior to the Limitation Act of 1963, has not prescribed any period of limitation for civil or criminal revision. But in tune with the law laid down by the other High Courts in the rest of India under the earlier law, this High Court also has ruled rejection of criminal revision instituted after the period prescribed for criminal appeals, including the time taken for obtaining the copy of the impugned order, at will appear from the decisions in Kinzang Dahdu/ v. Ransu/ Kharga1, O.P. Singhi v. State of Sikkim2 and Jasman Rai v. Sonamaya Rai3. The impugned orders were passed on 2.3.1984 and from the certified copies thereof filed it appears that only one day could be excluded from the time taken in obtaining the same as these were made really and delivered on the very date of the application on 7.5.1984. The period prescribed for filing criminal appeals under the Sikkim Law of Limitation being 60 days, the revisions ought to have been filed on or before 2.5.1984, while these were filed on 11.5.1984 and therefore, there was 9 days delay excluding one day taken for obtaining the copies. From his order dated 11.5.1984 admitting the revisions, it appears that the learned Sessions Judge, while adverting to this aspect, observed that the point would be decided at the time of the hearing of the petition on merits. But as would appear from the records and the impugned orders, the learned Judge did not consider this aspect at any point of time.

(3.) The learned Advocate-General has contended that the learned Sessions Judge acted illegally not only in not deciding the question of limitation at all, but also in deferring the decision to the stage of final hearing. While it may be desirable that the question of limitation, which might shut out a proceeding in limine, should be decided as early as possible, it should be noted the even if the Sessions Judge decided the question of limitation at the admission stage and admitted the revisions after deciding the question in favour of the petitioner, whether by condoning the delay or otherwise, such admission and condonation would have been open to challenge at the instance of the other party aggrieved thereby and would have required reconsideration at a later stage. Such a procedure of initial admission subject to limitation and subsequent consideration of the question of limitation has been referred to by the Privy Council in Krishnasami v. Ramasami4 as sanctioned by the practice of the Courts in India5 and, it may be noted, this Privy Council decision has been referred to with approval by the Supreme Court in Dinabandhu v. Jadumani6. But there should be no doubt that the learned Judge was obviously wrong in not considering the question of limitation at all at any stage, even Though he expressly left the question for decision at the time of final hearing.