JASMAN RAI Vs. SONAMAYA RAI

JUDGEMENT

(1.) WHERE in spite of the non -examination of the complainant before issuance of the process he was examined as a witness in the case and full opportunity was given to the accused to cross -examine the complainant before and after the charge, it cannot be said that prejudice or injustice has been caused to the accused. At any rate the failure to raise such an objeim "audi alteram partem" and should have universal application to all cases of extension of time by condonation of delay, unless its application is expressly or impliedly ruled out by any relevant law. As observed by the Supreme Court in Sangram Singh v. Election Tribunal (AIR 1955 SC 425 at p. 429) "there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs", that proceedings that affect them should not continue in their absence and they should not be precluded from participating in them and that "our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle". (Underlining mine).

(2.) IF the principle of natural justice requires that no one should be affected unheard and decisions affecting a person should not be reached behind his back without notice to him, then I have no doubt that it would be extremely repulsive to any such concept of natural justice to hold that though a criminal revision must be filed within a certain period and cannot be entertained thereafter unless the delay is condoned by the Court for sufficient reasons, yet once such a revision is admitted, whether inadvertently or after condoning the delay, expressly or by implication, in the absence of and without notice to the respondent, the respondent on receipt of notice of the revision cannot be heard to say that the revision could not be admitted and the delay could not be condoned. As already pointed out and as also held by the Supreme Court, the principle of natural justice must always be allowed to operate on and supplement our procedural laws unless there is anything in such laws to prohibit their application and as I find nothing in the law relating to Criminal Procedure in general and criminal revisions, in particular, to prohibit the application of the abovenoted principle of natural justice, I am inclined to hold that even if a time -barred criminal revisional application is admitted, whether inadvertently or after condoning the delay and such admission or condonation are made in the absence of and without notice to the respondent, the respondent, on receipt of the notice of revision, must be allowed to urge that the revision should not have been admitted and the delay should not have been condoned. These considerations will not obviously apply where the High Court proceeds to exercise its revisional jurisdiction suo motu for which no period has been prescribed either by statute or by the practice of Courts and I should not be taken to have meant that if a time -barred revisional application has been admitted but it is found that there is no sufficient ground for condoning the delay, the High Court cannot in an exceptional case treat it as a revision initiated suo motu even if there appears to be a flagrant failure of justice. But except in such exceptional cases, which may justify the High Court's invoking its revisional jurisdiction on its own even in the midst of a case initiated on application, a revisional application filed after the expiry of the due period should be dismissed unless the delay is condoned in the manner as stated above after hearing the other party to the proceeding.

(3.) MR . Sharma has also referred to a Division Bench decision of the Calcutta High Court in Municipal Commissioners, Raniganj v. Kedar Kalwar (AIR 1954 Calcutta 27), a decision which really goes against his contention. Though the question before me was not discussed in the said decision, it appears that the respondent in that case was allowed to urge at the hearing of the revision that the application was filed long after the usual period of sixty days and was to be dismissed as there was no sufficient ground for condonation of the delay. It also appears that the learned Judges of the Division Bench dismissed the revision application on the ground of delay and did not hold that once the application was admitted, it was to be decided or merits and could not be thrown out or the ground of being filed after the expiry of the due date. I must, therefore allow the learned Public Prosecutor to urge that the delay in filing the application could not and cannot be condoned.