Ravi Rajwar Vs. State of Bihar

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....overbridge at khaira balihari kachi sadak where he appellant was making preparation along with other co-accused and unknown dacoits for committing dacoity and a knife is stated to have been recovered from the possession of the appellant and a country made pistol was also recovered from co-accused santu ghosh (since dead) who was also apprehended by the informant.3. the learned counsel for the appellant has submitted that he does not intend to contest this appeal on merits but only on the quantum of sentence which is excessive and severe in the facts and circumstances of this case. it has also been submitted that this appellant was remanded to custody on 8-11-85 and he remained in custody till 8-12-88 when he was bailed out in this case. it has also been submitted that again this appellant has remained in custody from 27-7-96 to 19-9-96 and this appellant has remained in custody altogether for a period of three years and three months. it has also been submitted that considering the period already undergone by the appellant in this case a lenient view may be taken in the matter and this appeal may be dismissed modifying the sentence to the extent already undergone in custody by the appellant.4. it appears from the materials on the record that the appellant had remained in custody from 8-11-85 to 8-12-88 and again from 27-7-96 to 19-9-96 i.e. the period of three years and three months. considering the period already undergone in custody by the appellant it will serve the end of justice that the sentence of the appellant is modified. in this view of the matter the appeal is dismissed with modification of the sentence already undergone by the appellant in custody.