Chintamoni Palai Vs. State

Chintamoni Palai vs State

Type Court Judgment Court Orissa Decided Sep 08, 1950

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https://sooperkanoon.com/case/526629

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Citation: sooperkanoon.com/526629
Court: Orissa High Court
Judge: Ray, C.J.
Decided On: Sep 08, 1950
Case Number: Criminal Misc. No. 13 of 1950
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- 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 ...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) , 1898 - Sections 526

Parties & Advocates

Appellant / Petitioner

Chintamoni Palai

Advocate G.C. Das, Adv.

Respondent

State

Advocate Assistant Government Adv.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1898 - Sections 526
Reported In: AIR1952Ori167

Excerpt

.....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]. - the learned sub-divisional magistrate should realise that failure of communication on his part lands the stationary sub-magistrate in inextricable difficulty. i would..........order of stay of further proceedings in the magistrate's court should be passed. an order was passed according,, and was duty communicated to the district magistrate of ganjam, and to the sub-divisional magistrate of russelkonda for necessary action. the order was received by them on the 9th february. the next date of hearing that was fixed in the case was 13th february. by that time the learned stationary sub-magistrate was in possession of a telegram from the learned government advocate, dated 6-2-1950, intimating that the high court had been moved for transfer, of the case and that he wanted records and instructions in the matter. unfortunately, the satutary practice of sending post-copy of the telegram had not then obtained in the 'advocate general's office. the magistrate, therefore, thought that telegram, was a misleading one. the accused persons appeared before him on that date and wanted further adjournment in the case on the ground that they had already moved the high court. the learned sub-magistrate took an unusual attitude on that date. he disbelieved the telegram of the learned government advocate and the allegations in the petition of the accused persons. he re-fused adjournment and forfeited all the bonds executed by the accused persons in pursuance of the provision of section 526, criminal p.c. besides he taxed the accused persons each with a penalty of rs. 10/-, it being noted that they wore 19 in number before him.2. this action, rather, i should say, the con-duct of the learned sub-magistrate is quite sufficient to raise a reasonable apprehension in the mind of the petitioners that they (sic) are not going to get a fair trial at the hands of the stationary sub-magistrate. the magistrate further labours under the mistake, as put by the assistant government advocate, that one who does not succeed in getting an order of transfer from the high court has to forfeit the bond. this is a serious lack of knowledge on his part. it must be mentioned.....

Full Judgment

ORDER

Ray, C.J.

1. This is an application for transfer of a criminal case pending in the Court of the Stationary Sub-Magistrate, Russelkonda. The petition was filed in this Court on the 6th of February and was moved on the 7th of February, after due notice, to the Government Advocate. Mr. Dube, the then Government-Advocate, appeared and wanted time in order to get instructions for opposition. He, however, agreed that in the meantime interim order of stay of further proceedings in the Magistrate's Court should be passed. An order was passed according,, and was duty communicated to the District Magistrate of Ganjam, and to the Sub-divisional Magistrate of Russelkonda for necessary action. The order was received by them on the 9th February. The next date of hearing that was fixed in the case was 13th February. By that time the learned Stationary Sub-Magistrate was in possession of a telegram from the learned Government Advocate, dated 6-2-1950, intimating that the High Court had been moved for transfer, of the case and that he wanted records and instructions in the matter. Unfortunately, the satutary practice of sending post-copy of the telegram had not then obtained in the 'Advocate General's Office. The Magistrate, therefore, thought that telegram, was a misleading one. The accused persons appeared before him on that date and wanted further adjournment in the case on the ground that they had already moved the High Court. The learned Sub-Magistrate took an unusual attitude on that date. He disbelieved the telegram of the learned Government Advocate and the allegations in the petition of the accused persons. He re-fused adjournment and forfeited all the bonds executed by the accused persons in pursuance of the provision of Section 526, Criminal P.C. Besides he taxed the accused persons each with a penalty of Rs. 10/-, it being noted that they wore 19 in number before him.

2. This action, rather, I should say, the con-duct of the learned Sub-Magistrate is quite sufficient to raise a reasonable apprehension in the mind of the petitioners that they (sic) are not going to get a fair trial at the hands of the Stationary Sub-Magistrate. The Magistrate further labours under the mistake, as put by the Assistant Government Advocate, that one who does not succeed in getting an order of transfer from the High Court has to forfeit the bond. This is a serious lack of knowledge on his part. It must be mentioned here that the learned Magistrate concerned, and the learned Sub-divisional Magistrate are sitting within a few yards apart. I cannot understand, under what circumstances, if the order of the High Court was received by the Sub-divisional Magistrate on the 9th February, it could not be communicated immediately or even till the 13th to the Stationary Sub-Magistrate, particularly when it contained the interim order of stay of further proceedings before him. It is clear that notwithstanding an order of stay by this Court, the Stationary Sub-Magistrate proceeded with the criminal case and thereby committed contempt of Court. The learned Sub-divisional Magistrate should realise that failure of communication on his part lands the Stationary Sub-Magistrate in inextricable difficulty. Such slackness ought to bebrought to the notice of his superior. With verygreat reluctance I have to accept thatit is the Sub-divisional Magistrate whofailed to convey the order of this Court tothe Stationary Sub-Magistrate. To hold otherwisewould amount to holding that the Sub-Magistratedisobeyed this Court's order. I would for thetone being refrain from holding like that.

3. In this background it is no longer necessaryto consider the petition of the petitioners as tothe merits of the grounds for transfer. The circumstances stated above are sufficient to lead meto hold that the petitioners are entitled to anorder of transfer. I would, therefore, direct thatthis case should be transferred not only from thefile of the Stationary Sub-Magistrate but alsofrom that Sub-Division and should be tried at theHead Quarters by another Magistrate competentto try it as the District Magistrate directs. Therule is made absolute. The records should besent down to the District Magistrate. All ordersof forfeiting the bonds and fixing the penalty onthe accused persons passed on 13-2-1950, when theinterim order of stay of this Court was in force,are set aside as void and without any effect.

Same Parties Chintamoni Palai vs State Same Subject Criminal Same Judge Ray, C.J. Acts & Sections Code of Criminal Procedure (CrPC) , 1898 - Sections 526

Criminal