The State Vs. Raghunath Sahu

- 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]. .....magistrate of digapahandi for an offence under sections 47(a) and 47(1) of the bihar and orissa excise act, on the sole ground that the prosecution was conducted by the very excise officer who had investigated the case. the learned sessions judge observed that section 495(4), crl. p. c. was directly contravened and that consequently the entire trial was vitiated. he, therefore, directed a retrial and observed that the prosecution should be conducted by any other officer, i.e., other than the excise officer who investigated the case.2. in view of the recent judgment of the supreme court in raja ram v. state of bihar, air 1964 sc 828 holding that an excise officer functioning under the bihar and orissa excise act of 1915 is a police officer for the purpose of section 25 of the evidence act, it may he reasonable to hold that he is also a police officer for the purpose of section 495(4), cr. p. c. hence the excise officer who investigated the excise offence should not be permitted to conduct the prosecution in court. there is thus no doubt that the provisions of section 495 (4), cr. p. c. have been contravened.3. but the question as to whether such contravention is an illegality or a mere irregularity is not free from doubt. the leading decision in favour of the view that such a trial is illegal is that of the madras high court, reported in in re sellamuthu padayachi, air 1954 mad 313 which has been followed by the andhra high court in in re dusari veerraju, air 1959 andh 29 and in some other decisions. learned standing counsel, on behalf of the state, referred to a kerala decision reported in joseph v. state of kerala, air 1961 ker 28 where it was held that the provisions of sub-section (4) of section 495, cr. p. c. were only directory and not mandatory. the learned judges referred to the observations of their lordships of the supreme court in willie (william) slaney v. state of madhya pradesh, air 1956 sc 116 and held that the madras view was not correct.4. in.....