- 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]. orderr.n. biswal, j.1. this crlma is filed under
section 439(2) of cr.p.c. with a prayer to cancel the bail granted in favour of accused-opp. party no. 2 by the learned j.m.f.c., barbil in g.r. case no. 124 of 2004 on 25.3.2004. opp.party no. 2 and some others have been arrayed as accused in the aforesaid g.r. case for the offence under sections 379/323/34 i.p.c.2. on a petition for bail filed
on behalf of the accused-opp.party no. 2 the j.m.f.c., barbil released him on bail on 25.3.2004 holding that the offences are bailable in nature while in fact section 379 i.p.c. is a non-bailable one. hence the petition for cancellation of the bail order.3. none appeared
on behalf of the accused-opp.party no. 2 when the matter was taken up.4. it is submitted by learned counsel for the applicant that even though the offence under section 379 i.p.c. is non-bailable in nature, the court below carelessly held it to be a
bailable offence and accordingly released the accused-opp.party no. 2 on bail.5. the j.m.f.c., barbil allowed the bai
l petition filed by the accused-opp.party no. 2 on an erroneous impression that the offence under section 379 i.p.c. is bailable in nature. but, in fact it is a non-bailable one.6. accordingly, the bail order dated 25.3.2004 passed by the j.m.f.c., barbil in g.r. case no. 124 of 2004 in favour of opp.party no. 2 is hereby cancelled.7. accused-opp.party no. 2 shall surrender before the court of j.m.f.c., barbil within one month hence, failing which the court concerned shall take appropriate steps to secure his attendance. after his surrender or production before the court below, if he applies for fresh bail, the same shall be considered on its own merit
in accordance with law.8. the crlma is disposed of accordingly.