State Vs. Bauri Bissoi and ors.

State vs Bauri Bissoi and ors.

Disposition Appeal allowed Court Orissa Decided Nov 19, 1968

~3 min read

https://sooperkanoon.com/case/529825

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/529825
Court: Orissa High Court
Judge: G.K. Misra and ;S. Acharya, JJ.
Decided On: Nov 19, 1968
Case Number: Govt. Appeal No. 9 of 1965
Subject: Criminal
Disposition: Appeal allowed

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
Outcome / disposition: Appeal allowed
Acts & sections: Code of Criminal Procedure (CrPC) , 1898 - Sections 337(2) and 337(2A)

Parties & Advocates

Appellant / Petitioner

State

Advocate Standing Counsel

Respondent

Bauri Bissoi and ors.

Advocate S. Mohanty, ;R. Mohanty and ;D. Subudhi, Advs.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1898 - Sections 337(2) and 337(2A)
Cases Referred: Public Prosecutor v. K. S. Rajanna. There
Reported In: AIR1969Ori286; 35(1969)CLT248; 1969CriLJ1419

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]. - sub-section (2-a). in every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the magistrate before whom the proceedings..........24 in number, were charged under sections 148, 454, 427, 380 and 395/149, i. p. c. for unlawfully entering upon the paddy field of one abdul samad and removing the crops and also for having committed dacoity in his house. in view of the fact that the case is not being finally disposed of, it is not necessary to state the details of the prosecution case and the defence. after trial, all the respondents were acquitted and the state has filed this appeal against the order of acquittal,2. in course of hearing, it came to our notice that biswanath sahu, (p. w. 13)was an approver. he had not been examined in the committing court. a question was raised whether the commitment and the trial are vitiated on account of his non-examination.3. section 337, criminal p. c., so far as is relevant, runs thus:--'sub-section (2). every person accepting a tender under this section shall be examined as a witness in the court of the magistrate taking cognizance of the offence and in the subsequent trial, if any.sub-section (2-a). in every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the court of session or high court, as the case may be'.the effect of these two sub-sections came up for consideration in air 1962 guj 283 (fb), kalu khoda v. state. their lordships held that the committal proceedings and the order would be illegal if, in breach of sub-section (2) of section 337, the committing magistrate commits an accused to the court of sessions without the prosecution examining the person who has been tendered pardon and who has accepted the same.this decision was followed in air 1967 orissa 82, p. apparao v. state and (1966) 1 andh wr 390, public prosecutor v. k. s. rajanna. there is no dissenting voice. it is thus clear that the.....

Full Judgment

G.K. Misra, J.

1. The respondents, 24 in number, were charged under Sections 148, 454, 427, 380 and 395/149, I. P. C. for unlawfully entering upon the paddy field of one Abdul Samad and removing the crops and also for having committed dacoity in his house. In view of the fact that the case is not being finally disposed of, it is not necessary to state the details of the prosecution case and the defence. After trial, all the respondents were acquitted and the State has filed this appeal against the order of acquittal,

2. In course of hearing, it came to our notice that Biswanath Sahu, (P. W. 13)was an approver. He had not been examined in the committing Court. A question was raised whether the commitment and the trial are vitiated on account of his non-examination.

3. Section 337, Criminal P. C., so far as is relevant, runs thus:--

'Sub-section (2). Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.

Sub-section (2-A). In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be'.

The effect of these two sub-sections came up for consideration in AIR 1962 Guj 283 (FB), Kalu Khoda v. State. Their Lordships held that the committal proceedings and the order would be illegal if, in breach of Sub-section (2) of Section 337, the committing Magistrate commits an accused to the Court of sessions without the prosecution examining the person who has been tendered pardon and who has accepted the same.

This decision was followed in AIR 1967 Orissa 82, P. Apparao v. State and (1966) 1 Andh WR 390, Public Prosecutor v. K. S. Rajanna. There is no dissenting voice. It is thus clear that the commitment order dated 20-5-64 in G. R. No. 275 of 1963 is illegal and is liable to be quashed. The commitment order being illegal, the sessions trial is contrary to law and the judgment under appeal is a nullity and must be set aside. In view of this conclusion, the judgment of the learned Assistant Sessions Judge, dated 21-12-64 acquitting the respondents is set aside.

4. The next question for consideration is whether on account of the delay in not examining the approver, for which the prosecution is solely responsible, the entire prosecution would be quashed or whether the case must go back to the committing Court to proceed the committal proceedings after examination of the approver. There is no provision of law that on account of the delay this Court would quash the prosecution. In the aforesaid Gujrat case direction was given to continue the committal proceedings and to dispose of the case in accordance with law. That would be the correct view.

5. In the result, the judgment of the learned Assistant Sessions Judge is set aside and the appeal is allowed. Thecommitment order is also quashed. The case would go back to the committing Court who would proceed with the committal proceedings wherein he would examine the approver. He would then dispose of the case in accordance with law and the observations made above.

Acharya, J.

6. I agree.

Same Parties State vs Bauri Bissoi and ors. Same Subject Criminal Same Judge G.K. Misra and ;S. Acharya, JJ. Acts & Sections Code of Criminal Procedure (CrPC) , 1898 - Sections 337(2) an...

Criminal