Mohan Ramchandra Powar Vs. State of Maharashtra - Court Judgment

Excerpt:
indian limitation act, 1963 - section 5 - delay in filing criminal appeal -- no provision to condone delay in cr. procedure code -- powers of appellate court under limitation act -- entitled to use discretion -- adverse effect on job prosperity - sufficient ground -- delay condoned.;there is no provision for condoning the delay in cr. p.c. is technically correct. bat every appellate court is entitled to exercise the discretion under section 5 of the limitation act section 5 of the limitation act irrespective of the various types of jurisdiction given to the appellate authority, has the power to condone delay in filing appeal, if the appellant gives sufficient grounds for filing the appeal belatedly. - bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. t.k. chandrashekhara das, j.1. the petitioner approaches this court by way of this writ petition for challenging the order passed by the district sessions judge, kolhapur dated 4th may, 1991 dismissing the appeal filed by the petitioner being regular appeal no. 270 of 1991, as time barred.2. the short facts in this case is that the petitioner on 4th june, 1987 was arrested under sections 4 and 5 of prevention of gambling act and produced before the judicial magistrate, first class, no. 1 kolhapur in cri. case no. 7659 of 1988. before the magistrate, the petitioner pleaded guilty. at the time of arrest, he was found to be in possession of rs. 15/-. on pleading guilty, the learned magistrate convicted the petitioner for fine of rs. 200/- and imprison till the rising of the court. the commission of offence is as early as june, 1987. after that it appears that the petitioner applied for the job and he was appointed as labour in the government printing press, tarabai park, kolhapur as a 'mazdoor'. after having worked on that post for two years, it came to the notice of the concerned authority that this conviction entered by the magistrate against the petitioner found to be a suppression of material facts at the time of making the application and he was sought to be terminated on that count. the said termination was challenged by the petitioner as complaint no. complaint (ulp) no. 213 of 1990. by his judgment dated 2nd february, 1998 the labour court, kolhapur set aside the termination of the petitioner.3. when the petitioner came to know that the conviction entered by the magistrate against him for fine of rs. 200/- and imprisonment till rising of the court will adversely affect his job, he has chosen to challenge the conviction by filing the appeal before the sessions judge, kolhapur as criminal appeal no. 270 of 1991. since the appeal was delayed to be filed, he filed an application for condonation of delay in filing the appeal. the learned appellate court dismissed the application for condonation of delay on the ground that there is no provision to condone delay in the criminal procedure code. consequently the appeal also was dismissed as time barred.4. i heard counsel for the petitioner shri marwadi and shri. salvi, a. p. p. for state. as noted above, the petitioner would not have filed appeal unless the conviction entered by the court below adversely affect his job prosperity. therefore, the petitioner had made sufficient ground to condone the delay in entertaining the appeal. the observation of the learned sessions judge that there is no provision for condoning the delay in cr. p.c. may be technically correct. but every appellate court is entitled to exercise the discretion under section 5 of the limitation act. section 5 of the limitation act irrespective of the various types of jurisdiction given to the appellate authority, has the power to condone delay in filing appeal, if the appellant gives sufficient grounds for filing the appeal belatedly. therefore, rejection of the appeal by the petitioner on the ground of limitation is not proper. an opportunity ought to be given by the appellate authority if the appellate authority finds that the delay is satisfactorily explained even if there is no specific provision in the cr. p.c. for condonation of delay. according to me, the grounds stated by the petitioner for filing the appeal belatedly is adequate ground and the appellate authority ought to have heard the appeal on merits condoning the delay. accordingly i set aside the order passed by the appellate authority and direct that appeal filed by the petitioner be disposed of on the merit.5. in the result, writ petition is allowed.rule is made absolute in terms of prayer clause (d). no orders as to costs.prayer clause (d):-or in the alternative the matter be remanded back to the court of learned additional sessions judge, kolhapur for being heard on merits after condoning the delay of 1086 days.