State Vs. Siba Singh - Court Judgment

Excerpt:
- 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]. orderg.k. misra, j.1. before the committing magistrate, the court sub-inspector filed a memo declining to examine any one of the two witnesses to the actual commission of the crime. the committing court perused the police papers, heard arguments and committed the case to the court of sessions without examining any of the eye-witnesses to the occurrence. the learned sessions judge relying upon (1958) 24 cut. lt 146 : (air 1058 orissa 241) state v. anadi betankar held that the committing magistrate had no option but to examine the eye-witnesses and without such examination, the commitment was without jurisdiction.2. the law laid down in the aforesaid decision is not strictly accurate in view of the decision of the supremt court in air 1961 sc 674 shri ram v. state of maharashtra; air 1965 s.c 712 kirpal singh v. state of u. p. section 207-a, sub-section (4) cr.p.c lays down that the magistrate shall then proceed to take evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the magistrate is of opinion that it is necessary in the interest of justice to take the evidencs of any one or more of the other witnesses for the prosecution, he may take such evidence also.on analysis, the position is clear that if any of the eye-witnesses to the actual commission of the offence are produced by the prosecution, the magistrate is bound to take their evidence. even if the prosecution does not produce the witnesses to the actual commission of the offence the magistrate must decide for himself if ht it to examine any or all of those witnesses in the interest of justice. if after recording reasons, he comes to the conclusion that no such witness need be examined, it is open to him to direct commitment on other materials referred to in sub-section (6). this position was fully explained in (1966) 32 cut. lt 599 chintamani v. state. the learned sessions judge should have kept himself in touch with law and followed the correct view.3. the learned sessions judge's judgment can, however, be supported on the ground that the learned magistrate has given no reasons as to why he did not examine any one of the witnesses to the actual commission of the offence. on that ground alone, the commitment order must be set aside. the case would go back to the committing magistrate. he is directed to examine the two eye-witnesses before he records his final order of commitment or discharge.4. for reasons different from those which appealed to the learned sessions judge, the reference is accepted.

Judgment:
ORDER

G.K. Misra, J.

1. Before the committing Magistrate, the Court Sub-Inspector filed a memo declining to examine any one of the two witnesses to the actual commission of the crime. The committing Court perused the police papers, heard arguments and committed the case to the court of sessions without examining any of the eye-witnesses to the occurrence. The learned Sessions Judge relying upon (1958) 24 Cut. LT 146 : (AIR 1058 Orissa 241) State v. Anadi Betankar held that the committing Magistrate had no option but to examine the eye-witnesses and without such examination, the commitment was without jurisdiction.

2. The law laid down in the aforesaid decision is not strictly accurate in view of the decision of the Supremt Court in AIR 1961 SC 674 Shri Ram v. State of Maharashtra; AIR 1965 S.C 712 Kirpal Singh v. State of U. P. Section 207-A, Sub-section (4) Cr.P.C lays down that the Magistrate shall then proceed to take evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidencs of any one or more of the other witnesses for the prosecution, he may take such evidence also.

On analysis, the position is clear that if any of the eye-witnesses to the actual commission of the offence are produced by the prosecution, the Magistrate is bound to take their evidence. Even if the prosecution does not produce the witnesses to the actual commission of the offence the Magistrate must decide for himself if ht it to examine any or all of those witnesses in the interest of justice. If after recording reasons, he comes to the conclusion that no such witness need be examined, it is open to him to direct commitment on other materials referred to in Sub-section (6). This position was fully explained in (1966) 32 Cut. LT 599 Chintamani v. State. The learned Sessions Judge should have kept himself in touch with law and followed the correct view.

3. The learned Sessions Judge's judgment can, however, be supported on the ground that the learned Magistrate has given no reasons as to why he did not examine any one of the witnesses to the actual commission of the offence. On that ground alone, the commitment order must be set aside. The case would go back to the committing Magistrate. He is directed to examine the two eye-witnesses before he records his final order of commitment or discharge.

4. For reasons different from those which appealed to the learned Sessions Judge, the reference is accepted.