Dr. Arun Kumar Dandapat Vs. Collector and District Magistrate, Cuttack and Other - 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]. order1. heard learned counsel for the petitiontuesday, july 29, 2003er and learned additional government advocate for the opposite parties. the petitioner has prayed for a direction to opposite patties 2 to 4 to grant the certified copy of station diary entry no. 208 dated 8-9-1998 made in the station diary maintained by the cantonment police station, cuttack. it is stated that though application for issuance of certified copy was made on 1-12-2000, no such copy is being granted and non-consideration of the application of the petitioner for grant of certified copy for a long period, in fact, amounts to denial of grant of such certified copy.2. the moot question is whether such a certified copy can be granted. sections 74 to 78 of the indian evidence act deal with 'public documents'. section 74 is extracted here-under:--'74. public documents.--the following documents are public documents : (1) documents forming the acts or records of the acts,-- (1) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive,of any part of india or the commonwealth, or of a foreign country ; (2) public records kept in any state of privatedocuments.' learned counsel for the petitioner has submitted that station diary entries are documents forming the records of the acts of public officers, as envisaged under section 74(1)(iii). he has relied upon the decision reported in a. i. r. 1925 allahabad 413 (mohan singh v. emperor), where first information report was considered to be a 'public document'. similar logic can beextended to the entries in a station diary. learned counsel appearing for the state has also fairly submitted that station diary entry can be considered to be a public document as envisaged under section 74 of the indian evidence act.3. section 76 of the indian evidence act is as follows :--'76. certified copies of public documents.--every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies. explanation.--any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.' a perusal of the aforesaid provision makes it clear that on payment of legal fees, the public officer having the custody of public document is to grant certified copy. keeping in view the provisions contained in section 76 including the explanation, there cannot be any doubt that certified copy of the station diary entry should have been granted.4. in aforesaid view of the matter, the writ application is allowed and opposite parties 2 and 4 are directed to grant certified copy of the station diary entry to the petitioner within a period of ten days from the date of communication of the present order. this order shall be communicated to opposite parties 2 and 4 requisites shall be filed by tuesday (19-2-2001).5. writ application allowed.

Judgment:
ORDER

1. Heard learned counsel for the petitionTuesday, July 29, 2003er and learned Additional Government Advocate for the opposite parties. The petitioner has prayed for a direction to opposite patties 2 to 4 to grant the certified copy of Station Diary Entry No. 208 dated 8-9-1998 made in the Station Diary maintained by the Cantonment Police Station, Cuttack. It is stated that though application for issuance of certified copy was made on 1-12-2000, no such copy is being granted and non-consideration of the application of the petitioner for grant of certified copy for a long period, in fact, amounts to denial of grant of such certified copy.

2. The moot question is whether such a certified copy can be granted. Sections 74 to 78 of the Indian Evidence Act deal with 'public documents'. Section 74 is extracted here-under:--

'74. Public Documents.--The following documents are public documents :

(1) Documents forming the acts or records of the acts,--

(1) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive,of any part of India or the Commonwealth, or of a foreign country ;

(2) Public records kept in any State of privatedocuments.'

Learned counsel for the petitioner has submitted that station diary entries are documents forming the records of the acts of public officers, as envisaged under section 74(1)(iii). He has relied upon the decision reported in A. I. R. 1925 Allahabad 413 (Mohan Singh v. Emperor), where First Information Report was considered to be a 'public document'. Similar logic can beextended to the entries in a station diary. Learned counsel appearing for the State has also fairly submitted that station diary entry can be considered to be a public document as envisaged under section 74 of the Indian Evidence Act.

3. Section 76 of the Indian Evidence Act is as follows :--

'76. Certified copies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.

Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.'

A perusal of the aforesaid provision makes it clear that on payment of legal fees, the public officer having the custody of public document is to grant certified copy. Keeping in view the provisions contained in section 76 including the Explanation, there cannot be any doubt that certified copy of the Station Diary Entry should have been granted.

4. In aforesaid view of the matter, the writ application is allowed and opposite parties 2 and 4 are directed to grant certified copy of the Station Diary Entry to the petitioner within a period of ten days from the date of communication of the present order. This order shall be communicated to opposite parties 2 and 4 Requisites shall be filed by Tuesday (19-2-2001).

5. Writ application allowed.