Bombay High Court
Dharmendra Wanjari Partner Of Ms ... vs Anita Rambhau Kapse on 5 May, 2025
2025:BHC-NAG:4960
1 CRIWP262.25 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 262 OF 2025
PETITIONERS : Dharmendra Wanjari,
Partner of M/s Sankalp Developers,
R/o Sambodhi Colony, Maitraya
Buddha Maidan, Line No. 4717 to 31,
A-2122, Vithoba Dant Manjan Company,
Vaishali Nagar, Nagpur.
VERSUS
RESPONDENTS : 1] Anita Rambhau Kapse,
Aged 37 years, Occu. Housewife,
R/o Plot No.3, Sanmarg Nagar,
Hudkeshwar Road, Nagpur.
2] State of Maharashtra,
through its Superintendent of Central Prison,
Nagpur.
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Mr. A. D. Bhate, Advocate for the petitioner.
Respondent no.1 and her counsel absent.
Ms. Sonia Thakur, A.P.P. for respondent no.2.
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CORAM : M. W. CHANDWANI, J.
DATE : MAY 05, 2025
ORAL JUDGMENT
1. RULE. Rule made returnable forthwith. By consent of
the learned counsel for the parties, the matter is taken up for final
disposal.
2 CRIWP262.25 (J).odt
2. By this petition, the petitioner challenges the order
passed by the State Consumer Disputes Redressal Commission,
Nagpur, (hereinafter referred to as "the State Commission" for short)
dated 05.11.2024, thereby rejecting the application for condonation
of delay in preferring appeal under Section 27-A of the Consumer
Protection Act, 1988 (hereinafter referred to as "the Act of 1988" for
short) against the judgment and order of conviction passed by the
Additional District Consumer Disputes Redressal Commission, Nagpur
(hereinafter referred to as "the District Commission" for short) for
non-compliance of the order dated 20.01.2023.
3. In a complaint filed by respondent no.1 which came to
registered as case No. CC/12/1997 before the District Commission,
the petitioner vide order dated 20.01.2014 was directed to execute
the sale deed in respect of a plot which he agreed to sell to
respondent no.1 ; or in the alternative, pay Rs.1,62,000/- with
interest @ 12% per annum from 14.07.2010. Since, the petitioner
could not comply the order, the execution proceedings bearing No.
EA/15/10 came to be filed under Section 27 of the Act of 1988.
During pendency of the execution proceedings, the petitioner was
taken in custody in July-2022 and ultimately, the District Commission
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convicted the petitioner by the order dated 20.01.2023 for non-
compliance of the order dated 20.01.2014 of the District Commission
He was sentenced to suffer Simple Imprisonment for three years and
to pay a fine of Rs.25,000/-. Feeling aggrieved by the said order, an
appeal came to be filed before the State Commission along with an
application for condonation of delay which came to be registered as
Misc. Application No. MA/24/82. In the said appeal, an application
for suspension of sentence was also filed by the petitioner. No order
was passed by the State Commission on the application for suspension
of sentence for considerable time. Therefore, the petitioner moved
before the Division Bench of this Court by preferring Criminal Writ
Petition No. 884/2024 for directions. This Court vide order dated
24.10.2024 directed the State Commission to decide the petitioner's
application for suspension of sentence within seven working days.
The State Commission, on 05.11.2024, instead of deciding the
application for suspension of sentence, decided the application for
condonation of delay which was already closed for orders. By the
said order the State Commission dismissed the application for
condonation of delay caused in preferring appeal. Feeling aggrieved
by the order of dismissal of delay application, the present writ petition
is filed for quashing the impugned order dated 05.11.2024.
4 CRIWP262.25 (J).odt
4. Though respondent no.1 was duly served, nobody
appears on her behalf. Respondent no.2 State is represented by
learned Additional Public Prosecutor.
5. Concededly, filing an appeal is a statutory right of a
convict under Section 374 of the Code of Criminal Procedure. Right
to appeal from a judgment of conviction affecting the liberty of a
person keeping in view of expansive definition of Article 21 of the
Constitution of India is also a Fundamental Right (see. Dilip S.
Dahanukar .vs. Kotak Mahindra Co. Ltd.1) . The Court should not
dismiss the appeal as time-barred without examining the reasons for
the delay. More so because the right to appeal which concerns with
the liberty of an individual, is a Fundamental Right under Article 21
of the Constitution (see. Rajendra .v. State of Rajasthan2). The
application for condonation of delay in filing appeal should not be
dismissed on mere technicalities without a substantive assessment of
the appellant's reasons.
6. In the present case, the petitioner was taken in custody in
July-2022 when the execution proceedings were pending before the
1 (2007) 6 SCC 528
2 (1982) 3 SCC 382
5 CRIWP262.25 (J).odt
District Commission and thereafter the conviction was recorded on
20.01.2023. At the time of filing of appeal along with an application
for condonation of delay, the appellant was in jail rather, till the date
the appellant is in jail from July-2022.
7. Filing an appeal is not a simple process. It requires
scrutiny of the judgment, instructions from the accused and also
require payment of fine. For completing the formalities mentioned
above, the involvement of the convict/appellant is very much
essential. Though he might have been served with a copy of the
impugned judgment on the date of decision, the appellant was taken
to jail immediately. In the application for condonation of delay, apart
from the ground of petitioner languishing in jail, the ground of
financial constraint was also taken. It is also a matter of record that
post conviction, the appellant was not produced either before the
District Commission or the State Commission, to enable him to give
proper instruction to the counsel for filing appeal and to arrange to
deposit the fine amount, which was required to be deposited before
filing of appeal.
8. As stated above, filing of an appeal by the petitioner
6 CRIWP262.25 (J).odt
concerns with his liberty which is a Fundamental Right under
Article 21 of the Constitution. Therefore, the delay is to be liberally
construed. It appears that one of the reason mentioned in the
application for condonation of delay is non-receipt of certified copy of
the judgment, despite it was served on the petitioner on the date of
conviction. The application for condonation of delay has been
rejected on this ground without considering the broader probability
when the petitioner is a convict and languishing in Central Prison at
Nagpur, which itself is evident of his non-availability to instruct his
counsel and he remained at the mercy of the jail authority. This
reason was sufficient and reasonable for the State Commission to
condone the delay, rather than dismissing the application on technical
ground. The State Commission ought to have considered the question
of liberty which is a Fundamental Right of a person and ought to have
condoned the delay considering the right to appeal ensuring personal
liberty as the Fundamental Right. Therefore, the order of the State
Commission does not stand to the reasons.
9. Now the question here is that in spite of having an
alternate remedy under Section 27-A of the Act of 1988 of filing an
appeal before the National Commission, New Delhi whether the writ
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petition can be entertained ?
10. In Whirlpool Corporation .vs. Registrar of Trade Marks,
Mumbai and others3, relied upon by the learned counsel for the
petitioner, the Hon'ble Supreme Court has made certain observations
with regard to the jurisdiction of the High Court in entertaining a writ
petition under Article 226 of the Constitution, in spite of the
availability of alternate statutory remedies. It was observed that
where an authority against whom the writ is filed is shown to have
had no jurisdiction or had purported to usurp jurisdiction without any
legal foundation, the High Court has discretion to entertain or not to
entertain a writ petition. But in case of an effective and efficacious
alternate remedy, the High Court has self imposed restrictions and
would not normally exercise its jurisdiction. In paragraph 15 of the
judgment, the Hon'ble Supreme Court has observed as under :
"15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a Writ
Petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective
and efficacious remedy is available, the High Court
would not normally exercise its jurisdiction. But the
alternative remedy has been consistently held by this
Court not to operate as a bar in at least three
3 AIR 1999 SCC 22
8 CRIWP262.25 (J).odt
contingencies, namely where the writ petition has been
filed for the enforcement of any of the Fundamental
Rights or where there has been a violation of the
principle of natural justice of where the order of
proceedings are wholly without jurisdiction or the vires
of an Act is challenged. There is a plethora of case law
in this point put to cut down this circle of forensic
Whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still
hold the field."
11. A reference can also be made to the decision in Bikramjit
Singh .vs. State of Punjab4, wherein the Hon'ble Supreme Court has
expressed that in the matters concerned with personal liberty, the
Court should not be too technical and must lean in favour of personal
liberty.
12. In M/s Radha Krishan Industries .vs. State of Himachal
Pradesh and others5 , the Hon'ble Supreme Court in paragraph 24, has
held as under :
"24. The High Court has dealt with the maintainability
of the petition under Article 226 of the Constitution.
Relying on the decision of this Court in Assistant
Commissioner (CT) LTU, Kakinada and others v Glaxo
Smith Kline Consumer Health Care Limited20, the High
Court noted that although it can entertain a petition
under Article 226 of the Constitution, it must not do so
when the aggrieved person has an effective alternate
4 (2020) 10 SCC 616
5 (2021) 6 SCC 771 (Civil Appeal No. 1155 of 2021)
9 CRIWP262.25 (J).odt
remedy available in law. However, certain exceptions
to this "rule of alternate remedy" include where, the
statutory authority has not acted in accordance with
the provisions of the law or acted in defiance of the
fundamental principles of judicial procedure; or has
resorted to invoke provisions, which are repealed; or
where an order has been passed in violation of the
principles of natural justice. Applying this formulation,
the High Court noted that the appellant has an
alternate remedy available under the GST Act and thus,
the petition was not maintainable.
13. Thus, the power under Article 226 of the Constitution is
plenary in nature and is not limited by any other provision of the
Constitution. The power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorary for the enforcement of any
of the Fundamental Rights contained in Part III of the Constitution,
but also for 'any other purpose'. The High Court, having regard to the
facts of the case, has a discretion to entertain or not to entertain a
writ petition. It has a self imposed restriction if an effective and
efficacious remedy is available. The availability of alternate remedy
does not operate as a bar at least when question of personal liberty is
involved, which is directly concerned with the Fundamental Right.
14. In the present case, the petitioner is in jail since July-
10 CRIWP262.25 (J).odt
2022 i.e. for about two years and nine months. Even prior to
recording conviction by the District Commission, he was in jail. The
appeal was presented before the State Commission along with the
application for condonation of delay as well as the application for
suspension of sentence under Section 389 of the Cr.P.C.
15. Notably, sub-section 3 of Section 389 of the Cr.P.C. gives
right to a convict to get the conviction suspended and a mandatory
duty is cast on the convicting Court to suspend the sentence, if the
term sentence is not exceeding three years or where the offence for
which he has been convicted is bailable one. Evidently, the District
Commission has not awarded the sentence for more than three years.
No application was moved before the District Commission. In that
scenario, if the application for suspension of sentence was filed before
the State Commission, it ought to have been decided without delay. In
spite of pendency of the application for suspension of sentence before
the State Commission/Appellate Court, it was not entertained for
more than three months. The petitioner had to approach the Division
Bench of this Court for seeking direction to decide the application for
suspension of sentence and in spite of the direction of this Court, the
application for suspension of sentence was not decided. The reason
11 CRIWP262.25 (J).odt
given was non-availability of Coram and in stead of deciding the
application for suspension sentence, the State Commission decided
the application for condonation of delay, which frustrated the
application filed by the petitioner for suspension of sentence.
16. It is informed at the bar that there is no Judicial Member
available with the State Commission since no appointment has been
made in this regard. The petitioner could not get his sentence
suspended from the District Commission though the sentence is for
not more than three years because he was in jail. Even the State
Commission did not bother to decide the application for suspension of
sentence expeditiously rather, rejected the application for
condonation of delay on technical ground ignoring that the right of
liberty is involved. Thus, the State Commission has not acted in
consonance with fundamental principles of judicial procedure.
17. As held in M/s Radha Krishan (supra), if the Statutory
Authority has acted in defiance of fundamental principles of judicial
procedure, the writ petition can be entertained by the High Court.
Therefore, a case is made out for entertaining the writ petition.
18. In view of the reasons mentioned above, the order dated
12 CRIWP262.25 (J).odt
05.11.2024 passed by the State Consumer Disputes Redressal
Commission, Nagpur rejecting the application for condonation of
delay, is set aside. The Misc. Application No. MA/24/82 is allowed.
The delay is condoned.
19. Needless to mention, the consequence of this order would
be that the appeal shall be heard on merits along with pending
applications. Since the Division Bench of this Court has already
directed to decide the application for suspension of sentence within
seven days, the State Commission to decide the application for
suspension of sentence within seven days from the date of receipt of
this order.
20. Rule accordingly. The petition stands disposed of.
(M.W.Chandwani, J.)
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 08/05/2025 21:49:03
