Bijay Thakur vs Anil Biswas
2022 Latest Caselaw 2018 Cal

18.04.2022 Item No.25 Suman Ct.42 (Via Video Conference)

CRA 298 of 2019 With CRAN 1 of 2019 (Old CRAN 1864 of 2019) With CRAN 2 of 2020 (Old CRAN 596 of 2020) With CRAN 3 of 2020 (Old CRAN 690 of 2020) With CRAN 4 of 2020 (Old CRAN 4029 of 2020) With CRAN 5 of 2022 With CRAN 6 of 2022 with CRAN 7 of 2022

Bijay Thakur Vs.

Anil Biswas

Ms. Manaswita Mukherjee ....as Amicus Curiae

Mr. Bidyut Kumar Roy Ms. Rita Datta ...for the State

Ms. Manaswita Mukherjee, learned advocate has

entered appearance in this case as amicus curiae on

behalf of the appellant. The appellant went on pursuing

his grievance before this Court for a long time

assailing the judgment of acquittal passed by the trial

Court.

It is submitted by the learned amicus curiae that

the Memorandum of Appeal was filed after the expiry

of limitation. The petitioner who used to conduct the

case in person filed an application under Section 5 of

the Limitation Act which was registered as CRAN 7 of

2022. However, the special petition is not in form and

the delay has not been properly explained.

As such, the learned amicus curiae prays for

dismissal of the application under Section 5 of the

Limitation Act which was registered as CRAN 7 of 2022

with liberty to file another application under Section 5

of the Limitation Act afresh in accordance with law.

This Court has given anxious thought over the

matter. It is needless to say that dismissal of an

application under Section 5 of the Limitation Act

automatically makes a Memorandum of Appeal non

est. however, the Court must be alive to consider that

the petitioner regularly attended the Court and prayed

for hearing of his application under Section 5 of the

Limitation Act and subsequently the appeal. As the

application was not in form, nobody paid any heed to

the earnest prayer of the petitioner made repeatedly

before this Court.

Considering such circumstances, leave is granted

to the petitioner to file an application under Section 5

of the Limitation in proper form and law. Learned

amicus curiae is at liberty to pray for rejection of the

application under Section 5 of the Limitation Act as

withdrawn only after filing of a fresh application under

Section 5 of the Limitation Act.

It is further submitted by the learned amicus

curiae that the petitioner has preferred the

Memorandum of Appeal under the provision of Section

374(2) of the Code of Criminal Procedure. However,

subsequently upon the prayer of the petitioner made in

person this Court passed an order dated 25th February,

2022 converting the Memorandum of Appeal as an

application for special leave to appeal under Section

378(4) of the Code of Criminal Procedure.

It is submitted by the learned amicus curiae that

the appeal ought to have been filed under the proviso

2 of Section 372 of the Code of Criminal Procedure

because the case was originated from the police report

and the appellant ought to have been treated as the

victim of the original case which was disposed of by

the trial Court.

The amicus curiae is at liberty to prefer

supplementary Memorandum of Appeal under the

proviso 2 of Section 372 of the Code of Criminal

Procedure. This order is passed considering the fact

that the petitioner was conducting the case in person

and he had nobody to guide him.

It is further noted that this order is passed by this

Court invoking the provision of Section 482 of the

Code of Criminal Procedure considering the special

facts and circumstances of this case and the order

passed by this Court cannot be treated as a

precedence in any other proceeding or appeal.

The learned amicus curiae is requested to file the

supplementary Memorandum of Appeal and the

application under Section 5 of the Limitation Act within

three weeks from the date of this order.

The matter be listed for hearing on 12th May,

2022.

(Bibek Chaudhuri, J.)