Calcutta High Court (Appellete Side)
Pankaj Kumar vs Rafique Ahmed @ Bechu Mia & Anr on 6 June, 2022
06.06.2022
Item No.07
Suman
Ct.42
(Via Video Conference)
CRMSPL 49 of 2016
With
I.A. No. CRAN 2 of 2022
Pankaj Kumar
Vs.
Rafique Ahmed @ Bechu Mia & Anr.
Mr. Dayashankar Mishra
Mr. Rajendra Banerjee
Mr. Sushil Kumar Mishra
...for the petitioner
Mr. Apurba Kumar Datta
...for the opposite parties
This is an application for restoration of an
application under Section 5 of the Limitation Act by
recalling the order dated 4th March, 2022 passed by
this Court.
A copy of the application has been served and
affidavit of service is filed.
Affidavit of service be kept with the record.
It is pertinent to mention the background of the
instant proceeding. S.L. Case No.239 of 2014 (SL Case
No. 55 of 2005) under Section 3 (a) of the RP (UP)
Act, 1966 was disposed of by the learned 6th Judicial
Magistrate at Howrah recording an order of acquittal
on 31st October, 2014.
2
The petitioner herein, being the original
complainant filed an application for special leave to
appeal which was registered as CRMSPL 49 of 2016.
Along with the said appeal an application under Section
5 of the Limitation Act was filed which was registered
as CRAN No.2054 of 2016 (New Number CRAN 1 of
2016).
The date of hearing of the said application under
Section 5 of the Limitation Act was fixed on 4 th March,
2022. On that date the petitioner did not take any
step. Since the matter is pending for about six years,
the petition under Section 5 of the Limitation Act was
dismissed for default and in view of dismissal of the
application under Section 5 of the Limitation Act, the
application for special leave to appeal was also
dismissed.
By filing the instant application it is stated on
behalf of the petitioner that one Mr. Krishna Das
Podder filed the application for special leave to appeal
and the application under Section 5 of the Limitation
Act. However, the name of Mr. Podder was deleted
from the panel of the prosecutors on behalf of the
Railways during the pendency of the instant
applications. Therefore, Mr. Podder did not take any
step in the instant appeal. Till 2019 no step was taken
in the instant proceeding on behalf of the petitioner.
3
Subsequently, sometimes in March, 2019 Mr.
Dayashankar Mishra, advocate was engaged in this
case. However, he was prevented from taking any
step as the record of the appeal was lying with the
erstwhile advocate Mr. Krishna Das Podder and due to
Covid pandemic Mr. Mishra could not collect the brief
in connection with the instant proceeding. Only on 25 th
March, 2022 Mr. Mishra came to know that the
application under Section 5 of the Limitation Act was
also dismissed.
Under such circumstances, it is submitted by the
petitioner that the application under Section 5 of the
Limitation Act and the application for special leave to
appeal may be restored to its file.
The learned advocate for the private respondent,
on the other hand, submits that Section 362 of the
Code of Criminal Procedure stands as a bar in the
matter of restoration of the application under Section 5
of the Limitation Act as well as CRMSPL 49 of 2016.
Section 362 of the Code of Criminal Procedure
runs thus:-
"362. Court not to alter judgment. -
Save as otherwise provided by this Code or by
any other law for the time being in force, no
Court, when it has signed its judgment or final
order disposing of a case, shall alter or review
the same except to correct a clerical or
arithmetical error."
It is needless to say that Section 362 is a general
provision that debars all Courts from altering its
judgment after it was signed.
However, Section 482 operates in a different
sphere. Section 482 confers inherent power to this
Court to make such orders to give effect to any order
under this Code, or to prevent abuse of the process of
any Court or otherwise to secure ends of justice.
Justice demands that an appeal should be
disposed of in a contested manner. The petitioner being
the Inspector of Railway Protection Force filed the
application for special leave to appeal along with an
application under Section 5 of the Limitation Act. It is
true that the application for special leave to appeal was
filed after the expiry of 503 days. However, the case of
the petitioner was not presented before this Court when
the order dated 4th March, 2022 was filed due to the fact
that the filing advocate was depanelled from the panel
of the Railways. Subsequently, in 2019 another panel
was prepared and Mr. Dayashankar Mishra, advocate
was engaged in this case. He had no paper in respect
of the instant proceeding. He also could not collect such
papers from Mr. Podder, the erstwhile advocate.
In view of such circumstances, this Court is of the
view that the order dated 4 th March, 2022 ought to be
recalled and the application under Section 5 of the
Limitation Act as well as the application for special leave
to appeal ought to be restored to its file.
Accordingly, the instant application is allowed on
contest subject to payment of cost of Rs.10,000/- to be
paid to the High Court Legal Services Authority within
two weeks from the date of this order.
The matter be listed in the monthly list of July,
2022.
(Bibek Chaudhuri, J.)
