Shankar Adawal vs Central Bureau Of Investigation
2003 Latest Caselaw 810 Del

JUDGMENT

J.D. Kapoor, J.

1. The limited grievance of the petitioner is that inspite of accepting the contention of the petitioners that they have a right to be heard on the application under Section 473 CrPC filed by the respondent complainant seeking condensation of delay of four months, Shri P.K.Bhasin, learned ASJ vide impugned order dated 5th May, 2003 set upon to decide the said application which was beyond the revisional jurisdiction of the Court. The contention of the learned counsel for the petitioner that the matter be sent back to the learned CMM with the direction to give the petitioners an opportunity of being heard on the application under Section 473 CrPC filed by the respondent complainant regarding the condensation of delay has been fairly conceded by the learned counsel for the CBI. Even otherwise the following observations of the learned ASJ sufficiently make out a case for setting aside the impugned order and sending the parties back to the learned CMM for decision on the application under Section 473 CrPC. The observations are not only self-speaking but self-contradictory also. These are as under:-

"However, inspite of being of the view that the allegations against the accused were of a very serious nature the learned Chief Metropolitan Magistrate did not deal with the limitation point with the seriousness with which it should have been dealt and in fact has been dealt with quite lightly. As noted already the complaint was for the first time taken up by the learned Chief Metropolitan Magistrate for preliminary consideration on 2.4.02 on which date she entertained a doubt that the complaint was time barred and conveyed her doubt to the Legal Advisor of CBI who was present at that time. The learned Chief Metropolitan Magistrate did not spell out on 2.4.03 as to how she considered the complaint to be time barred. She only referred to section 5(2) of the Act and to section 468 CrPC. On behalf of CBI also this aspect has been taken casually. As noted earlier, on 2.4.02 the Legal Advisor of CBI had first submitted before the learned Chief Metropolitan Magistrate that the complaint was not time barred but then had sought time to seek clarification from the investigating officer and then on 4.4.02 an application for condensation of delay was filed by the complainant Shri B.S.Dogra(investigating officer) admitting that the complaint was time barred and that the delay was of around four months. However the complainant also did not spell out in that application as to how the complaint was considered to be time barred. Then again the learned Chief Metropolitan Magistrate in her order dated 5.4.02 by which she condoned the delay did not say a word as to how the complaint was time barred and simply accepting the contention of the complaint that the complaint was time barred and that the delay in the filing of the complaint was beyond the control of CBI went on to say that the delay had been duly explained and also that it was in the interest of justice also to condone the delay."

2. In view of the aforesaid observations there was no other option left with the learned ASJ than to either set aside the order of CMM or send back to the learned CMM for hearing the parties and not to take up the matter in his own hands as a revisionary court. It is for the court empowered to take cognizance to decide such question at first instance and not for the revisionary court.

3. Once the learned ASJ had come to the conclusion that the petitioners had a right to be heard by the CMM on the application under Section 473 CrPC and that the CMM did not deal with the matter with the seriousness with which it should have been dealt with, it was no more open to the learned ASJ to decide the application for condensation of delay himself. More so when the learned ASJ found that the CMM in her order dated 5th April, 2002 by which she condoned the delay did not say a word as to how the complaint was time barred and simply accepting the contention of the complainant that the complaint was time barred and that the delay in the filing of the complaint was beyond the control of CBI and that the delay had been duly explained. Thus from any aspect we may examine the impugned order it is unsustainable being self-contradictory and self-defeating and, therefore, has to go.

4. For the aforesaid reasons the petition is allowed and the impugned order, as well as the order passed by the learned CMM condoning the delay, is set aside as learned CMM was obliged to hear the petitioners before passing any adverse order. The learned CMM now shall hear both the parties on the point of limitation and decide the matter afresh and proceed further in accordance with the provisions of law. However the petitioner will have the liberty to challenge the order of the CMM both on the point of condensation of delay as well as on the merits as regards their summoning.

5. The parties shall appear before the learned CMM on 7th August, 2003.