Gauhati High Court
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Page No.# 1/5
GAHC010102862025
2025:GAU-AS:7192
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/534/2025
SAYNA BEGUM BARBHUIYA
W/O MD. FARIZ UDDIN BARBHUIYA
R/O VILL- UTTAR KANCHANPUR
P.O JANAKIBAZAR, P.S.PANCHGRAM
DIST. HAILAKANDI, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE LEARNED PP, ASSAM
Advocate for the Petitioner : MR M J QUADIR, MR. A K HANNAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
02.06.2025
Heard Mr M J Quadir, learned counsel for the applicant, Sayna Begum Barbhuiya,
who has filed this application under Section 5 of the Limitation Act, 1963, with prayer
for condonation of delay of 1386 days, in filing the connected criminal revision,
challenging the Judgment and Order dated 20.03.2021, in connection with Criminal
Appeal No. 66/2019, and the Judgment and Order dated 15.11.2019, passed by the
learned Chief Judicial Magistrate, Hailakandi, in connection with GR Case No.
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821/2016, whereby and whereunder the applicant, Sayna Begum Barbhuiya, was
convicted under Sections 448 IPC and sentenced to undergo Simple Imprisonment for 1
(one) month and to pay a fine of Rs. 1,000/-, with default stipulation, and under Section
323 IPC, and sentenced to undergo Simple Imprisonment for 1 (one) month and to pay a
fine of Rs. 1,000/-, with default stipulation. Aggrieved by this order, an appeal has been
preferred and vide impugned Judgment and Order dated 20.03.2021, in Criminal Appeal
No. 66 of 2019, the appeal was dismissed and the conviction and sentence was upheld
by the learned appellate Court.
2. It is submitted on behalf of the applicant that delay occurred, owing to COVID-19
pandemic, during 2021 to 2022 and thereafter, owing to misinterpretation of the
Judgment of the learned appellate Court, by the applicant and her counsel. After
payment of fine, the case was fixed for appearance of the victim, w.e.f. 02.05.2022 upto
26.07.2024. The victim has passed away. Thereafter, the case was fixed for death report
of the victim. The applicant was unaware about serving her sentence, till the receipt of a
notice from the learned Trial Court. The engaged counsel did not inform her about the
conviction and sentence, being upheld by the learned appellate Court.
3. The learned counsel for the applicant has relied on the decision of this Court
(Shillong Bench), in connection with Ka Brill Kharkongor Jaid Dkhar -Vs- Ka
Jungiem Kharkongor and Others; reported in 1985 (1) GLR 314, wherein it has been
observed that-
"As such, the crucial question before us as well as the learned Counsel for both
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the parties is whether the Defendants should suffer for the fault of their lawyer.
Learned Counsel for the Defendants categorically stilted that the Defendants
should not suffer for the wrong advice given by their lawyer. Learned Counsel
for the Appellant-Plaintiff faintly objected to the submission. We are of the firm
opinion that a litigant should not suffer for the inaction, deliberate omission or
misdemeanour of his lawyer. In India, under our present adversary legal system
the parties always appear in Court through their advocates. In India, the
obligation of the litigants is to choose his advocate, instruct him, pay the fees
demanded by him and then trust the learned advocate to do the rest of the
things. The party may be an (sic) or a rustic villager but they do not have
knowledge of the Court procedure. The party remains supremely confident that
his lawyer will look after his interest, They implicitly follow the instructions of
their lawyers. If, during the proceedings the lawyer commits a mistake in giving
wrong instruction to his (sic)elents, like the present one, should the litigant
suffer? The litigants are not acquainted with the procedural law. In the instant
case the Defendants never dreamt that they would so suffer in obeying the
instructions of their lawyer. The question as to whether a party should suffer
for the inaction, deliberate omission, negligence or misdemeanour of his
lawyer, came up for consideration before the Supreme Court in Rafiq and
Another Vs. Munshilal and Another, and, their Lordships answered the
question thus:
The answer obviously is in the negative. May be that the learned Advocate
absented himself deliberately or intentionally. We say nothing more on that
aspect of the matter. We cannot be a party to an innocent party suffering
injustice merely because his chosen advocate defaulted.
(Underscored by us)
Even deliberate and intentional act of the lawyer in absenting on the date of
hearing was considered to be sufficient found for restoring the appeal for
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hearing. In Goswami Krishna Murarilal Sharma v. Dhan Prakash, (1981) 4
SCC 574 their lordships took the same view. In Smt. Lachi Tewari and Others
Vs. Director of Land Records and Others, their Lordships took the (sic) Same
view. Shortly put, the principle is that an innocent litigant should not suffer for
the inaction, omission or misdemeanour of his lawyer. These decisions were
relied in State of Assam Vs. Basanta Burman and Others, and it has been held
that no innocent litigant should suffer on account of the inaction of his
lawyer."
4. The applicant has also relied on the decision of this Court in Asish Das -Vs- State
of Assam, reported in 2023 (3) GLT 832, wherein it has been observed that-
"28. From the above discussion, it is also observed that the Hon'ble Apex Court
has expressed the view that wrong legal advice in absence of any proper legal
guidelines, cannot be held negligence on the part of the respondent and being
layman she may not have the knowledge about the legal provisions. More so, if
the respondent is not given the chance to raise the point under Section 197 of
the Cr.P.C. there may be prejudice to the petitioner, and at the same time it is
also seen that the present petitioner will get ample opportunity to contest the
revision petition. Thus, no prejudice will be caused to the present petitioner, if
the revision petition pending before the learned Sessions Judge, Karimganj is
allowed to be proceeded by condoning the delay in preferring the said revision
petition.
29. More so, the Hon'ble Apex Court in the case of Ramlal Vs. Rewa Coalfields
Ltd., reported in AIR 1962 SC 361, expressed the view that discretion should be
exercised in favour of the party and delay should be condoned. The length of
delay is not a matter only for allowing the condonation of delay and the same
can be legally approached while dealing with such kind of petition and the
Court should take liberal approach to provide justice while dealing with the
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same."
5. Learned Additional Public Prosecutor Mr B Sarma, has raised serious objection,
stating that Section 5 of the Limitation Act, connotes that every day's delay has to be
explained to the satisfaction of the Court. Four years' delay is not justified. The
applicant does not deserve any relief.
6. I have considered the submissions at the Bar with circumspection.
7. I have also relied on the decisions of this Court referred to, by the learned counsel
for the applicant. I have taken into consideration that the applicant being an illiterate
woman was not aware of the procedure of the Court and she was not correctly informed
by her engaged counsel.
8. I have also considered that the pandemic delinked the information ought to have
been received by the applicant.
9. In view of my foregoing discussions, the delay although inexplicable, is hereby
condoned.
10. The Interlocutory Application stands disposed of.
11. Registry to register the connected revision petition.
JUDGE
Comparing Assistant
