Madras High Court
Hanif K.Thara vs State Through on 8 November, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 08/11/2022
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.RC(MD)No.498 of 2021
and
Crl.MP(MD)No.5336 of 2021
1.Hanif K.Thara
S/o.Khader Thara,
Proprietor,
M/s.Unik Traders,
140, Old Tharugupet,
Bengaluru-560 053.
2.Asif H.Thara : Petitioners/Respondents/
A1 and A2
Vs.
State through
Inspector of Police,
SPE, CBI, ACB,
Madurai. : Respondent/Petitioner/
Complainant
Prayer:- This Criminal Revision has been filed
under section 397 r/w 401 of the Criminal Procedure Code,
to call for the records of the order, dated 28/04/2021 in
Crl.M.P No.4491 of 2020 in unnumbered Crl.RC No.- of
2020) on the file of the Principal District and Sessions
Judge, Madurai and set aside the same as illegal and pass
such further or other orders.
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2
For Petitioners : Mr.B.Satishsundar
For Respondent : Mr.C.Muthu Saravanan
Special Public Prosecutor
for CBI
O R D E R
This Criminal Revision has been filed seeking to
set aside the order, dated 28/04/2021, made in Crl.M.P
No.4491 of 2020 in unnumbered Crl.RC No. - of 2020) on
the file of the Principal District and Sessions Judge,
Madurai.
2.The facts in brief:-
The respondent namely the Inspector of Police
filed Crl.MP No.4491 of 2020 before the Principal
District Judge, Madurai, with the following averments:-
An appeal has been preferred against the judgment
that was passed by the Chief Judicial Magistrate,
Madurai, dated 21/03/2018 in CC No.1 of 2014 with a
delay. The copy application was filed, on 27/03/2018. The
certified copy was received, on 21/07/2018. Comments have
been offered by the Superintendent of Police, CBI/ACB,
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Chennai, for preferring appeal, on 12/04/2018. The
Superintendent of Police, CBI/ACB, Chennai, accorded
permission in filing the appeal, on 18/04/2018. Later,
the Deputy Inspector General of Police, CBI, ACB, Chennai
passed an order, on 24/04/2018. The District Legal
Advisor, CBI, Chennai, recommended for preferring appeal,
on 01/05/2018. When it was sent to the Special Director
of CBI, New Delhi, on 15/05/2018, it was sent to the
Additional Legal Advisor to offer the opinion, on
23/05/2018. After going through the various stages, the
file was sent to the Director of CBI, Chennai, in the
month of June 2018. Again, it was sent to the Government
of India, for approval. The Assistant Legal Advisor,
Ministry of Law & Justice, Department of Legal Affairs
has offered his opinion, on 22/06/2018. After going
through the relevant process, a proposal was received, on
09/07/2018. So due to the above said reasons, the delay
occurred.
3.The above said petition was resisted by the
revision petitioners herein stating that the offence is
of the year between 2010 and 2012 and the case was
registered in 2014. The discharge application was filed
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in Crl.MP No.353 of 2014 and that was allowed, on
21/03/2018. Against which, revision has been preferred.
The explanation that has been offered by the petitioners
for the delay is not proper. The original petition was
presented before the court in August, 2018. It was
returned, on 29/08/2018 due to some defects. Again, it
was re-presented, on 27/08/2020, after a period of two
years. The reason assigned by the petitioners for
condoning the delay is not proper. So, according to them,
the period of delay has been calculated by the respondent
is also not correct.
4.That petition was heard by the Principal
District Judge, Madurai and accepted the explanation
offered by the respondent. It is also further observed
that the above said petition was returned by the Registry
on 21/09/2018 to rectify some defects. But without
specifying the date of compliance, it was returned.
Repeated approach made by the officials to the Registry
did not give any positive result. It was told that the
above said petition was mixed up with other bundles and
finally, it was traced out, on 06/08/2020 and handed over
to the respondent. On the next day itself, it was re-
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presented, on 07/08/2020. So according to the respondent,
the delay occurred beyond the control. That reason
assigned was accepted by the Principal District Judge,
Madurai and that was allowed by the impugned order, dated
28/04/2021.
5.Challenging the above said order, this revision
has been preferred and it was also heard by this court on
so many occasions. Finding that there was some sort of
complaint against the Registry of the Principal District
Court, Madurai, with regard to handing the petition, the
original records have been called for from the
jurisdictional court. The original petition has been
submitted by the Principal District Judge, Madurai,
wherein we find that the date of presentation is 25th
August 2018 and thereafter, it was taken on file only, on
05/10/2010. So, as contended by the respondent herein, it
is seen that the above said petition has been kept by the
Registry of the Principal District, Judge, Madurai. Even
without numbering the same for two years, all of a
sudden, it has been taken on file and notice was ordered
to the respondent. So for the above said reasons, the
respondent cannot be penalized.
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6.A short point, which arises for consideration
is whether the order of condoning the delay has been
judicially exercised by the revisional court in a proper
manner. Because it is settled position of law to the
effect that condonation of delay has been exclusively
within the discretion of the court. Unless the
discretionary power has been exercised in an unreasonable
and in a capricious manner, this court cannot interfere.
7.Even the learned counsel appearing for the
revision petitioner on record went through the judgment
of discharge, that was passed by the trial court, I am of
the considered view that such sort of exercise cannot be
done by this court sitting in the revisional
jurisdiction. Number of judgments have been cited by the
revision petitioner to show that the above said
discretionary power was not properly exercised by the
revisional court and the above said petition was allowed
on the ground that official machinery will always consume
time to process a particular file. It is also the finding
of the revisional court to the effect that when such an
order of discharge has been passed, opportunity must be
given to the respondent herein to put forward their
grievances.
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8.The learned counsel appearing for the revision
petitioner would submit that considering the oldness of
the offence, the revisional court ought not to have
entertained the delay condonation petition, as noted
above, there is a delay of 68 days in preferring the
appeal and the delay has not been properly mentioned in
the affidavit.
9.As mentioned earlier, the learned counsel
appearing for the revision petitioner would rely upon the
decision of the Hon'ble Supreme Court in the case of
Postmaster General and others Vs. Living Media Limited
[(2012)3 SCC 563], which is a famous case on this point,
wherein it has been stated that unless reasonable and
acceptable explanation for the delay is mentioned, that
should not be taken into consideration. The Government
Department cannot be given a separate treatment. This
judgment has been followed, whenever appeal and revision
preferred by the Government Departments with a delay. We
need not elaborate on the preposition of law.
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10.It is further seen from the records that was
submitted the revisional court, the revision on the basis
of the above said order was also taken on file and both
sides also made their submission and it was posted for
argument on 14/06/2020. Since CRP before this court is
stated to be pending, no posting was made by the
Principal District Judge, Madurai. So the Registry is
directed to transmit the entire papers to the Principal
District Judge, Madurai to restore the Crl. RC No.79 of
2021, for listing the matter for hearing.
11.The respondent has given detailed particulars
with regard to the movement of the file, one stage to
another stage. So I find that the reason that was
assigned by the respondent requires to be accepted, since
there was no enormous delay. But the delay occurred only
during the course of handing the bundle by the Registry
of Principal District District, Madurai, for which the
respondent as mentioned above should not be penalized.
Each and every aspect has been taken into account by the
revisional court. So the order that has been passed by
the revisional court does not suffer from any illegality
or irregularity.
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12.The contention on the part of the petitioner
to the effect that no affidavit has been filed by the
revision petitioner before the Principal District Judge,
Madurai, can be considered only as irregularity and
cannot be construed as illegality. The irregularity can
be cured at any point of time. But it appears that no
such contention has been raised before the revisional
court.
13.So the revision petition deserves dismissal
and accordingly, this it is dismissed. Consequently,
connected Miscellaneous Petition is closed.
08/11/2022
Index:Yes/No
Internet:Yes/No
er
To,
The Principal District and Sessions Judge,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN,J
er
Crl.RC(MD)No.498 of 2021
08/11/2022
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https://www.mhc.tn.gov.in/judis
